A secondary school student has had his High Court legal
action thrown out by the Judge.
The background is the student was suspended from a secondary
school over the allegation that he had sold €20 worth of cannabis in the
school. The student admitted using the cannabis which was found in his
schoolbag on the school premises.
He denied, however, he was involved in supplying the drug.
His application to the High Court was grounded on his
assertion that the decision which would be arrived at as part of the
disciplinary procedure was contaminated and prejudged as he claimed the school
principal had contaminated the process by reason of his making findings of fact
as part of the investigation stage.
He also alleged he would not be able to challenge the
evidence against him at the proposed disciplinary hearing held by the board of
management of the school and claimed an absence of fair procedures to date.
The Judge did not agree.
The Judge in this High Court application said the application
was premature and came nowhere near meeting the threshold for court
Justice Simons pointed to the fact that the school
disciplinary process had not yet been completed and even when it was completed
there was a statutory appeal process open to the student pursuant to section
29 of the Education Act, 1998.
This section 29 appeal involves a full hearing of the case
on its merits before a committee of 3 persons appointed by the Department of
Education. This should be availed of before heading off to the High Court, said
The Judge stated that availing of these procedures would be
cheaper and faster than going to the High Court and rejected the student’s
application to judicially review the proposed disciplinary process. Justice
Simons commented that this application could cost six figures in legal costs.
Interestingly Justice Simons also commented that school boards
would be very slow to expel students if they are exposed to significant legal
costs, even if they won their case, and a decision by him to grant the
application wold have a ‘chilling effect’ on school boards of management.
In summary, the Judge said this application was premature
and the student should have availed of the cheaper and faster procedures open
to him rather than going to the High Court to try to halt the disciplinary.
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:
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.
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.
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
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.
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.
The legal system in Ireland is comprised of four jurisdictions:
The Supreme Court
The High Court
The Circuit Court
The District Court.
The Supreme Court is principally a court of appeal as it hears appeals from the High Court against judgments and orders.
The High Court can hear virtually all actions, regardless of the amount involved. However, the Circuit Court has jurisdiction up to a value of €38,092.14 so the High Court will normally involve cases exceeding this amount.
It can also hear appeals from the Circuit Court and cases stated from the District Court. This occurs when a District Court judge refers a case on a point of law to the High Court for its determination before deciding a case.
The Circuit Court can deal with actions up to a monetary value of €38,092.14 and there are 8 circuits:
The Circuit Court has jurisdiction in civil, criminal, and family law matters and can hear appeals from the District Court.
The Circuit Court can also hear equity proceedings eg an action for the dissolution of a partnership, for the administration of an estate of a deceased person, an action for the specific performance of a contract for the sale of land or the partition of an interest in land.
Generally, cases in the Circuit Court are brought in the Circuit Court area where the defendant lives or carries on business.
The District Court can deal with legal actions with a monetary value of €6,348.69.
It cannot hear actions arising from defamation, malicious prosecution or false imprisonment.
District Courts generally deal with
Breach of contract
Actions in tort
Recovery of arrears of rates
Ejectment proceedings (non-residential)
Debt collection enforcement applications.
2014 changes to monetary limits
Note: the monetary limits of the Courts were changed in 2014 as follows- District Court up to €15,000, Circut Court up to €75,000.
The High Court hears cases in excess of €75,000.
Defendant outside the Jurisdiction
Where a defendant is abroad and outside the jurisdiction, it will be essential to establish that the Irish Court has jurisdiction.
Under Common Law Rules re jurisdiction an Irish court has jurisdiction if the defendant is physically served with the proceedings in this jurisdiction or where his solicitor accepts service of proceedings here.
An Irish court will also have jurisdiction where the parties agree.
If it is necessary to serve proceedings on someone outside the jurisdiction, the permission of the court must be obtained first.
