Replies to Particulars in Civil Litigation-What You Ought to Know

 

replies to particulars

Litigation is the process you engage in when you are involved in civil legal proceedings, for example a personal injury claim or a commercial dispute. An important part of litigation is the serving of a Notice for Particulars, and the consequent Replies to Notice for Particulars.

Notice for Particulars

The Notice for Particulars is a series of questions that the Defendant will send to the Plaintiff in order to see what case he will have to meet and to ascertain the details of the alleged wrongdoing, the circumstances giving rise to the claim, details of the injury/damage, and so forth. It forces the Plaintiff to set out the exact details of his claim.

The formal legal position of the parties is set out in Pleadings and the Pleadings combined with the Particulars allows a party to the proceedings to see in broad outline the case it will have to meet at trial.

In recent years, however, the extensive, broad, and sometimes oppressive nature of the Particulars being sought have been considered by the Courts as some of the questions sought appeared to be irrelevant to the issues at hand.

Armstrong v Moffatt [2013] IEHC 148

The High Court considered the question of Particulars in this case which was a personal injury action. Section 11 of Civil Liability and Courts Act 2004 allows the Defendant in a personal injury action to request further information, including

(a) particulars of any personal injuries action brought by the plaintiff in which a court made an award of damages,

(b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled,

(c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and

(d) the name of any persons from whom the plaintiff received such medical treatment,

 

Two of the defendants in Armstrong v Moffatt sought particulars of information over and above what was provided for in section 11 above. The Plaintiff’s solicitor refused the request and pointed to section 11 as the extent of his client’s obligation and the High Court was asked to determine the issue.

High Court

The High Court firstly stated that the Civil Liability and Courts Act 2004 did not alter the general position arising from the Rules of the Superior Courts. Order 19 deals with pleading generally in the Superior Courts and states:

7. (1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.

(2) Before applying under this rule to the Court a party may apply for particulars by letter. The costs of each letter and of any particulars delivered pursuant thereto shall be allowable on taxation. In dealing with the costs of any application for particulars, the provisions of this paragraph shall be taken into consideration by the Court.

(3) Particulars shall not be ordered under this rule to be delivered before defence or reply, as the case may be, unless the Court shall be of opinion that they are necessary or desirable to enable the defendant or plaintiff, as the case may be, to plead or ought for any other special reason to be so delivered.

From this Judge Hogan held that particulars shall be ordered if it is “just” to do so-that is, in the interest of fair procedures, and to ensure a party will not be taken by surprised by the case he has to meet at trial.

However, he went on to say that Courts should be more prepared to refuse requests for particulars that are oppressive and indiscriminate and, possibly, an abuse of process. He referred also to the fact that the Oireachtais had set out in section 10 of Civil Liability and Courts act 2004 how a personal injuries claim should be pleaded and if this was done correctly the need for further extensive replies to particulars should be the exception, not the rule.

In this case Judge Hogan struck out particulars which fell outside of section 11. He also commented that even though the indiscriminate use of excessive particulars was curtailed by the Civil Liability and Courts Act 2004 in respect of personal injury claims there was no brake put on such requests in other types of case.

Conclusion

Notices for Particulars should be used to establish, in broad outline, the case the defendant has to meet at trial. Anything over and above this should be carefully considered by both parties because there is a risk of such requests being struck down by the High Court with consequent costs implications.

As Judge Hogan suggested,

Perhaps, accordingly, what is called for is a more discriminating approach on the part of the general legal community to the question of particulars which avoids the prolix, the unnecessary and the irrelevant and which opts instead for the well placed question which genuinely clarifies a matter which actually is contained in the pleadings. In this – as in much else in litigation – the fox is more likely to prevail than the lion.

Useful resources:

  1. S.I. No. 15/1986 – The Rules of the Superior Courts
  2. Rules of the Superior Courts on Courts Service website (easier to navigate than the SI above)
  3. Statutory Instrument No. 254 of 2016 (The Rules of the Superior Courts (Conduct of Trials) 2016)
  4. Statutory Instrument No. 255 of 2016 (The Rules of the Superior Courts (Chancery and Non-Jury Actions: Pre-Trial Procedures) 2016)

Legal Proceedings in the High Court Made Simple-a Step by Step Guide

high-court-proceedings

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:

  1. A plenary summons, used mainly for tort and contract actions
  2. A personal injuries summons
  3. A summary summons, used mainly in debt collection
  4. 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”.

Getting started

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

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.

Plenary actions

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.

Substituted service

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.

Appearance

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.

The Zen of Legal Proceedings in the Circuit Court

circuit-court-legal-proceedings

Circuit court legal proceedings normally commence by way of a Civil Bill, which must be issued out of the Circuit Court office and served on the other party(ies). The jurisdiction of the Circuit Court is for actions worth between €15,000 and €60,000.

There are many types of Civil Bill including

  • Ordinary Civil Bill
  • Equity Civil Bill
  • Landlord and Tenant Civil Bill
  • Ejectment Civil Bill
  • Family law Civil Bill.

Most actions in tort or contract will use the Ordinary Civil bill, but a personal injuries action will commence with a personal injuries summons. Precise details of how the claim arises are set out in the Civil bill, along with details of the cause of action alleged and the financial losses/damages arising.

Read this article for the Personal Injuries Summons procedure.

