The Parties in Legal Proceedings in Irish Law

parties in legal proceedings

Are you confused about the parties in a civil legal action?

In this piece, I will, hopefully, clear up any confusion.

Sounds good? Let’s go.

The Plaintiff

The Plaintiff is the party who brings an action or claim against another party. A party can be an individual or a company.

The Defendant

The Defendant is the party against whom the claim is made. This can be an individual, partnership, limited company.

It is vitally important that before commencing legal proceedings you ascertain the correct defendant. For example, if you have had a bad paint job done by a painter called Mick do you sue Mick, or perhaps he has been trading as a limited company.

Or maybe he is in a partnership, with a registered business name, but you have never met the partner.

Remember, if you sue Mick and his company is the correct legal person to sue, you will be wasting your time and money, and your case will be thrown out of Court.

You need to carry out a search on the Companies Registration Office website to check out the situation. The CRO has registers of limited companies and registered business names.

A Minor Plaintiff

A minor plaintiff is a plaintiff under the age of 18 years when the legal proceedings commence, and must sue through through a next friend who will normally be the mother or father.

A Person of Unsound Mind

A person of unsound mind is also known as a person under a disability. He or she needs to sue through a next friend, too.

A Minor Defendant

A minor defendant-that is, a defendant under the age of 18 years-must defend legal proceedings through a guardian ad litem, as he cannot defend in his own name. The procedures for becoming a guardian ad litem is different in the three Courts (District, Circuit, High).

The Petitioner

If proceedings are brought by way of petition the person bringing them is the petitioner.

The Applicant

Sometimes there is no defendant as a person will bring an application to Court for something. This person is the Applicant.

The Respondent

The Respondent is the person against whom a petition or application is brought, for example in matrimonial proceedings.

The Co-Defendant

If more than one defendant is sued by the Plaintiff all defendants are co-defendants.

A Notice Party

A person or body who is not a party to the proceedings, but who may be affected by an order made in proceedings, is a Notice Party. The Notice Party can enter an Appearance in the proceedings and be heard in argument court.

The Attorney General

The Attorney General represents the State and the public interest in legal proceedings and is a necessary defendant when the constitutionality of a law is called into question.

Third Parties

Third parties are parties joined in eh legal proceedings by the defendant if the defendant alleges the third party is responsible if the plaintiff’s action succeeds.

Concurrent Wrongdoer

A concurrent wrongdoer is a party joined in the proceedings by the defendant from whom the defendant seeks a contribution or indemnity. The liability of concurrent wrongdoers is set out in section 11 of the Civil Liability Act, 1961.

Section 12 of the Civil Liability Act, 1961 sets out the extent of liability of the concurrent wrongdoer. In summary, each of the wrongdoers is each liable for the whole of the damage in respect of which they are concurrent wrongdoers.

Section 27 of the Civil Liability Act, 1961 sets out the procedure for claiming contribution from a concurrent wrongdoer.

Notice of Indemnity or Contribution

A notice of indemnity or contribution can be served by a defendant on one or more of the parties to the action. This includes a co-defendant or third party. No permission of the Court is necessary to serve such a notice.

Joining a Third Party

Joining a third party requires approval of the Court, although even if it is refused the defendant can bring separate legal proceedings for contribution against that intended third party. However, service of the notice seeking to join a third party to the proceedings must be served as soon as reasonably possible.

There are rules in each of the Courts for joining a third party to proceedings.

The Court has discretion, however, to refuse an order for contribution in an independent action for contribution.

Concurrent Wrongdoers in Personal Injuries Actions

Section 42 of the Personal Injuries Assessment Board act 2003 applies section 22 of the Civil Liability Act, 1961 in allowing claims for contributions between concurrent wrongdoers where the first concurrent wrongdoer settled with the Plaintiff.

Section 43 of the Personal Injuries Assessment Board act, 2003 applies section 18 of the Civil Liability Act, 1961. This means that an order to pay against a wrongdoer will not be a bar to an action against any other person who would, if sued, have been liable as a concurrent wrongdoer.

This means that non participating respondents are treated the same way as other respondents for the purpose of Civil Liability act, 1961.

How to Change a Child’s Surname in Ireland

change child's name

If you want to change a child’s surname there is three ways this can happen:

  1. In the Birth Register
  2. By Deed Poll
  3. By Common Usage

Birth Register-Re-Registration

If the child has been registered in the mother’s name alone the birth can be re-registered in the Register of Births to include the father’s name. This can be done in the following ways:

  • Both parents register the birth together using form CRA9
  • The mother can name the father and bring along an acknowledgement from the father that he is the father
  • The father can bring along a declaration form acknowledging he is the father and a declaration from the mother confirming he is the father
  • The mother and father can make a written request on production of a court order which names the father.

The Registrar in your local office or the hospital will have the necessary forms.

Birth Register-Changing the Child’s Name

If the parents marry, and they both agree, the surname can be changed in the Birth Register. Both names, however, must have already been on the Birth Register.

