Circuit Court Rules

ORDER 28

SUMMARY JUDGMENT

1. Where the plaintiff’s claim in a civil bill is —

(a) for a debt or liquidated demand in money, or

(b) for the delivery of a chattel or specific goods in an action for detinue, or

(c) for the enforcement, performance or carrying out of a trust, or

(d) for ejectment, with or without a claim for rent or mesne profits, and a defendant has entered an appearance or has delivered a defence, the plaintiff may apply to the court for summary judgment against such defendant in accordance with the provisions of this Order.

2. This Order shall apply to all actions of ejectment whether or not the relationship of landlord and tenant has ever existed between the parties, and whether or not the civil bill is brought specifically upon the title.

3. An application for summary judgment under this Order shall be made by motion on notice in accordance with Form 11 of the Schedule of Forms annexed hereto 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, which shall be in accordance with Form 12 of the Schedule of Forms annexed hereto shall be served upon the defendant with the motion.

4. Upon the hearing of such application no party shall have the right to adduce any evidence otherwise than by affidavit, and the plaintiff shall be limited to the affidavit specified in rule 3 of this Order; provided always that the Judge may require or permit any party to produce further evidence. Such further evidence may be given orally or on affidavit as the Judge may require or permit.

5. Upon the hearing of such application judgment may be ordered to be entered for the plaintiff unless the defendant —

(a) satisfies the Judge that prima facie he has a good defence to the plaintiff’s claim, or

(b) pays into court to abide the result of the action such sum as may be deemed sufficient to entitle him to defend.

6. Except in actions for the recovery of land for non-payment of rent, if it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to staying execution, the payment of costs, or otherwise as the Judge may order; and the defendant may be allowed to defend as to the residue of the plaintiff’s claim.

7. Where the Judge does not order judgment to be entered for the plaintiff he may —

(a) dismiss the application, or

(b) give the defendant leave to defend unconditionally, or subject to such terms as to giving security, or as to the time and mode of trial, or otherwise, as he may think fit, or

(c) with the consent of all the parties, treat the hearing of the application as the trial of the action, and dispose of the same in a summary manner.

8. If it appears to the Judge that any defendant ought to be allowed to defend the action, and that any other defendant ought not be allowed to defend, the former may be allowed to defend, and the Judge may order judgment to be entered for the plaintiff against the latter, and the plaintiff issue execution upon such judgment without prejudice to his right to proceed with the action against the former.

9. Upon the hearing of an application for summary judgment the Judge may make such order as to costs as he may consider just.

10. Every affidavit used for the purpose of grounding an application for summary judgment under Order 28 shall contain averments as to whether value added tax is payable by the claimant on his legal costs and, if so, whether the sum so payable is recoverable by him from the Revenue Commissioners.

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