The Civil Bill/PI Summons is issued in the Circuit Court office and must then be served on the defendant(s). Once the Civil Bill is issued time stops running from the perspective of the Statute of Limitations. Once issued, it is valid for 12 months and can be renewed then, if necessary, once an application is brought to the County Registrar.

Service can be carried out in person, by registered post, or ordinary post on a limited company.

Service of a Civil Bill/PI summons is proved by an affidavit of service or statutory declaration of the person who served it.

Defending the action

The defendant must, if he intends defending the action, enter an appearance within 10 days of service of the summons/civil bill. He must send a copy to the Circuit Court office and to the plaintiff’s solicitor.

Failure to enter an appearance will allow the plaintiff to obtain judgment in default of appearance.

Notice for Particulars

Once an appearance is entered the defendant’s solicitor will send a notice for further and better particulars. This will be a list of questions seeking to flesh out more information about the matters pleaded in the civil bill. The replies to these particulars in a personal injures case will state whether the plaintiff has been involved in previous personal injuries proceedings, and whether an award for damages was made.

Defence

A defence to the action must be delivered within 10 days of delivery of the replies to the notice for further and better particulars, or entry of the appearance if no notice is raised seeking particulars. The defence must be served on the plaintiff’s solicitor. The defence must state the grounds on which the defendant disputes the plaintiff’s claim.

In a personal injuries action the defence must be delivered within 6 weeks of the appearance.

A defendant can also counterclaim against the plaintiff but the counterclaim must derive from the same facts as the plaintiffs action.

A defence and a counterclaim must contain certain information specified in the Civil Liability and Courts Act, 2004.

If a plaintiff fails to progress their case with reasonable speed the defendant can apply to have the case dismissed for want of prosecution. However, it is in rare cases that cases are dismissed; normally the Court will impose a strict time limit for steps to be taken by the plaintiff.

Lodgement of money into court

To satisfy a Plaintiff’s claim a defendant can lodge a sum of money into court in settlement of the proceedings. In the Circuit court this lodgement is without admission of liability, unlike in the High Court. There are Court rules which determine how and when lodgements can be made.

A notice of lodgement and the sum itself are lodged in the Circuit Court office, and the notice is served on the Plaintiff. The fact of this lodgement will not be disclosed to the Judge hearing the case until he/she has decided all issues between the parties, except for liability for costs.

If the amount lodged is acceptable to the plaintiff he must file a notice of acceptance and serve it on the defendant’s solicitor. all further proceedings are then stayed and the plaintiff’s solicitor can then go ahead and tax his client’s costs to date.

If the lodgement is not accepted and the plaintiff at trial received less that the lodgement amount the defendant will be entitled to all his costs from the date of lodgement to the date of hearing. It is vital, therefore, that a Plaintiff and his solicitor considers the lodgement very carefully.

Personal injury actions

The procedure described above is available in PI actions, too, but is unlikely to be used because section 17 of the Civil Liability and Courts Act, 2004 provides for both the plaintiff and defendant serving on each other a formal offer.

Furthermore, section 51A of the Personal Injuries Assessment Board Act 2007 effectively turns an assessment which is rejected by the claimant in to a type of lodgement as if the claim proceeds to full hearing and the assessment amount is not matched in Court and the Plaintiff will not be awarded their costs. In addition, some of the defendant’s costs may be payable, depending on the decision of the Court.

Discovery

Order 32 of the Circuit Court Rules provides for discovery, which usually occurs at the close of pleadings. Discovery is the process of one party seeking discovery of documents from the other. Read also evidence in civil legal actions-what you need to know.

Either party’s solicitor can also serve a notice to produce on the other party which obliges the production for inspection of any documents referred to in the pleadings.

Joining a third party to the proceedings

This is covered by Order 7 of the Circuit Court rules.

Going to trial

Once the defence has been delivered and any lodgement that might have been served has not been accepted by the Plaintiff the Plaintiff’s solicitor must serve a notice of trial. This is brought to the Circuit Court office where a date will be inserted in the Notice. A copy of this notice must be served on the Defendant’s solicitor.

Outside Dublin the notice of trial serves to set the case down for hearing at the next sittings of the Circuit Court. In Dublin a letter must be lodged confirming that all outstanding discovery matters have been dealt with, proofs have been advised by counsel, up to date reports are available, and there are no outstanding particulars on either side.

The letter should also state the type of case, the likely duration and dates to be avoided, if any.

If a plaintiff fails to serve a notice of trial within 10 days of delivery of the defence the defendant may do so.

Even if a witness has confirmed he will attend it is still strongly advisable to issue and serve a witness summons by personal service or registered post.

Amendment of pleadings

If a party needs to amend any pleading the consent of the Court will be required. Getting the consent of the other party in the first instance will be helpful, too.

Notices of Motion

Notices of motion can be dealt with by the County Registrar and can deal with a wide range of issues such as

  • an order for discovery
  • an order to dismiss an action for want of prosecution
  • an order for the enlargement of time for taking any step
  • an order for directions as to service of a civil bill
  • and many more administrative matters.

Judgment following the trial

Judgment will be given following the trial and a copy of the order can be obtained from the County Registrar.

Judgment in default of appearance or defence

If the defendant fails to enter an appearance or defence the plaintiff can obtain judgment “in default”. The procedures are slightly different between debt recovery cases and other actions in tort and contract. In tort and contract cases the procedure to obtain judgment is by notice of motion and grounding affidavit.

Remittal and transfer of actions

Cases can be transferred from the Circuit court to the other courts-District or High-and vice versa.