Changing Child’s Name by Deed Poll

This will not change the child’s name on the Birth Register. Changing by Deed Poll involves presenting the Deed Poll and the child’s birth certificate in the deed poll section of Central Office of the High Court.

Children between the ages of 14 and 18 can sign a Deed Poll themselves, provided they have consent of both parents. Children under 14 will need to have the Deed Poll executed (signed) on their behalf by a guardian with the consent of the other guardian (if any).

Generally, the father will need to agree to the change of name, and he will have to sign a form confirming agreement.

If the father’s consent is not available all is not lost. The mother will have to swear a grounding affidavit.

This grounding affidavit of the mother must set out the reasons why the change is being sought, the father’s last address (if known), confirmation that the parents were or were not married, whether they lived together as a family unit, why consent is not available, the last date of contact with the father, and whether the mother is sole guardian or not.

If the father’s name does not appear on the child’s birth certificate the mother will have to swear a supplemental affidavit confirming there are no courts orders in place in relation to guardianship, access, custody or maintenance and setting out what role, if any, the father has in the child’s life.

The deed poll will have to be printed on deed paper and it will state that the mother wishes that the child be called by his/her new surname from now on.

The documents that need to be submitted to the Deed Poll section of Central Office of the High Court will be

  • Birth certificate
  • Deed poll
  • Affidavit of witness
  • Grounding affidavit of mother that father is not consenting
  • Certified copies of birth cert, passport and court orders relating to guardianship

A solicitor can send in the necessary documents, but the Deed Poll Section will not accept the documents directly from the applicant by post.

You can then enrol the Deed Poll on a publicly accessible register in the Central Office of the High Court, although this is not necessary and you can use the Deed Poll and the child’s birth certificate together for administrative purposes. The National Driving Licence Service (NDLS), however, requires the deed poll be registered for the purposes of getting a driving licence.

Changing Child’s Name by Common Usage

You can change a name by common usage, and use this for official purposes. You need to show 2 pieces of formal identification in which you use this name.

If you are the sole guardian of a child you can do this without any difficulty; if you are joint guardian you will need the consent of the other guardian.

Conclusion

Changing a child’s surname is easier with the agreement of the other parent.

But it is not fatal if the other parent does not agree or cannot be contacted, and applications can be made to the Deed Poll section of Central Office of the High Court and the Senior Registrar will decide based on the circumstances of the case.

How to Pursue Arrears of Maintenance

arrears of maintenance

Have you a Court Order for maintenance but payments are not being made?

You can pursue the arrears of maintenance, and the creditor runs the risk of going to jail for contempt of court.

How do you pursue arrears?

Firstly, you must make an application for the issue of a summons. It shall be in writing (and may be by the lodgment with the Clerk of a completed draft form of summons) and shall include:

(a) a copy of the antecedent order concerned;

(b) the period(s) for which the monetary amounts directed to be paid by the antecedent order have not been duly paid;

(c) the amount of the arrears, and any amount provided by the antecedent order for costs and expenses which is unpaid;

(d) a statement that the applicant understands that the information included in the application may have to be proved on oath at the hearing of any summons issued on foot of the application.

The summons shall be in the Form 57.1 or Form 57.3 Schedule C. The summons shall, in addition to requiring the attendance of the defaulter at a sitting of the Court, also require the defaulter to complete, detach and lodge with the Clerk not less than one week before the date of the said sitting a statement of means and assets (in the Form 53.3 Schedule C, with the necessary modifications), which shall be attached to the summons.

Persons affected by garnishee order

A person served with an order who is unable to comply with the order may apply to the Court by notice of application in the Form 57.5 Schedule C to set aside or vary the order. A copy of the notice shall be served on the defaulter and on the applicant not later than seven days before the hearing of the application and the original notice shall be lodged with the Clerk not later than four days before the hearing of the application.

Warrant of detention

Where a failure by the maintenance debtor is treated as constituting contempt of court and an order of imprisonment is made, the warrant of detention shall be in accordance with Form 57.7 or 57.8Schedule C, as appropriate.

Application to purge contempt

  1. Where a person is imprisoned for contempt of court in accordance with section 9A of the Act of 1976:

(a) the person shall be notified in writing of the action required to purge his contempt;

(b) the Court may direct that, if the contempt has not previously been purged, the person shall be brought back before the Court at a place and time fixed by the Court.

Conclusion

The above is a summarised version only of what’s involved.

Even though you can follow this procedure yourself you might be better off engaging the services of a solicitor to ensure you are professionally represented and are not given the run around by somebody who does not hold Court Orders or their maintenance obligations in high regard.

How to Obtain Custody, Guardianship, or Access to a Child

custody guardianship access

Do you need to apply for guardianship or custody of a child, or access?

You can bring the application in the District Court where either party to the proceedings resides or carries on any profession, business or occupation.

Your hearing will be heard in private.

Guardianship applications and Court orders

An application to the Court  by the father of a child whose father and mother have not married each other and have not made a statutory declaration, for an order appointing him to be a guardian of the child shall be preceded by the completion by the applicant of a notice in the Form 58.1 Schedule C.