The European Union has also sought to standardise the rules of jurisdiction between member states through:
Council regulation 44/2001 (‘Brussels 1’) which deals with jurisdiction and enforcement and recognition of judgments between member states in civil and commercial matters
European enforcement orders (regulation (EC) 805/2004)
Regulation (EC) 1896/2006 which introduced a new procedure for the recovery of cross border debts
The Lugano Convention
Council Regulation (EC) 44/2001 which deals with service of documents in civil or commercial matters in EU member states
The Hague Convention (later superseded by Regulation 1348/2000.
Debt collection in Ireland is a serious problem today, both for creditor and debtor.
The pressure on the cash flow of many businesses and sole traders, especially with the banks in Ireland effectively closed to many SMEs, can lead very quickly to a major cash flow problem.
Common questions in relation to debt collection in Ireland are set out below.
If you need a solicitor, don’t hesitate to contact us through the form at the end of this page or simply use the contact numbers on our contact page.
The procedure for debt collection has changed slightly in 2014 because of the new jurisdiction limits for each court and a new procedure in the District Court involving a different procedure with a Claim rather than a Summons. Contact a solicitor to discuss.
Questions which crop up most often include-
How do I pursue a debt?
Why can I not issue debtor proceedings for rent owed for my house?
Can I issue debt proceedings in the District Court myself?
What should I do when I receive debt collection letters?
What is the best way to deal with debt collection agencies?
Should I use a debt collection agency when trying to collect a debt?
Where to bring enforcement proceedings for debt collection?
Generally where the creditor lives of carries on his business. The district court will be the venue for sums less than €6,348.
District Court proceedings (sums less than €6,348)
Where you are owed a sum of less than €6,348 and have exhausted your debt collection procedure of issuing demand letters and are clearly having no success the next step in the debt collection process is to issue and serve a Civil Summons claiming your debt on your creditor.
If you then receive no letter of intention to defend the summons then you are free to apply to the District court office, filing the correct documents, for a summary decree.
This simply means that if the person who owes you the debt does not defend your claim or contest the amount, then you can get a summary decree from the district court which certifies the debt that is owed to you.
The documents you need to file in this application are-
1. An affidavit of debt sworn by yourself or by someone on your behalf ( eg company accountant, company secretary)
2. A completed decree form
If the District court is satisfied to enter judgment then you will get your signed decree from the District court and this can be sent to the Sheriff for enforcement.
A defendant can seek to have this decree set aside or varied on grounds of fraud, misrepresentation, surprise, mistake or other sufficient grounds.
Circuit Court proceedings (sums less than €38,092.14)
Again when no defence or appearance is received to your issuing of proceedings(Civil Bill) in your debt collection efforts you are free to lodge the necessary papers in the Circuit Court office to obtain judgment.
The papers to be lodged in the Circuit Court office are more extensive and you really need the help of a solicitor to do so. But because the amount of debt that the circuit court will be dealing with will be up to €38,092.14, then it will be well worth it to get a legal professional on the case.
If the debt is defended and contested then it goes to court hearing and assuming you win an award you can obtain the court order from the County Registrar.
And just like the debt collection procedure for the district court, you can get the sheriff for the area to execute the court order.
High Court (sums greater than €38,092.14)
To carry out your debt collection for sums of this magnitude you must issue a High Court Summary Summons.
Assuming that no appearance has been entered by your creditor then you can proceed to lodge the necessary papers with the Central Office of the High Court judgments section which will allow you to obtain judgment in default of appearance.
This is a technical and demanding process which will require the assistance of a solicitor.
Enforcement of Judgments
Once judgment has been obtained it should firstly be served on the defendant. Judgments of all courts can then be registered in the Central Office of the High Court and will appear in trade gazettes such as Stubb’s Gazette.
This prospect of adverse publicity can encourage a creditor to pay you promptly.
There are various procedures then for summoning before the appropriate court the debtor for the purposes of ascertaining what property and assets the debtor owns. This is a similar procedure which occurs in relation to bankruptcy.
If and when you obtain a court order or judgment against your creditor in your debt collection process another further step is to obtain a judgment mortgage on some valuable property of the creditor.
There is no monetary jurisdiction on the District Court when it comes to the enforcement of judgments.
So, regardless of which court judgment is obtained, it can be enforced in the District Court.
