S.I. No. 120/1994 - District Court (Service Abroad of Documents in Civil Or Commercial Matters) Rules, 1994.

S.I. No. 120 of 1994.

DISTRICT COURT (SERVICE ABROAD OF DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS) RULES, 1994.

The District Court Rules Committee, in exercise of the powers conferred on them by section 91 of the Courts of Justice Act, 1924 , section 72 of the Courts of Justice Act, 1936 , section 17 of the Interpretation Act, 1937 (as applied by section 48 of the Courts (Supplemental Provisions) Act, 1961 ) and section 34 of the Courts (Supplemental Provisions) Act, 1961 , do hereby, with the concurrence of the Minister for Justice, make the following Rules of Court:—

1. These rules may be cited as the District Court (Service Abroad of Documents in Civil or Commercial Matters) Rules, 1994.

2. These Rules shall come into operation on the 4th day of June, 1994 and shall apply in civil or commercial proceedings instituted in the District Court on or after the date upon which The Hague Convention enters into force for Ireland, where there is occasion to transmit a document or documents for service abroad.

3. In these Rules—

"Central Authority", when used in relation to the State, means the Master of the High Court and, when used in relation to any other State which is a party to the Hague Convention, means the authority or authorities so designated by that State under Article 2 of that Convention to receive requests for the service of documents;

"document" includes an extrajudicial document;

"The Hague Convention" means The Hague Convention of 15th November, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;

"the Rules of 1962" means the District Court Rules (No. 1) 1962 ( S.I. No. 7 of 1962 );

"the Rules of 1963" means the District Court (Summary Judgement) Rules, 1963 ( S.I. No. 213 of 1963 );

"the Rules of 1988" means the District Court [Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act, 1988] Rules, 1988 ( S.I. No. 173 of 1988 ).

4. Where any document for use in civil or commercial proceedings in the District Court is to be served upon a person in any other State which is a party to The Hague Convention, that document shall be served in accordance with the provisions (including Articles 8 to 11) of that Convention.

5. Any party to any proceedings of a civil or commercial nature or a solicitor acting for such party or, as the case may be, any district court clerk who wishes to have a document served abroad pursuant to The Hague Convention may lodge with the Central Authority, i.e. the Master of the High Court,

( a ) a request for service of the document, in the form specified in the Annex to that Convention, and a copy thereof,

( b ) two copies of the document to be served, with an additional copy thereof for each person to be served,

( c ) a translation of each document into the official language or one of the official languages of the State addressed, unless that document is already in one of those languages,

( d ) an undertaking to pay the costs of service, payment or reimbursement of which is or may be sought by the Central Authority of the State addressed under Article 12 of that Convention,

and the relevant provisions of Order 11B of the Rules of the Superior Courts (inserted by the Rules of the Superior Courts (No. 3), 1994) shall apply in every such case.

6. (1) A certificate of service completed and forwarded under Article 6 of The Hague Convention by the Central Authority of the State addressed or any authority which it may have designated for that purpose shall be prima facie evidence of the facts stated therein. A document purporting to be such a certificate shall, until the contrary is proved, be deemed to be such a certificate.

(2) Upon receipt of the said certificate the plaintiff (or solicitor for the plaintiff) shall lodge with the Clerk the original of the document instituting the proceedings (and, where appropriate, the notice thereof) and the said certificate at least four days prior to the date fixed for the hearing.

7. (1) Where a document instituting proceedings (or notice thereof) had to be transmitted abroad for the purpose of service under the provisions of The Hague Convention and the defendant has not appeared or given notice to defend, judgement shall not be given until it is established that.

( a ) the document or notice was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

( b ) the document or notice was actually delivered to the defendant or to the defendant's residence by another method provided for by that Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

(2) At the hearing of the proceedings the Clerk shall produce to the Court any communication or correspondence received from the defendant.

8. Notwithstanding the provisions of rule 7 (1) hereof, the court may give judgement even if no certificate of service or delivery as provided by The Hague Convention has been received, if all the following conditions are fulfilled—

( a ) the document or notice thereof was transmitted by one of the methods provided for in that Convention,

( b ) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document or notice,

( c ) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

9. In any case where the document instituting proceedings to which these Rules relate (or notice thereof) had to be transmitted abroad for service under the provisions of The Hague Convention and judgement has been given against a defendant who has not appeared, any application by or on behalf of such defendant to extend the time for appeal from the judgement shall be by motion on notice and shall be grounded upon the affidavit of the moving party. Upon hearing the application the court may, if satisfied that—

( a ) the application was made within a reasonable time after the defendant had knowledge of the judgement, and

( b ) the defendant, without any fault on his or her part, did not have knowledge of the document in sufficient time to defend or, as the case may be, knowledge of the judgement in sufficient time to appeal, and

( c ) the defendants had disclosed a prima facie defence to the action on the merits,

extend the time for appeal from the judgement on such terms and conditions as to the Court seem just.