Such notice shall be served upon the mother and upon any other guardian of the child. The order of the Court granting such application shall be in the Form 58.2 Schedule C.

Applications to appoint or remove a guardian can also be made in other circumstances, for example where a child has no guardian or where a surviving guardian objects to the appointment of a testamentary guardian.

Application seeking Court’s direction

An application to the Court can be made for the court’s direction as to access, custody, or guardianship by a person who is a relative of a child, or has acted in loco parentis to a child and shall be preceded by the issue and service of a notice in the Form 58.15 Schedule C upon each guardian of the child. The order of the Court thereon shall be in the Form 58.16 Schedule C.

Application to vary/discharge

An application under section 12 of the Act for an order varying or discharging a previous order shall be preceded by the issue and service of a notice in the Form 58.21 Schedule C upon each of the other guardians or each of the guardians of the child as the case may be. The order of the Court thereon shall be in the Form 58.22 Schedule C.

Application for production of child

An application for the production of a child shall be preceded by the issue and service of a notice in the Form 58.23 Schedule C upon the person having custody of the child.

Custody/right of access -non compliance with direction

Where complaint is made to a Judge alleging an offence of failure or refusal to comply with the requirements of a direction given in an order the summons which may be issued and served upon the person against whom the offence is alleged shall be in the Form 58.28 or 58.29 Schedule C, as appropriate.

Service and lodgment of documents

Documents may be served upon the person to whom it is directed in accordance with the provisions of Order 10 of these Rules at least fourteen days or, in the case of proceedings certified as urgent under rule 2(2) hereof, at least two days, before the date of the sitting of the Court to which it is returnable.

The original of every such notice or order served shall, together with a statutory declaration as to service thereof, be lodged with the Clerk at least two days before the date of the said sitting.

Clerk to supply copies of orders

Where the Court makes an order under the Act, the Clerk shall give, or send by ordinary post, a copy of such order to each person in whose favour or against whom the order was made.

 

What’s set out above is an abbreviated version of the rules involved.

Always check the full version of the appropriate rules or get legal advice or representation.

How to Apply for Maintenance in the District Court

maintenance-district-court

You can apply for maintenance in the District Court where either party to the proceedings ordinarily resides or carries on any profession, business or occupation.

The application will be heard in private-only officers of the Court, the parties and their legal representatives, witnesses (subject to the provisions of Order 8 rule 2 of these Rules) and such other persons as the Judge in his or her discretion shall allow, shall be permitted to be present at the hearing.

An application for a maintenance order shall be preceded by the issue and service upon the respondent of a summons in the Form 54.1 or 54.2 or in the Form 54.3 or 54.4 Schedule C, as appropriate.

Application to discharge maintenance

An application by a maintenance debtor for the discharge of a maintenance order shall be preceded by the issue and service upon the maintenance creditor of a summons in the Form 54.9 Schedule C. The order of the Court granting the application shall be in the Form 54.10 Schedule C.

Application to discharge or vary order

An application by either party to the proceedings to discharge or vary a maintenance order shall be preceded by the issue and service upon the other party of a summons in the Form 54.11 Schedule C. The order of the Court granting the application shall be in the Form 54.12 Schedule C.

Interim order

An interim order made by the Court under section 7 of the Act shall be in the Form 54.13 Schedule C.

Payments to Clerk

Where the Court directs that payments under a maintenance order, a variation order or an interim order shall be made to the Clerk, such Clerk shall send a notice in the Form 54.18 Schedule C by prepaid ordinary post to the maintenance debtor indicating the place at which and the days and hours during which payments under the order should be made.

The Clerk shall give a receipt to the maintenance debtor for each payment made by him or her and shall transmit such payment to the maintenance creditor or, if authorised in writing by the maintenance creditor so to do, the Clerk may transmit the payment to the competent authority.

Recovery of arrears by Clerk

Where payments to the Clerk under a maintenance order, a variation order or an interim order are in arrears, and such Clerk receives a request in writing in the Form 54.21 Schedule C from the maintenance creditor to take such steps as he or she considers reasonable to recover such arrears, such Clerk may make application under section 10 of the Act for an attachment of earnings order or under section 8 of the Enforcement of Court Orders Act, 1940 (in accordance with the provisions of Order 56 or 57, as the case may be of these Rules)

Service of summonses

A summons required by this Order to be served may be served upon the person to whom it is directed in accordance with the provisions of Order 10 of these Rules at least fourteen days (21 days if by registered post) before the date of the sitting of the Court to which the summons is returnable.

The original of every such summons served, together with a statutory declaration as to service thereof, shall be lodged with the Clerk at least two days before the said date of hearing.

Orders to secure payments

Where the Court has made an order providing for periodical payments by way of support or maintenance by a maintenance debtor to a maintenance creditor, an application may be made to the Court on a date subsequent to the date to secure the said payments to the maintenance creditor. Such application shall be preceded by the issue and service of a notice in the Form 54.22 Schedule C. The order of the Court granting such application shall be in the Form 54.23 Schedule C.