S.I. No. 216/1995:

CIRCUIT COURT RULES (NO. 2), 1995.

CIRCUIT COURT RULES (NO. 2), 1995.

We, the Circuit Court Rules Committee, constituted pursuant to the provisions of Section 69 of the Courts of Justice Act, 1936 , and Section 12 of the Courts of Justice Act, 1947 , by virtue of the powers conferred on us by Section 66 of the Courts of Justice Act, 1924 , and Section 70 of the Courts of Justice Act, 1936 , (as applied by Section 48 of the Courts (Supplemental Provisions) Act, 1961 , and Section 27 of the Courts (Supplemental Provisions) Act, 1961 ), and of all other powers enabling us in this behalf do hereby with the concurrence of the Minister for Justice, make the annexed Rules of Court.

Dated this 3rd day of July, 1995.

GERARD BUCHANAN

(Acting Chairman of the Circuit Court Rules Committee)

MICHAEL A. MORIARTY

KIERAN O'CONNOR

ANNE DUNNE

FERGAL FOLEY

GERARD DOHERTY

JOE DEANE

MICHAEL QUINLAN

(Secretary)

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

Dated this 2nd day of August, 1995.

NORA OWEN,

Minister for Justice.

S.I. No. 216 of 1995.

CIRCUIT COURT RULES (NO. 2), 1995.

1. These Rules may be cited as the Circuit Court Rules (No. 2), 1995 and shall come into operation on the 1st day of October, 1995.

2. The Order referred to in these Rules shall be added to and construed together with those orders contained in the Circuit Court Rules, 1950, as amended.

3. All applications made or proceedings taken before these Rules shall have come into operation but which are in accordance with the existing Rules and practice of the Court shall have the same validity as applications made or proceedings taken in accordance with these Rules.

(1) The heading attached to Order 10 shall be deleted and the following heading shall be substituted therefor:

"Issue of Civil Bill, Service and Entry."

(2) Rule 2 of Order 10 shall be deleted and the following Rule 2 shall be substituted therefor:

2. Save as otherwise provided in these Rules, every Civil Bill or other originating document shall be issued out of the Office of the Court in a County having jurisdiction pursuant to these Rules (hereinafter "the Office") and such Civil Bill or other originating document shall be dated with the date of issue, sealed and marked with the record number by the proper officer and shall thereupon be deemed to be issued. No Civil Bill or other originating document shall be served until the same shall have been so dated, sealed, marked and issued. In presenting such Civil Bill or other originating document to the office for issuing, such presentation may be by post or in person but no Civil Bill or other originating document shall be deemed to have been issued in accordance with these Rules, until dated, sealed, marked and issued by the proper officer as aforesaid. In circumstances in which the Civil Bill or other originating document has been presented by post, the proper officer shall return the issued Civil Bill or other originating document to the Plaintiff or the Plaintiff's solicitor, as appropriate, by ordinary pre-paid post.

(3) The following Rules shall be inserted immediately after Rule 2 of Order 10:

2A. No Civil Bill or other originating document for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the Court or of the County Registrar (pursuant to Order 16 rule 8 hereof), save in accordance with the provisions of Orders 11 and 11A of these Rules.

2B. The Plaintiff or the party or his solicitor shall, on presenting an originating summons for sealing, whether such presentation be by post or in person, leave with the proper officer a copy, written or printed, or partly written and partly printed, of such Civil Bill or other originating document and all the indorsements thereon, and such copy shall be signed by the solicitor leaving the same, or by the Plaintiff himself if he sues in person.

2C. The officer receiving the copy Civil Bill or other originating document pursuant to Rule 2A shall cause the same to be marked with the record number and to be filed and shall also cause an entry of the particulars thereof to be made in the appropriate Cause Book.

2D. Requests for entry of all Civil Bills or other originating documents, duly stamped where necessary, shall be made at the time of issuing of such Civil Bills or other originating documents and, subject to compliance with the provisions of these Rules, entry shall take place at this time in the appropriate Cause Book.

(4) Rule 3 of Order 10 shall be deleted and the following Rule 3 shall be substituted therefor:

3. Save as provided by Rules 8, 9 and 17 of this Order, a copy of the Civil Bill or other orginating document shall be served by one of the officers duly appointed as Summons Servers by the County Registrar. A Summons Server or other authorised person shall not accept service of any document purporting to be a copy of the Civil Bill or other originating document unless the original of such Civil Bill duly stamped, indorsed and issued as prescribed by Rules 1 and 2 be at the same time handed to him to be shown at the time of service to the Defendant or other person to be served.