However, before attempting to enforce judgment there are a number of essential steps to be taken:
serve the judgment on the defendant. Personal service is required for an individual; for a company you can leave it at the registered office of the company or serve by post to that office.
registration of the judgment in the Central Office of the High Court. This is not essential but the threat of appearing in Stubbs Gazette and other trade journals can be an encouragement to the debtor.
examination of the debtor of the debtor as to means.
It is possible to register a judgment mortgage on property of the debtor, even the family home. You can then apply to the appropriate court to force the sale of the house and get paid out of the proceeds.
However the courts are reluctant to force the sale of the family home. It is important to realise that a judgment mortgage can be registered on a family home even without the consent of the non debt owing spouse.
To obtain the judgment mortgage you need to go to the appropriate court and file various documents such as details of the name of the cause, the names and addresses of the parties, the trades or professions of the parties, the location of the lands, the amount of the debt and costs and a statement from the party who is owed the money which must be sworn.
Once the judgment mortgage is obtained then it can be registered in the Land Registry or the Registry of Deeds.
Once the judgment mortgage is registered the creditor can issue proceedings for the sale of the property and if he is successful in this application then the court makes an order for sale and this sale is supervised by the Examiner of the High Court.
For this part of your debt collection procedure you will generally need the help of a solicitor. But for anyone involved in small business it is no burden to carry to understand how the debt collection process works and your role in it.
The execution order occurs in the latter phase of debt collection. And this is after you have obtained a court order for the debt due to you.
In this scenario you apply to the relevant court for an execution order which, if granted, is sent to the Sheriff for execution. The sheriff then writes to the debtor and has a duty to execute the execution order within a reasonable time.
He has the power to seize all the debtors’ moveable goods and has a right of entry into premises but he must not use violence and must have reasonable grounds for believing that there are defaulter’s goods on the premises.
You will then be in a position to hand over that decree to the sheriff for the area and he must attempt to execute it on your behalf.
An execution order is valid for 12 months but often if the debtor has no goods to seize then the sheriff will return the execution order to the creditor marked ‘nulla bona’ which essentially means ‘no goods’.
However nowadays this procedure can be ineffective in practice as a lot of goods will be leased or supplied to the debtor with retention of title clauses in the contract or on a sale or return basis.
However the existence of bankruptcy proceedings, receivership or liquidation complicates things and the Official Assignee in bankruptcy, the receiver or liquidator all have priority.
So whilst some debt collection procedures are relatively straightforward, some will need the assistance of a solicitor.
Attachment and Committal
This is a process where a debtor fails to abide by the terms of an instalment order (an order to pay a certain amount laid down by the court) then you can apply to the District court for an order of committal ie an order for arrest and imprisonment.
To apply for this order the you will need to lodge with the court the instalment order and a declaration of its service on the creditor.
However if the creditors failure is due to hardship or inability to pay the Judge will seldom grant a committal order.
The law has changed in this area since the Monaghan Credit Union/Caroline McCann case-read more about attachment and committal here.
Attachments of Debts(Garnishee)
Another feature of the debt collection procedure is a fairly uncommon procedure called a Garnishee.
This occurs where the creditor has no assets apart from debts due to him, then you can apply to have those debts paid to him instead. This can also occur in relation to balances in the creditors bank account, wages due to him and any other sums due to him.
Appointment of Receiver
Both the High court and the Circuit court have the power to appoint a receiver over a judgment debtor’s property to enforce a judgment. When the receiver takes possession it is held for the court who directs what shall be done with it. The receiver has the powers which are given to him by the court.
Another, and last resort procedure, in your debt collection may involve issuing bankruptcy proceedings.
If you are intending to issuing bankruptcy proceedings against a creditor you should bear in mind the following
You gain no priority in relation to your debt
Preferential claims will still be paid first ie employees, Revenue Commissioners etc.
Bankruptcy summons will only be granted by the High Court where all other avenues have been exhausted
The Bankruptcy Act 1988 provides 2 methods by which a debtor can make a formal arrangement with his creditors
A private arrangement under the control of the court which is very similar to an examinership process for companies.
