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High Court practice and procedure

08 Dec 2021 / Courts Print

Courting change

SI 490/2021, which came into effect on 13 November, introduces important practice and procedural changes for certain High Court default applications. Conor MacGuill marks your cards.

COVID-19 accelerated the progress of many anticipated changes in the routine of initiating and processing actions and applications in each jurisdiction of the courts. Many of those changes have been progressive and have led to greater efficiency in the preparation of actions to trial.

The fruit of such progress remains to be seen, as delays caused by restrictions – eased in recent times but still in place – continue to reverberate through the system. 

Although it is apparent that we will be living with the effects for some time to come, with the swifter progress of litigation, it is to be hoped that the more enlightened of these initiatives will remain, as the ‘new normal’ becomes just ‘the normal’.

Central Office

No form of apprenticeship or traineeship is complete without a visit to the High Court’s Central Office. While conveyancing practitioners of a certain vintage can draw comparisons with the ‘Merrion Square experience’, the presentation and (if permitted) on-the-spot amendment of documents for filing does at least teach an aspiring lawyer not to make the same mistake twice.

A degree of consistency is emerging in the scrutiny of such pleadings, but some mistakes appear to be obvious, and some documents are, quite correctly, returned unfiled. The postal system has been in operation for some time, and can save resources, in that the previous queuing system was a time-consuming pursuit.

It is in the practitioner’s and obviously the client’s interests that pleadings are properly completed in the first instance.

The Courts Service has introduced initiatives as a work in progress, which may be added to, or amended, as they are reviewed. Obviously, the input of the profession is necessary if this is to be an effective long-lasting exercise.

Cheques are no longer being accepted with papers since 22 October, and an online appointment system for the Central Office, Dolphin House, and Limerick Civil and Family Court office is available through Courts Service Online (www.csol.ie).

The drop-box facility remains, but documents lodged by DX or post are prioritised. The highcourtscentraloffice@courts.ie email ad-dress is monitored during the day, and responses are usually issued within 24 hours.

Obviously, other offices of the Courts Services have email accounts that will apply to each particular area – both geographic and representational.

Members should pay close attention to documents being submitted and check for completeness and accuracy before attending an appointment. This will be a significant help in enabling the court office to facilitate a 15-minute turnaround time for users, to everyone’s benefit. Initial reports are that the appointment facility is readily available to those who are in need of urgent service.

New statutory instrument

SI 490/2021 introduced important temporal and procedural changes for certain High Court default applications. They came into effect on 13 Novej54mber 2021. The new rules amend the Rules of the Superior Courts by substitutions of orders 13, 20, 21 and 27 and the amendment of order 2, rule 6 and order 63, rule 1.

The aim of the rules is to improve the procedures and applications to the High Court for orders in default of defence, statements of claim and appearance, and to standardise time limits for the delivery of certain documents.

The main changes are:

  • Judgment can be entered in a motion of judgment in default of defence and default of a statement of claim, except where justice requires an extension of time and, where such an extension is granted, the court shall make an ‘unless order’ permitting one court hearing only,
  • The time period for delivery of a statement of claim and delivery of defence and counterclaim (if any) in all cases is eight weeks,
  • In actions for a debt or liquidated demand in money, a mere denial of the debt shall not be admissible,
  • The requirement for a 28-day warning letter being sent prior to the bringing of the application for judgment in default, including judgment in default of appearance: the plaintiff is required to serve the motion on the defendant in all applications for judgment in default of appearance.

Interestingly, these rules will operate retrospectively to existing proceedings.

The advent of the ‘unless order’, which has been flagged for some time, is a welcome development. Although the periods of time one might normally seek for the delivery of documents will be extended, judgment will be entered once certified, and it will no longer be required to bring additional motions and applications.

It is also to be hoped that these changes will be adopted in the lower courts, in time.

Harried devils

The online motion lists, while limiting exposure of much-needed ‘on-your-feet’ experience for trainees, is an efficiency. Attending harried devils on Monday mornings as they hoof it from court to court, awaiting their turn to say: “On consent could you …” is probably not the ne plus ultra of legal training and, in certain respects, probably better replaced by the altogether less human form of email notification.

This is an area that, with the input of the profession, could be enhanced further. Many registrars have been most helpful in forwarding orders upon request to do so, but the creeping reluctance on the part of some judges to have cases adjourned or otherwise mentioned in this fashion probably needs to form part of the next conversation.

Obviously, on circuit, be it Dublin or otherwise, different courts have different requirements, and practitioners are encouraged to be familiar with them.

The advent of court users’ groups is a particularly useful way of exchanging information towards the collective good, and bar associations have been to the fore in efforts to progress cases in those jurisdictions of the courts.

Any issues can, of course, be brought to the attention of the Litigation Committee, which is liaising with the Courts Service in relation to the grander scheme of things, but there is no substitute for conveying relevant ideas or concerns at a local level.

Hopefully, as 2022 advances, and the pandemic recedes, we will see these endeavours bear fruit – appropriately enough by springtime. 

Dealing with the Central Office

Originating documents (summons, etc)

  • Title – if personal injuries, does it match the Personal Injuries Assessment Board authorisation?
  • Do not include abbreviations. (For example, ‘T/A’ should be written ‘trading as’),
  • Address – if a limited company, insert ‘having its registered office at...’.

Issuing clause

  • Particulars of service – in family law, a legal-aid endorsement may be required also.

Motions and notices

  • Is it dated and signed?
  • Check addresses of the court office, and recipients,
  • Is there room to insert a place, date and time?

Affidavits

  • Ensure address, name, title, and age are inserted.

Jurat

  • Is it dated? Although rules state time and place, it is preferable to include street, town, and county.

Identifier clause

  • Although not strictly necessary, it is preferable to insert a clause, to the effect of: “I hereby certify to me knowledge of the deponent”,
  • Commissioners should print name and, preferably, stamp the document, for example, ‘Joe Bloggs, practising solicitor’.

Read and print a PDF of this article here.

Conor MacGuill
Conor MacGuill is the principal of Conor MacGuill Solicitors, Dundalk, a former president of the County Louth Solicitors’ Bar Association, and a member of the Law Society’s Litigation Committee