S.I. No. 63/2004 - Rules of the Superior Courts (Order 27 (Amendment) Rules), 2004

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48), and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in that behalf, do hereby make the following rules of Court.

Dated this 20th day of November 2003.

S.I. No. 63 of 2004

RULES OF THE SUPERIOR COURTS (ORDER 27 (AMENDMENT) RULES), 2004.

1.  Order 27 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) is hereby amended by the substitution for rule 1 thereof of the following rules:

“1.  If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, subject to the provisions of rule 1A, at the expiration of that time, apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of the first such application, the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just; and on the hearing of any subsequent application, the Court shall order the action to be dismissed as aforesaid, unless the Court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure and, where it is so satisfied, the Court shall make an order—

(a)  extending the time for delivery of a statement of claim,

(b)  adjourning the motion for such period as is necessary to enable a statement of claim to be delivered within the extended time,

and on such adjourned hearing—

(i) if a statement of claim has been delivered within the extended time, the Court shall allow the defendant the costs of and in relation to the motion at such sum as it may measure in respect thereof;

(ii) if a statement of claim has not been delivered within the extended time, the Court shall order the action to be dismissed, with costs, for want of prosecution.

1A.  (1)  No notice of motion to dismiss the action for want of prosecution in actions claiming unliquidated damages in tort or contract may be served, unless the defendant has at least 21 days prior to the service of such notice, written to the plaintiff giving him notice of his intention to serve a notice of motion to dismiss the plaintiff's claim and at the same time consenting to the late delivery of statement of claim within 21 days of the date of the letter,

(2)  If no statement of claim is delivered within the said period the defendant shall be at liberty to serve a notice of motion to dismiss the action, with costs, for want of prosecution, which shall be returnable to a date not less than 14 clear days from the date of the service of the notice; such notice of motion to be filed not later than 6 days before return date.

(3)  If, not later than 7 days after the service of such notice of motion to dismiss the action, with costs, for want of prosecution, the plaintiff delivers a statement of claim to the defendant and not later than 6 days before the return date lodges a copy thereof in the Central Office with a certified copy of the said notice of motion attached thereto, the said motion to dismiss shall not be put in the judges’ list but shall stand struck out and the plaintiff shall pay to the defendant the sum of £750 for his costs of the said motion to dismiss.”.

2.  Order 27 of the Rules of the Superior Courts is hereby amended by the substitution for rules 8 and 9 thereof of the following:

“8.  (1)  In all other actions than those in the preceding rules of this Order mentioned, if a defendant being bound to deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 9, set down the action on motion for judgment; and on the hearing of the first such application the Court may give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, or may make such other order on such terms as the Court shall think just; and on the hearing of any subsequent application, the Court shall give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, unless the court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure and, where it is so satisfied, the Court shall make an order—

(a)  extending the time for delivery of a defence;

(b)  adjourning the motion for such period as is necessary to enable a defence to be delivered within the extended time,

and on such adjourned hearing—

(i)  if a defence has been delivered within the extended time, the Court shall allow the plaintiff the costs of and in relation to the motion at such sum as it may measure in respect thereof,

(ii)  if a defence has not been delivered within the extended time the Court shall give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to.

(2)  In the event of the Court giving judgment to the plaintiff as aforesaid, any damages to which the plaintiff may be entitled shall be ascertained by the Judge with a jury, in case any party requires and is entitled to one, but otherwise without a jury, and, if without a jury, either by the Judge or by the Master or by the Examiner, as the Judge may direct, on evidence by affidavit or otherwise.

9.  (1)  No notice of motion for judgment in default of defence in actions claiming unliquidated damages in tort or contract may be served, unless the plaintiff has at least 21 days prior to the service of such notice, written to the defendant giving him notice of his intention to serve a notice of motion for judgment and at the same time consenting to the late delivery of defence within 21 days of the date of the letter.

(2)  If no defence is delivered within the said period the plaintiff shall be at liberty to serve a notice of motion for judgment in default of defence, which shall be returnable to a date not less than 14 clear days from the date of the service of the notice; such notice of motion to be filed not later than 6 days before the return date.

(3)  If, not later than 7 days after the service of such notice of motion for judgment, the defendant delivers a defence to the plaintiff and not later than 6 days before the return dated lodges a copy thereof in the Central Office with a certified copy of the said notice of motion attached thereto, the said motion for judgment shall not be put in the judges’ list but shall stand struck out and the defendant shall pay to the plaintiff the sum of Euro 750 for his costs of the said motion for judgment.”.

3.  Order 27 of the Rules of the Superior Courts is hereby amended by the substitution for rule 14 of the following:

“14.  (1)  Any order dismissing the plaintiff's action for want of prosecution, whether under this Order or any other of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the failure special circumstances (to be recited in the order) existed which explain and justify the failure.

(2)  Any judgment by default, whether under this Order or any other of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and where an action has been set down under rule 8, such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down.”.

4.  These rules may be cited as the Rules of the Superior Courts (Order 27 (Amendment) Rules), 2004.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Rules amend Order 27 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ).