summary summons | Terry Gorry & Co. Solicitors

This Supreme Court case has put the cat amongst the pigeons, to a certain extent, when the summary summons procedure is being used to collect debts.

In 2008, Bank of Ireland Mortgage Bank advanced a mortgage loan of €225,000 to Mr. Joseph O’ Malley. Shortly after the loan was advanced Mr. O’Malley ran into financial difficulties. The loan repayments stopped going to the bank in November 2011 and three years later in 2014 Bank of Ireland sought summary judgement for the outstanding amount, €221,795.53.

As with all judgement proceedings involving large mortgage sums the matter was before the High Court first where Mr O’ Malley argued that Bank of Ireland’s pleadings (court papers) were defective as they lacked detail as required by Order 4 Rule 4 of the Rules of Superior Courts.

Order 4 Rule 4 states “state specifically and with all necessary particulars the relief claimed and the grounds thereof”, Mr O’Malley argued that in the pleadings before the court, Bank of Ireland had simply given a statement of account as the evidence to support their claim. It was argued by Mr O’Malley that such a process was defective as Bank of Ireland should have been required to outline each component that made up the debt claim.

Each component would comprise figures such as the principal debt advanced plus interest due on the account plus surcharges and penalties. Mr. O Malley argued that simply putting a statement of the account before the court was insufficient as each component of the debt being sought needed to be evidenced in the court proceedings.

High Court decision

Judgement was granted against Mr. O’Malley even though Bank of Ireland had simply put a statement of account before the court and did not outline specifically how the figure being sought had been arrived at.

As a result of this Mr O’ Malley appealed the decision to the Supreme Court.

The question at hand in the Supreme Court judgement was what level of detail financial institutions need to provide in summary summons issued to debtors to be successful in obtaining a judgement.

The Chief Justice, Clarke CJ allowed Mr. O’Malley’s appeal, holding that Bank of Ireland’s claim had lacked the necessary detail required under Order 4 Rule 4 of the Rules of the Superior Courts.

Clarke CJ further held that financial institutions should give a straightforward account of how the amount they are claiming for has been calculated. Based on this reasoning the appeal was allowed because there was insufficient evidence to justify the High Court order granting a summary judgement against Mr. O’ Malley.

Supreme Court decision

The matter was sent back to the High Court so that Bank of Ireland could provide more detail and further evidence of the debt claimed.

What does it mean for debt collection?

As a consequence of Clarke CJ effectively ‘sending’ the matter back to the High Court, many lenders are now seeking to amend any pleadings they have before the courts to introduce supplementary or extra evidence in order to satisfy the Rules of the Superior Courts.

A recent High Court decision in Havbell DAC v Harris saw a four-part test for parties seeking summary judgement being out by the judge.

The plaintiff’s case must be sufficiently pleaded and particularised (meaning that each part of the debt that makes up the amount being sought needs to be outlined to the court).
The plaintiff must specify evidence that establishes a prima facie or clearly identifiable case to grant the judgement.
The court must enquire whether there is a fair and reasonable probability that the defendant will be able to put forward a real (bond-fide) defence against the plaintiffs claim.
The defendant must show that they have a defence that goes beyond a mere assertion and is supported by evidence.

The decision and new test reached in O’Malley may pose problems for debt acquisition companies who may have incomplete records from the original lender and will be in a weak position to put any pressure on the original ledner to assist with any evidentiary difficulties.

Read the full decisions in Bank of Ireland Mortgage Bank v. Joseph O’ Malley IESC [2019] IESC 84 and

Havbell DAC v Harris [2020] IEHC 147

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”.

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.

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.