What are the options for getting divorce or separation cases listed more quickly for hearing in the Dublin Family Circuit? Keith Walsh examines the procedures.
The Circuit Courts have been sitting and dealing with urgent matters throughout the pandemic, and many separation and divorce cases have been dealt with, while priority was given to domestic-violence cases.
However, in the Dublin Circuit, there remains a significant backlog of family-law cases for hearing, motions to be listed, and case-progression hearings to be allocated dates – whether new case progressions that date from February 2020, or case-progression hearings that started prior to that date but were adjourned during the pandemic.
On 7 May 2021, the Courts Service announced that family-law business in the Dublin Family Circuit was restarting. A three-day list to fix dates was held over 5, 6 and 7 May, which allocated dates for hearing in the Trinity and Michaelmas terms, as well as some dates outside those terms. Case-progression hearings commenced from 12 May, and motions before the county registrar started on 20 May.
All of these sittings are taking place in person. A further list to fix dates will be scheduled during the Trinity term, which will allocate dates for the Michaelmas term. It is likely that this list to fix dates will take place in early July, which means that steps should be taken now to make sure that cases are ready to be listed for hearing.
Until 14 June 2017, the procedure for having a case listed for case progression was the same in all circuits. However, new Circuit Court Rules were introduced by SI 207 of 2017, which consolidated and reorganised order 59 and changed the procedure for case progression in Dublin only.
Three main changes were made to the case-progression system in Dublin:
- A ‘leapfrog’ option was introduced, which permitted both parties, by agreement, to bypass case progression and move the case directly to the list to fix dates by application to the court office,
- The manner in which cases were listed for case-progression hearings was changed (it ceased to be automatic),
- Where a case was in case progression, but the parties had complied with all outstanding matters, then the case could be transferred to the list to fix dates, on application to the court office.
Bypassing case progression
In Dublin Circuit only, a case-progression hearing is not required after the filing of a defence where both parties (a) agree, and (b) have certified completion of pre-case-progression steps (order 59, rule 38). A notice to fix a date for trial can be filed without the necessity for case progression where a defence has been filed and both parties have certified compliance with the pre-case-progression steps using the appropriate forms (Form 37X and 37W), as contained in the new rules. The applicant can serve the notice any time after the defence and the appropriate form has been filed and served.
The respondent can file the notice if the applicant has not done so within ten days of filing and service of the defence, and provided both parties have certified completion of pre-case-progression steps (order 59, rule 39).
A notice to fix a date for trial is not a notice of trial, and so the date on the notice to fix a date for trial will be the date of the list to fix dates in Dublin. The notice to fix a date for trial must be issued and served on the other side and, where pension relief is sought, on the trustees of the pension scheme. The minimum notice for a notice to fix a date for trial is ten days.
Listing matters (Dublin Circuit)
In Dublin, once a defence is filed, a case-progression summons does not automatically issue fixing a date for a case-progression hearing within 70 days. In all circuits except Dublin, the filing of a defence triggers the automatic issuing of a summons for case progression from the court office.
Instead, the following options are open to parties in Dublin:
- Where both parties have lodged a duly signed joint certificate of completion of the pre-case-progression steps, as set out in Form 37W, then the county registrar must list a case-progression hearing and issue a case-progression summons (Form 37L) for the next available date, or
- Where one party has lodged a certificate of completion by that party of the pre-case-progression steps in Form 37W and has given the opposing party not less than 14 days’ written notice of his completion of the pre-case-progression steps, and his intention to apply for a case-progression hearing, and calling on that party to complete the pre-case-progression steps, then the county registrar must list a case-progression hearing and issue a case-progression summons (Form 37L) for the next available date following the expiry of 21 days from the date of issue of the summons. The most common method used to commence case progression in Dublin has been by using Form 37W and the 14-day notice, rather than the joint certificate of completion.
- If neither party has caused the case-progression summons to issue, within six months after the date for filing by the respondent of his defence, his affidavit of means, and (where required) his affidavit of welfare, the proceedings shall be listed before the court for an explanation of the delay in proceeding with case progression, and the court may make such orders and give such directions as it considers appropriate, which may include striking out the proceedings, including any counterclaim, or directing the issue of a summons for case progression by the county registrar.
Where (during the course of case progression) both parties – not less than seven weeks before any adjourned case-progression hearing date – jointly certify completion of the pre-case-progression steps (in Form 37W) and compliance in full with all orders made and directions given in case progression and readiness for trial by completing the new Form 37X, and attaching copies of every order made and direction given in case progression, the proceedings shall be listed before the county registrar to fix a date for hearing, notwithstanding that the case-progression hearing is adjourned to a later date.
The county registrar must, save in exceptional circumstances to be identified in any order made, fix a date for the hearing by the court of the proceedings and vacate any adjourned date for the case-progression hearing.
One other way of getting your case listed in the ‘list to fix dates’ is to request the Circuit family judge to transfer any case before it for a motion or other application, to transfer the case directly to the list to fix dates. This transfer is usually only done where both sides agree.
The measures introduced by the Courts Service will address the backlog of family law cases in the Dublin Circuit as restrictions ease, but much activity and work will be required to move cases on in the coming weeks and months.
The procedures for having cases listed for hearing without the need for case progression, where all the vouching and other preparatory work has been done, should be used where possible. In addition, as cases can be allocated dates for hearing directly from case-progression hearings, the sooner a case is put into case progression, the sooner it will ultimately get resolved.
Solicitors should check the legal diary and the Courts Service website regularly for updates.
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