The fee payable to such Summons Server or other authorised person shall be the sum of IR £25 in respect of each separate service effected, but, when the Civil Bill is served upon two or more Defendants residing in the same household, only one service fee shall be payable.

Wherever and for so long as no Summons Server in each case stands assigned to any area by the County Registrar of the County in which such area is situate, then service may be effected in the manner prescribed by Section 7 of the Courts Act, 1964 .

(5) Rule 4 of Order 10 shall be amended by the insertion of the following words "and issued" after the word "stamped" therein.

(6) Rules 5 and 6 of Order 10 shall be deleted and the following Rules 5 and 6 shall be substituted therefor:

5. Every Summons Server, or other person duly authorised to effect service, shall compare the copies of the Civil Bills or other documents delivered to him for service with their respective originals and, prior to the service of such copies, shall indorse his name upon the same; and after he has effected service, such person serving a Civil Bill or other originating document shall, within three days at most after service, indorse his name upon each original, stating also the day of the week and date upon which, and in the manner in which, and the place where such service was made, and the person, whether husband or wife or relative or employee, upon whom the same was served.

6. Service in accordance with these Rules shall be authenticated by affidavit or statutory declaration by the person serving same and such affidavit or statutory declaration of service of such summons shall mention the date on which the indorsements referred to in Rule 5 hereof were made. Such affidavit or statutory declaration may be indorsed on the original document.

(7) Rules 15 and 16 and 18 of Order 10 are hereby revoked.

(8) The following Rule shall be inserted immediately after Order 10:

Order 10A

1. No Civil Bill or other originating document shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any Defendant therein named shall not have been served therewith, the Plaintiff may apply before the expiration of twelve months to the County Registrar for the County in which the Civil Bill or other originating document was issued for leave to renew the Civil Bill or other originating document. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the County Registrar, as the case may be, if satisfied that reasonable efforts have been made to serve the Defendent, or for other good reason, may order that the Civil Bill or other originating documents be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons. The summons shall in such case be renewed by being stamped with the date of the day, month and year of such renewal; such stamp to be provided and kept for that purpose in the appropriate Circuit Court Office and to be impressed upon the Civil Bill or other originating document by the proper officer, upon delivery to him by the Plaintiff or his solicitor of a memorandum in the Form No. 1 hereunto annexed; and a Civil Bill or other originating document so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the Civil Bill or other originating document.

2. In any case where a Civil Bill or other originating document has been renewed on an ex parte application, any Defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.

3. The production of a Civil Bill or other originating document purporting to be marked with a stamp showing the same to have been renewed in the manner aforesaid, shall be sufficient evidence of its having been so renewed and of the commencement of the action on the first day of such renewed Civil Bill or other originating document for all purposes.

4. Where a Civil Bill or other originating document, of which the production is necessary, has been destroyed or lost, the Court upon being satisfied of the destruction or loss, and of the correctness of a copy thereof, may order that such copy shall be sealed and served in lieu of the original Civil Bill or other originating document.

(1) Rules 5 and 6 of Order 11A shall be deleted and the following Rules 5 and 6 shall be substituted therefor:

5. (i) Where a person served desires to contest the jurisdiction of the Court to hear and determine the claim under the provisions of the 1968 Convention, he may enter an appearance solely for the purpose of contesting jurisdiction.

(ii) Any person who desires to contest jurisdiction shall deliver a Defence stating that he contests the jurisdiction of the Court under the provisions of the 1968 Convention and shall set out therein the grounds upon which jurisdiction is contested. In such cases the appearance which has been entered shall be deemed for the purposes of Article 18 of the Convention to have been entered solely to contest jurisdiction, notwithstanding any averment in the Defence which may go to the merits of the claim.

(iii) Where a Defence has been delivered in which jurisdiction is contested, any party to the proceedings may apply to the Court on motion on notice grounded upon affidavit for determination of the question of jurisdiction as a preliminary issue, or the matter may be set down for trial. The Judge may determine the question of jurisdiction on affidavit, or may direct the trial of an issue, with or without pleadings, as he may see fit, and may give such directions in relation thereto as he may see fit.

(iv) Any person who desires to contest jurisdiction in proceedings in which there is no provision in the Rules for the delivery of a Defence, shall at the soonest opportunity apply to the Court on fourteen days notice to the other party or parties for an order declining jurisdiction and the Judge may determine the question of jurisdiction on affidavit, or may direct the trial of a preliminary issue, with or without pleadings, or may direct that the question of jurisdiction be determined at the hearing of the substantive matter, as he may see fit, and may give such directions in relation thereto as he may see fit.

