Recent jurisprudence on conditional appearances

16/07/2018

Arthur Cush analyses the narrowed scope for conditional appearances in the June Gazette.

Making an appearance

The 2017 decision of the High Court in Bank of Ireland v Roarty clarifies the limited circumstances in which a conditional appearance can be entered. The court also restated the test to be applied when setting aside judgment in default of appearance, and refused to apply the ‘arguable defence’ test, as is applied in Northern Ireland.

Once proceedings are served on a defendant, they are required to enter an appearance either in person or by solicitor. Different rules apply to some specific types of action, such as in proceedings brought by special summons or proceedings involving an infant or a person of unsound mind. If a defendant fails to enter an appearance within the time prescribed by the rules, then the plaintiff can seek judgment in default of appearance.

In most circumstances, the entry of an appearance signifies the defendant’s intention to defend the proceedings, but also has the effect of precluding a defendant from later challenging the court’s jurisdiction to hear the case. The exception to that general rule is where a party enters an appearance for the purposes of contesting jurisdiction under article 24 of Council Regulation (EC) 44/2001. This is commonly referred to as a ‘conditional appearance’.

Bank of Ireland v Roarty

Roarty concerned an application by the defendant to set aside a judgment of approximately €900,000, which had been marked in the central office of the High Court for failure to enter an appearance on foot of a summary summons. The defendants had, in fact, written to the central office and enclosed their conditional appearance, which stated that the defendants “vigorously contested” the summary summons, and that “consenting jurisdiction are withheld” until 13 specified conditions were fulfilled.

Amidst exchanges between the defendants and the central office, the lender obtained a judgment that one defendant then sought to have set aside. Refusing to set aside the judgment, Ms Justice Ní Raifeartaigh clarified the circumstances where a court would set aside judgment in default of appearance and, in doing so, highlighted the extremely narrow scope of conditional appearances. Arthur Cush, a Dublin-based barrister, analyses the case and its implications for the Gazette.

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