AMENDMENT OF THE RULES OF 1962.

10. Rule 4 of the Rules of 1962 (which relates to service out of the jurisdiction) is hereby amended

— by the re-numbering of paragraph (4) thereof to read "(4)(a)" and

— by the insertion immediately thereafter of the following paragraph:

"(b) In a case where the person to be served is in another State which is a party to the Hague Convention of 15th November, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, service shall be effected in accordance with the provisions of that Convention (which may include service by post under paragraph (a) hereof provided the State of destination has not made an objection to such service under Article 10(a) of The Hague Convention)."

AMENDMENT OF THE RULES OF 1963.

11. The Rules of 1963 are hereby amended as follows:—

( a ) in rule 3, by the insertion of the following additional definitions—

"The Hague Convention" means the Hague Convention of 15th November, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;

"jurisdiction" shall, unless the context otherwise requires, mean the jurisdiction of the State;

"the Rules of 1994" means the District Court (Service Abroad of Documents in Civil or Commercial Matters) Rules, 1994 ( S.I. No. 120 of 1994 );

( b ) in rule 4(3), by the insertion on the third line after the word "Process" of "within the jurisdiction";

( c ) in rule 7(1), by the deletion from the first line of the clause "In proceedings other than proceedings to which the Conventions apply," and the insertion on that line after "Defendant" of "within the jurisdiction";

( d ) in rule 13(1) — inserted by the Rules of 1988 — by the deletion of all words after "defendant" and the substitution therefor of "in accordance with the provisions (including Articles 8 to 11) of The Hague Convention and the Rules of 1994.";

( e ) by the re-numbering of rule 14 (inserted by the Rules of 1988) to read "14.(1)" and the insertion immediately after the provisions of that rule of the following—

"(2) Where, however, the document instituting the proceedings (or notice thereof) had to be transmitted abroad for service in accordance with The Hague Convention, the provisions of paragraph (1)(c) and (1)(d) of this rule shall not apply. The other provisions of this rule shall be subject to rule 15 hereof.

(2) Where the document instituting the proceedings (or notice thereof) was transmitted abroad for service under the provisions of The Hague Convention and the defendant has not appeared or given notice to defend, judgement shall not be given until the provisions of Article 15 of that Convention (as set out in rule 7(1) of the Rules of 1994) have been complied with.

(3) Notwithstanding the provisions of paragraph (2) of this rule, the Court may give judgement even if no certificate of service or delivery as provided by that Convention has been received if all the conditions listed in the said Article 15 (and set out in rule 8 of the Rules of 1994) are fulfilled.

(4) Where judgement has been given in proceedings to which this rule relates against a defendant who has not appeared and that defendant wishes to apply for an extension of time for appeal from the judgement, the provisions of rule 9 of the Rules of 1994 shall apply in every such case. "

AMENDMENT OF THE RULES OF 1988.

15. (1) When any document for use in proceedings to which these Rules relate is to be served upon a person outside the jurisdiction and the service is to be effected in a State which is a party to The Hague Convention, the provisions (including Articles 8 to 11) of that convention and the Rules of 1994 shall apply in every such case.

12. The Rules of 1988 are hereby amended as follows:—

( a ) by the insertion after rule 6 of the following rule—

"6A. (1) The provisions of The Hague Convention of 15th November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter referred to as The Hague Convention) and the District Court (Service Abroad of Documents in Civil or Commercial Matters) Rules, 1994 (hereinafter referred to as the Rules of 1994) shall apply to proceedings brought in the District Court by virtue of the Conventions.

(2) Where any document for use in such proceedings is required by these Rules to be served and such document is to be served upon a person in another State which is a party to The Hague Convention, service shall be effected in accordance with the provisions (including Articles 8 to 11) of that Convention and the Rules of 1994."

( b ) in rule 7, by the deletion of paragraphs (4) to (8), inclusive, and the substitution therefor of the following paragraphs:—

"(4) A notice and certificate returned under paragraph (3) of this rule shall be served as indicated in rule 6A above (which may include service by post provided the State of destination has not made an objection to such service under Article 10(a) of The Hague Convention) or, where appropriate, in accordance with the provisions of rule 4 (4) (a) of the Rules of 1962, upon the defendant and, where the documents are to be served in the European territory of another Contracting State, they shall be served at least five weeks prior to the date of the sitting of the Court before which the proceedings have been listed for hearing.

Where the documents are to be served in any non-European territory of another Contracting State they shall be served at least six weeks prior to that date.

(5) Upon receipt of the certificate of service prescribed in Article 6 of The Hague Convention the plaintiff (or Solicitor for the plaintiff) shall lodge with the district court clerk the originals of

— the civil process or other document instituting the proceedings,

— (where appropriate) the notice of institution of proceedings (Form 1) which was served,

— the certificate (Form 1A) which was served, and

— the certificate of service,

at least four days prior to the said date of sitting of the Court.

(6) Where service has been effected by registered post or insured post the following provisions shall apply—

( a ) the plaintiff or plaintiff's solicitor shall, not earlier than ten days after the date of posting, lodge with the district court clerk the relevant documents listed in paragraph (5) hereof, together with a statutory declaration as to service of the documents posted, the certificate of posting and the advice of delivery form (when returned);

( b ) the documents issued for service shall be deemed to have been issued at the time at which the envelope containing the copies for service was posted;

( c ) the said documents shall, subject to the provisions of Article 15 of The Hague Convention, be deemed to have been served at the time at which the said envelope would be delivered in the ordinary course of post:

( d ) the statutory declaration as to service, the certificate of posting and the advice of delivery form shall, subject to the provisions of the said Article 15, together be sufficient evidence of such service.

(7) If the defendant intends to appear to be represented at the hearing for the purpose of defending the proceedings and/or, by virtue of Article 18 of the 1968 Convention, for the purpose of contesting the jurisdiction of the Court, such defendant (or solictor for such defendant) shall complete, detach and return to the district court clerk the first of the two Notices of Intention to Appear *(and Defend) which were received, so soon as to reach the clerk's office not later than four days prior to the date fixed for the hearing. The defendant (or solictor) shall also complete, detach and return to the plaintiff (or solictor for the plaintiff) the other such notice received.

(8) (i) At the hearing of the proceedings the district court clerk shall produce to the Court any communication or correspondence received from the defendant.

(ii) Where the defendant has not appeared or given notice to defend, judgement shall not be given until the requirements of Article 15 of The Hague Convention (as set out in rule 7(1) of the Rules of 1994) have been complied with.

(iii) Notwithstanding the provisions of subparagraph (ii) above, the Court may give judgement even if no certificate of service or delivery as provided for by The Hague Convention has been received, if all the conditions listed in the said Article 15 (as set out in rule 8 of the Rules of 1994) are fulfilled.

(9) Where the Court gives judgement against a defendant in proceedings to which this rule relates, the plaintiff (or solicitor for the plaintiff) shall forthwith notify the defendant of having obtained such judgement.

(10) Where judgement has been given in such proceedings against a defendant who has not appeared and that defendant wishes to apply for an extension of time for appeal from the judgement, the provisions of rule 9 of the Rules of 1994 shall apply in every such case."

( c ) in rule 11,

— by the deletion of paragraph (1) and the substitution therefor of the following paragraph—

"11. (1) Where, for the purposes of Article 47 of the 1968 Convention, it is necessary to serve upon a defendant a judgement given at a sitting of the District Court, such service shall be effected by or on behalf of the plaintiff and in accordance with the provisions (including Articles 8 to 11) of The Hague Convention and the Rules of 1994 made thereunder. When service has been effected and duly certified, the certificate of service or, where appropriate, the certificate of posting, statutory declaration as to service and the advice of delivery form, shall be lodged with the district court clerk for retention with the original judgement.";

— by the deletion in paragraph (2) of all words after "certificate in the Form 3" and the substitution therefor of the following—

"(with any necessary modifications) and certified copy or copies of the relevant document or documents lodged under paragraph (1) of this rule."

( d ) in rule 20,

— by the deletion in the last paragraph thereof "the provisions of Rules 7 and 8 hereof" and the substitution therefor of "the provisions of rules 6A, 7 and 8 hereof", and

— by the deletion at the end of that paragraph of all words after "a copy of such order shall be" and the substitution therefor of "served upon a party within the jurisdiction by registered post and upon a party domiciled in another Contracting State in accordance with the provisions (including Articles 8 to 11) of The Hague Convention and the Rules of 1994 made thereunder.";

( e ) in the schedule to those Rules, by the deletion of Form 1 (Notice of Institution of Proceedings) and the substitution therefore of the form set out in the schedule annexed to these Rules.

SCHEDULE.

GIVEN this 30th day of November, 1993

I concur in the making of the foregoing Rules of Court.

Dated this 5th day of May, 1994.

MÁIRE GEOGHEGAN-QUINN,

Minister for Justice.

EXPLANATORY NOTE.

These Rules, which come into operation on 4 June, 1994 regulate the practice and procedure of the District Court as respects the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.