This involves the debtor setting out the reasons why he is unable to pay his debts and requesting protection from proceedings including Bankruptcy.
When the protection order has been granted the debtor will meet with his creditors and make an offer to them.
If three fifths of the creditors in number and value accept the offer, it is deemed to be accepted
Private arrangement outside the court. This is a matter of contract between the debtor and his creditors and needs the support of all creditors.
Where you are owed money by a company and you know the company is insolvent then you can petition the High Court to wind up the company (section 213 procedure). This can be an effective debt collection procedure, although the courts do not like to see it used until all other debt collection avenues have been explored first.
To do this you serve a 21 day demand letter on the company; if the debt is not paid within this period the debtor is free to petition for the winding up. Again the petitioner’s debt ranks behind preferential creditors such as employees and the Revenue Commissioners.
Pursuing debt collection against a company
1. Obtain a judgement against the company by way of “summons for liquidated debt”, the amount of debt determines in what Court the summons is issued
2. Have the judgement executed by the sheriff or the county registrar
3. Have the judgement registered in the High Court which will result in publication in Stubb’s Gazette, potentially affecting debtor’s credit rating
4. Lodge an affidavit with the Property Registration Authority registering the judgement against the debtor’s property.
5. Obtain a Court Order that the company has wilfully defaulted on the payment of its debt.
The Courts have broad powers including the seizure of the company’s assets,the director’s personal assets and even the imprisonment of the debtor.This option can be expensive and difficult to prove, and the Courts may take the less stringent approach of for example a stay to allow the debtor pay.
Apply to the High Court, where the company is unable to pay its debts but is not in liquidation for a wide range of reliefs, including arrest, seizure of assets,imposition of personal liability and assessment for damages.
Apply to the High Court to have the company put into liquidation.
Our demand letters, which demand payment within 7 days, are customized to your requirements.
We provide three types of 7 day demand letter which we describe as
What type of letter you choose will depend on your relationship with your debtor, how long the money is outstanding and your personal preference-you may for example decide that the softer versions is more appropriate in the first instance if you have built up a relationship with the debtor over some years.
Our correspondence fee will arise when a debtor contacts us in relation to the demand letter with a query or perhaps looking for additional documentation, an invoice or other information.
When this happens we refer the issue to you in the first instance.
If you wish us to deal with the debtor by way of correspondence and organising a payment plan, receipt of the payments, issuing receipts and forwarding the monies to you there will be a correspondence fee to cover this work which is not recoverable from the debtor in the absence of legal proceedings being issued.
Legal Fees in Defended cases
In defended cases, that is where a Notice of Intention to Defend or an Appearance is entered and the debtor contests the case, our fees will include the Professional fees set out below plus our hourly charge out rate which we will notify you of prior to commencing work.
You will of course receive a section 68 letter setting out our fees and expected outlays or the basis on which we will charge or an estimate of our fees prior to commencing work.
Each case will have its own particular character, level of expertise, skill and responsibility requirements and for this reason it is impossible to be absolutely definitive as to our fees in respect of defended cases.
Legal fees for enforcement of Judgments
To apply for an instalment order in the District Court for a Judgment already obtained or to bring committal proceedings our fee is €195 plus vat.
We can also
Register a Judgment mortgage and
Liaise with the Sheriff to have your judgment enforced.
Legal Fees in Undefended Cases
Our legal fees for obtaining judgment on your behalf in undefended cases in the various Courts are as follows:
APPROXIMATE RECOVERABLE COSTS
If you have any queries do not hesitate to contact us and you will find that we are approachable, responsive, professional and competitive.
Debt collection procedures can range from the relatively straightforward to the more complex.
There are a number of procedural (and other) considerations to think about before pursuing a debtor; the most important one is probably whether your debtor is a ‘mark’ or not.
This should be the first thing to consider before pursuing a debt as there is no sense in obtaining an order or judgment against a debtor if it is unenforceable.
We would be happy to advise you in this regard and any other debt issues you may have.
Note: In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.