Are you thinking about commencing High Court legal proceedings?
Or perhaps you have been threatened with a High Court legal action against you?
Do you want an idea of what’s involved, the various steps?
Let’s take a look.
The procedural rules for legal proceedings in the High Court are contained in the Rules of the Superior Courts.
Most High Court proceedings are commenced by issuing a summons:
- A plenary summons, used mainly for tort and contract actions
- A personal injuries summons
- A summary summons, used mainly in debt collection
- A special summons, used in a range of actions including mortgage actions.
Other proceedings can be commenced without a summons, for example presenting a petition or by issuing a notice of motion. Statutory authorities can also make “statutory applications”.
Before issuing or serving a summons it is usual to serve a warning letter on the Defendant. This letter would set out the Plaintiff’s claim, requests the Defendant to accept liability, and requests to be compensated within a set period of time, for example 7 or 14 days.
Pleadings are documents such as summons, statement of claim, defence, counterclaim, replies to particulars etc. A pleading contains, in summary form, the material facts on which the party pleading relies on for his claim or defence.
Some pleadings need only to be delivered to the other side; some need to be filed in Central Office of the High Court, too. The Rules of the Superior Courts will clarify this.
The steps in a plenary action, in a negligence or breach of contract case for example, are:
- Issue of summons
- Service of summons
- Entry of appearance by Defendant
- Delivery of statement of claim by Plaintiff
- Delivery of notice for particulars by Defendant
- Deliver of Plaintiff’s replies
- Delivery of Defendant’s defence
- Setting down the action for hearing
- Having the case listed for hearing.
The forms for various types of High Court summons can be found in the Appendix to the Rules of the Superior Courts.
Where a Plaintiff is a minor he/she must sue through a next friend.
If the Defendant in a case is outside the jurisdiction it will be necessary to ascertain whether the claim comes within the Lugano convention or the terms of Regulation (EC) 44/2001.
A summons remains in force for 12 months so if it is not served within 12 months of issue it will have to be renewed. Renewing a summons in the High Court can be expensive, therefore it may be more cost effective to simply issue new, fresh proceedings.
Service of the summons
On an individual service must be by way of personal service.
On a limited company it is served by posting it or leaving it at the registered office of the company. This can be ascertained on the Companies Registration Office website.
However, if a solicitor has indicated he/she has authority to accept service of proceedings, he/she can be served. Note that until the solicitor has entered an appearance to the proceedings your summons has not been properly served.
Once service has been carried out the person who has served must indorse details of service on the original summons. These details are the date and address at which it was served, and signature of the summons server.
This indorsement will be essential later on if the Plaintiff is seeking judgment in default of appearance.
If service cannot be carried out on the Defendant the Plaintiff can apply to Court for an order for substituted service. This will allow service be carried out in any manner directed by the Court.
An appearance must be entered by the Defendant in Central Office of the High Court within 8 days of service of a plenary or summary summons. The entry of an appearance will cure any defect in the service of the original proceedings.
If no appearance is entered within 8 days, the Plaintiff is entitled to apply to Court for judgment in default of appearance. However, a Defendant can enter an appearance after 8 days has expired, and can enter a late appearance any time up the granting of a judgment.
Here is the form of Appearance to be used in the High Court. This must be lodged in Central Office of the High Court and a copy sent to the Plaintiff’s solicitor.
Judgment in default of appearance
If the Defendant fails to enter an appearance within the prescribed time the Plaintiff can apply to obtain judgment in default of appearance.
If the claim is for unliquidated damages the application must be made to Court. This involves
- A Notice of Motion
- Grounding affidavit.
Once the Plaintiff goes to Court he must provide all the necessary proofs such as an affidavit of service of the Notice of Motion, the original summons, an affidavit of service of the original summons etc.
If the Defendant wishes to enter an appearance at this stage he will usually be given a few weeks by the Court to do so.
Judgment obtained in this way can be set aside later on by the Court if there are sufficient grounds to do so, but this is at the discretion of the Court. Grounds would include irregularities in the proceedings or where the Defendant has a good defence to the claim.
In claims for unliquidated damages the Court will set a later Court date to assess damages.
Delivery of the Statement of Claim
After the Defendant enters an Appearance, the Plaintiff delivers his statement of claim. This is a formal statement setting out the facts of the claim so as to allow the Defendant see the case he must meet, and to show the basis of the claim for damages.
It must set out the particulars of the wrong alleged against the Defendant.
These facts will be supported by evidence at the trial, but only evidence about facts pleaded in the statement of claim can be given at the trial.
If the statement of claim is not delivered within 21 days of the entry of the Appearance the Defendant can apply to have the case dismissed for want of prosecution. This may (in tort or contract actions) require a letter from the Defendant’s solicitor giving 21 days’ notice of his intention to issue a motion to have the case dismissed.
Delivery of Notice for Particulars
Once the solicitor for the Defendant has received the Statemen of Claim he will serve a Notice for Particulars of the Plaintiff’s claim. Generally, the Defendant’s solicitor will wait to receive replies to this Notice for Particulars before delivering his client’s defence.