6. Where a person served with a Civil Bill or other originating document outside the State pursuant to Rule 1 hereof has entered an Appearance, the time within which a Defence should be delivered by him shall be 28 days from the date of entry of his Appearance, or where an application has been brought for an Order declining jurisdiction in accordance with Rule 5 above, the time shall be 28 days from the date of determination of the said application, unless the Court shall otherwise order.

(1) Rule 4 of Order 12 shall be deleted and the following Rule 4 shall be substituted therefor:

4. A Defendant who has entered an Appearance as aforesaid shall, within the further period of ten days thereafter, deliver to the Plaintiff or his Solicitor a notice in writing in these Rules referred to as the Defence.

(2) Rules 9 and 9A of Order 12 shall be deleted and the following Rules 9 and 9A shall be substituted therefor:

9. Any Defendant may at the time of entry of an appearance or at any time thereafter being, in the case of the Dublin Circuit, at least eight weeks before the date for hearing mentioned in the Notice of Trial and, outside Dublin, at least eight weeks before the day upon which the case is first due to be heard, lodge in Court an amount which he alleges is sufficient to satisfy the plaintiff's claim, and such lodgement may be with an admission or denial of liability. Where there is more than one claim or cause of action the Defendant shall state in respect of which of them such lodgement is made.

9A. A Defendant may once, without leave, and upon notice to the Plaintiff, lodge in Court an additional sum of money as an increase to a lodgment made under Rule 9 above. In the Dublin Circuit such notice must be given and additional lodgment made at least eight weeks before the date for hearing mentioned in the Notice of Trial. Outside Dublin, such notice must be given and additional lodgment made at least eight weeks before the day upon which the case is first due to be heard. If such notice is not given, and such additional lodgment is not made as aforesaid, the lodgment made under Rule 9 shall be deemed to be the only lodgment in Court, and this Order shall be considered accordingly.

(3) Rule 10 of Order 12 shall be deleted and the following Rule shall be substituted therefor:

10. A Defendant making a lodgment under the last preceding Rule shall initimate such fact by a document other than and in addition to his Defence and such document shall be kept by the County Registrar in a separate file and neither he nor any other person shall disclose the fact of such lodgment to the Judge until he shall have decided all issues between the parties save the liability for costs. Such document shall be in the form prescribed by these Rules (Form 2), and shall be filed in accordance with these Rules and a copy thereof served on the Plaintiff. Form 30 of the Circuit Court Rules, 1950 is hereby deleted.

(4) Rule 14 of Order 12 shall be deleted and the following Rules 14 and 14A shall be substituted therefor:

14. If the Plaintiff, not being under a legal disability, does not accept the total amount lodged within the time named, he shall be liable for all costs thereafter incurrd on foot of the claim in respect of which the lodgement was made, unless he obtained judgment for a greater amount than the total amount lodged, exclusive of costs.

14A. Save as may be otherwise ordered by the Court, if the Plaintiff does not accept the amount lodged, in accordance with the provisions of these Rules, then, at the termination of the proceedings, all sums lodged shall be repaid to the solicitor on record for the Defendant at the time of such termination or, where there is no solicitor on record for the Defendant at that time, to the Defendant personally.

(5) Rule 16 of Order 12 shall be deleted and the following Rule 16 shall be substituted therefor:

16. No Appearance shall be entered or Defence delivered after the time specified in these Rules without the leave of the Judge or of the County Registrar save as shall otherwise be agreed between the parties, and no Defence shall be delivered unless the Defendant has previously entered an Appearance as required by these Rules.

(1) Rule 1 of Order 16 shall be amended by the addition of the following:

(ix) for the renewal of a Civil Bill or other originating document as provided for in Order 10A hereof.

(1) Rule 1 of Order 23 shall be deleted and the following Rule 1 substituted therefor:

1. Where the Plaintiff's claim in a Civil Bill is for a debt, or liquidated demand, or for the delivery of specific goods or chattels, and a Defendant has not entered an Appearance within time limited in the Civil Bill, or, having, entered an Appearance, has not delivered a Defence within the time limited by these Rules, the Plaintiff may, in default of such Appearance or Defence, as the case may be, apply in the Office for judgment to be entered against such Defendant. In any such cases in which the Defendant shall, after action brought, have satisfied the Plaintiff's claim (save as to costs), the Plaintiff may apply in the Office for judgment for the costs applicable to the Plaintiffs claim. The application for such judgment shall be supported by the documents mentioned in Rules 2 and 3 of this Order with such alterations and additions thereto as may be appropriate.

