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.

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.