Reply to Notice for Particulars
The replies to the Notice for Particulars need to be accurate and the Plaintiff is responsible for the factual accuracy of the replies. For this reason, the replies need to be checked carefully with the Plaintiff before returning them to the other side.
Delivery of Defence
The Defendant has 28 days from the date of delivery of the Statement of Claim within which to deliver his defence. However, this rarely happens-it takes longer.
The Defence needs to be comprehensive in its denials of the Plaintiff’s claim. Any allegation of fact in a pleading will be taken as admitted if not denied in the Defence. Any damages claimed, though, do not have to be denied as they are deemed to be in issue in all cases.
A Defence to a PI summons must be delivered within 8 weeks of the service on the Defendant of the Personal Injuries summons.
If the Defendant wishes to counterclaim he can do so within the time permitted for delivery of the Defence.
Judgment in Default of Defence
The Plaintiff may bring an application to Court for Judgment in Default of Defence.
The solicitor must first send a warning letter to the defendant’s solicitor warning that unless a defence is delivered within 21 days then a Notice of Motion for Judgment in default of defence will be issued. This letter must consent to the late delivery of a defence within 21 days of the letter.
If the Court is satisfied that the required proofs are in order it can grant judgment on foot of the statement of claim.
A second application by a Plaintiff for judgment in default of defence must be granted unless there are special circumstances that explain the failure to deliver a defence.
Delivery of Reply
The Plaintiff may deliver a reply to the defendant’s Defence. It is not necessary, though, and if he does not then pleadings are closed and the case can be set down for hearing.
Lodgment of Money into Court
This procedure was introduced to encourage early settlement of cases.
The Defendant can lodge a certain sum into Court in full and final settlement of the Plaintiff’s claim. If the Plaintiff does not accept this, and he fails to obtain an award greater than this at the hearing, he will be penalised as to costs. He will have to bear his own costs, and those of the Defendant, from the date of the lodgement, unless the Court orders otherwise.
Order 22, rule 1(1) Rules of the Superior Courts is the relevant rule.
Lodgment of money in personal injury actions is different and is determined by Order 22, rule 1 (7)-(10).
If the lodgment is accepted a notice of acceptance must be filed within 14 days.
If the plaintiff is a minor the approval of the court will be required for acceptance.
In addition to the lodgment procedure qualified parties such as Ministers or the State can make a tender, that is, an offer which does not require the actual lodgment of the money.
Third Party Procedure
Order 16, rule 1 RSC sets out the procedure if the defendant wishes to join a third party to the proceedings.
Proceeding to Plenary Trial
Once the pleadings are closed the action can be set down for trial after service of a notice for trial. The action must then be set down for hearing within 14 days of service of the notice for trial.
To set down a non jury action such as breach of contract, specific performance, damage to property, and damages for nuisance it will be necessary to lodge a certificate of readiness which certifies that the case is ready for hearing.
There are various lists for difference types of actions and the method to obtain a date for hearing also varies depending on the type of action, whether it will be in Dublin or a provincial venue.
Summonses will need to be issued and served to ensure witnesses are in attendance at the hearing. There are two types of summons:
- Subpoena ad testificandum
- Sub poena duces tecum-this one requires the witness to bring documents with him/her.
For service of a witness summons to be valid it must be served in person along with a viaticum (a small sum of money).
In cases involving claims for damages the parties will try to agree the special damages prior to the hearing.
To reduce the number of witnesses they will also seek to agree expert witness reports to avoid the need to have them attend to give evidence orally, which will drive up costs.
In personal injuries cases the disclosure and admission of experts’ reports is required under the rules.
Order 39, rules 45-51, Rules of the Superior Courts deals with disclosure in personal injuries actions.
Read also personal injuries in Ireland.
Summary Summons actions
The summary summons procedure is used in all debt or liquidated demand related cases and where a landlord is seeking to recover possession of land. It is a proceeding that is carried out without pleadings and to be heard on affidavit with or without oral evidence.
The Indorsement of Claim must set out details of how the amount due is calculated. If interest is being sought, details of this must be set out too.
If no appearance is entered judgment in default of appearance can be obtained.
If an appearance is entered the plaintiff must issue a notice of motion to have the case brought before the Master of the High Court seeing liberty to enter final judgment for the amount sought.
The Master must then decide, if the Defendant defends the claim, whether to grant the judgment or order the matter be transferred to the High Court for a full plenary hearing on the basis that the Defendant does have a valid defence to the case.
Special Summons actions
These actions are heard on affidavit with or without oral evidence. They are used in relation to
- The administration of a deceased’s estate
- Relief under Settled Land Acts
- Applications for taxation and delivery of bills of costs
- Other matters related to probate.
These types of actions come before the Master of the High Court in the first instance, who transfer the matter into the Judge’s list once he is happy the papers are in order.
The Judge can then decide the case or transfer it into a list to fix dates and one is needed to determine the matter.