(2) Rule 2 (b) of Order 23 shall be deleted and the following Rule 2 (b) substituted therefor:

2. ( b ) if the application be for judgment in default of Appearance, a certificate by the County Registrar that no Appearance has been entered, or if the application be for judgment in default of Defence, an affidavit by the Plaintiff or solicitor for the Plaintiff verifying that an Appearance has been entered but that a Defence has not been delivered.

(3) Rule 4 of Order 23 shall be deleted and the following Rule 4 substituted therefor:

4. The affidavit verifying the Plaintiff's claim specified in Rule 2 (c) shall be sworn, and the certificate specified in Rule 3 shall be given, within the period of fourteen days next preceding the date of the application for judgment, otherwise same shall not be sufficient.

(4) Rule 6 of Order 23 shall be deleted and the following Rule 6 substituted therefor:

6. Where there are two or more Defendants, and any one has made default in entering an Appearance, or delivering a defence, as the case may be, the Plaintiff may, in accordance with the provisions of this Order, have judgment against such Defendant entered in the Office, and may issue execution against such Defendant, without prejudice to his right to proceed with the action against any other Defendant who may have entered an Appearance or delivered a Defence, as the case may be.

(1) Rule 1 (i) of Order 24 shall be deleted and the following Rule 1 (i) substituted therefor:

1. (i) In any case in which the Plaintiff is not entitled under the provisions of the preceding Order to apply for judgment, and a Defendant has made default in entering an Appearance or delivering a Defence, as the case may be, the Plaintiff may, subject to the provisions of the following Sub-Rules of this Rule, at any time after such default, on notice to be served upon such Defendant, not less than four clear days before the hearing, apply to the Court for judgment.

(1) The words "or has delivered a" shall be inserted immediately prior to the word "Defence" in Order 25 Rule 1.

(2) Rule 3 of Order 25 shall be deleted and the following Rule 3 substituted therefor:

3. An application for summary judgment under this Order shall be made on notice to be served upon the Defendant not less than four clear days before the hearing thereof. Such application shall be supported by an affidavit made by the Plaintiff, or by some other person on his behalf who can swear positively to the facts verifying the Plaintiff's claim, and stating that in the deponent's belief the Defendant has not a bona fide defence to the Plaintiff's claim, and that the Appearance has been entered and the defence (if any) has been delivered solely for the purpose of delay. Such affidavit shall be served upon the Defendant with the notice of application.

(1) Rule 2 of Order 27 shall be deleted and the following Rule 2 substituted therefor:

2. Every such notice shall set forth clearly and briefly the reasons why the party applying did not enter an appearance or did not deliver a defence, as the case may be, the nature of the fraud, misrepresentation, surprise or mistake relied upon, and the grounds of defence to the action in which the said judgment was given.

FORM 1

Memorandum of Renewal of Civil Bill or Other Originating Document

(Heading as in Civil Bill or Other Originating Document.)

Seal renewed Civil Bill or Other Originating Document in this action indorsed as follows:

(Copy original Civil Bill or Other Originating Document and the indorsements.)

FORM 2

AN CHUIRT CHUARDA

(The Circuit Court)

FORM 2--NOTICE OF LODGMENT IN COURT (ORDER 12 RULE 10)

BETWEEN

TAKE NOTICE that the Defendant has this day paid into Court in accordance with Order 12 Rule 10 of the Rules of the Circuit Court the sum of IR £  , and says that such sum is sufficient to satisfy all just claims (or state what particular claim or cause of action).

AND FURTHER TAKE NOTICE that such payment into Court is made (state whether the Defendant admits or denies liability in respect of such claims or causes of action).

Dated the          day of      19 .

Signed: .........................................................

Defendant or Defendant's Solicitor

To: ............................................................ ...................

       Plaintiff or Plaintiff's Solicitor

and............................................................ ............................................................ ..............................................

The County Registrar for the County of ...................................................

EXPLANATORY NOTE.

These Rules which come into operation on the 1st day of October, 1995, provide (a) for the issuing of Civil Bills or other originating documents prior to service and for the renewal of such Civil Bills or other originating documents and (b) for the amendment of procedures in relation to the payment into Court of and the payment out of lodgments in satisfaction of claims and (c) for the delivery of a Defence without the necessity of lodging same in the Circuit Court Office with consequent changes in applications for judgment in default of Defence and applications for Summary Judgment.