District Court Rules

ORDER 11

SERVICE OUT OF THE JURISDICTION

PART I — GENERAL

Definitions

1. In this Order—

‘Central Authority’, when used in relation to the State, means the Master of The High Court and, when used in relation to any other State which is a party to the Hague Convention means the authority or authorities so designated by that State under Article 2 of that Convention to receive requests for the service of documents; ‘document’ includes an extrajudicial document;

‘Receiving Agency’, for the purposes of the Service Regulation, when used in relation to the State means the Combined Court Office situate at Castlebar in the County of Mayo (but if another authority, or public officer or other person is for the time being designated by the State pursuant to Article 2(2) of the Service Regulation, shall be such other authority, or public officer or other person) and, when used in relation to any other State in which the Service Regulation applies, means the authority or authorities so designated by the relevant State under Article 2(2) of the Service Regulation to receive requests for the service of documents;

‘Service Regulation’ means Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters (service of documents) and repealing Council Regulation No 1348/2000 (OJ L 324/79);

‘The Hague Convention’ means the Hague Convention of 15th November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;

‘Transmitting Agency’, when used in relation to the State means Combined Court Office situate at Castlebar in the County of Mayo (but if another authority, or public officer or other person is for the time being designated by the State pursuant to Article 2(1) of the Service Regulation, shall be such other authority, or public officer or other person) and when used in relation to any other State in which the Service Regulation applies, means the public officers, authorities or other persons designated by the relevant State under Article 2(1) of the Service Regulation to transmit requests for the service of documents;

‘jurisdiction’ shall mean the jurisdiction of the State.

[SI 145/19; SI 367/09]

Cases in which service may be allowed

2. Service out of the jurisdiction of a civil summons or other originating document, or of notice thereof, may be allowed by the court in the following cases—

(a) in proceedings for ejectment where the premises sought to be recovered are within the jurisdiction;

(b) in proceedings founded on a contract where such a contract is—

(i) made within the jurisdiction, or

(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction, or

(iii) by its terms or implications to be governed by Irish Law;

(c) in proceedings brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

(d) in proceedings founded on a tort committed within the jurisdiction;

(e) where any relief is sought against a person domiciled or ordinarily resident within the jurisdiction;

(f) where any person out of the jurisdiction is a necessary or proper party to an action properly brought against another person duly served within the jurisdiction;

(g) in proceedings relating to a minor or person of unsound mind domiciled in, or a citizen of Ireland.

(h) where necessary, in proceedings brought under subsection (3) of section 38 of the Criminal Justice Act, 1994 (and in accordance with rule 6 of Order 38 of these Rules) for an order authorising the further detention of cash seized.

[SI 200/05]

How application to be made

3. An application for leave to serve a civil summons or other originating document, or notice thereof, upon a person out of the jurisdiction shall be made ex parte and shall be supported by an affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such person is or probably may be found, and whether such person is or is not a citizen of Ireland, and the grounds on which the application is being made. No such leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order.

Court to fix date of hearing

4. Upon granting such an application, the court shall fix the date of hearing of the proceedings, and in so doing shall have regard to the place or country where or within which such summons, document or notice is to be served.

Where person to be served

5. Whenever an order is made granting leave to serve out of the jurisdiction under the provisions of this Order,

Is a citizen of Ireland

(1) if the person to be served is a citizen of Ireland, the civil summons or other originating document (together with any other document required in any particular case to be served) shall be served upon that person;

Is not a citizen of Ireland

(2) if the person to be served is not, or is not known or believed to be, a citizen of Ireland, notice of the civil summons or other originating document, and not the summons or document itself, (together with any other document required in any particular case to be served) shall be served upon that person;

Copy of order granting leave must also be served

(3) it shall be necessary in all cases to serve a copy of such order granting leave together with the civil summons or other originating document or notice thereof referred to in paragraphs (1) and (2) hereof.

How service to be effected

6. (a) Whenever leave is granted under this Order to serve out of the jurisdiction a civil summons or other originating document, or notice thereof, such service shall be effected by registered post or by insured post, as appropriate, or by such other method as the court shall determine.

(b) When service is being effected by registered post, application for an advice of delivery should be made to the postal authorities at the time of posting. Proof of such service by post shall be by the production of a statutory declaration as to service, the certificate of posting and the advice of delivery form (when returned), which documents shall be lodged with the Clerk together with the originals of the documents which were posted. Such service shall be deemed to have been effected at the time at which the envelope containing the copy civil summons or other originating document or copy of the notice thereof, and the copy of the order granting leave to serve out of the jurisdiction (and copy of any other document required to be served) would have been delivered in the ordinary course of post.

In cases where The Hague Convention applies

(c) In a case where the person to be served is in another State in which the Service Regulation applies, service shall be effected in accordance with the provisions of the Regulation, which may include service by diplomatic or consular agents, in accordance with Art 13 of the Service Regulation (save where that Member State has communicated, in accordance with Art 23(1) of the Service Regulation, that it is opposed to the service of documents in its territory in the said manner), by registered post in accordance with Art 14 of the Service Regulation or by direct service, in accordance with Art 15 of the Service Regulation. In any other case where the person to be served is in another State which is a party to the Hague Convention, service shall be effected in accordance with the provisions of the Convention (which may include service by post under paragraph (a) provided the destination State has not made an objection to such service under Art 10(a) of the Hague Convention).

[SI 367/09]

PART II

SERVICE UNDER THE SERVICE REGULATION OR THE HAGUE CONVENTION

Hague Convention procedure

7. Where any document for use in civil or commercial proceedings in the District Court is to be served upon a person in any other State in which the Service Regulation applies, or in any State in which the Service Regulation does not apply but which is a party to the Hague Convention, that document shall be served, as appropriate, in accordance with the provisions of the Service Regulation or of the Hague Convention.

[SI 635/05]

Party to lodge documents with Master

8. Any party to any proceedings in a civil or commercial matter or a solicitor acting for any such party or, as the case may be, any District Court Clerk who wishes to have a document served abroad pursuant to the Service Regulation or the Hague Convention may lodge with the Transmitting Agency or the Central Authority, as appropriate—

(a) A request for the service of the document in the form specified in the Annex to the Service Regulation or in the Annex to the Hague Convention, as appropriate, and a copy thereof;

(b) Two copies of the document to be served, with an additional copy thereof for each person to be served;

(c) A translation of each document into the official languages or one of the official languages of State addressed, or in another language which that State has indicated it can accept, unless that document is already in one of those languages;

(d) An undertaking to pay the costs of service, payment or reimbursement of which these may be sought by the Receiving Agency or by the Central Authority of the State addressed: and the relevant provision of Order 11B of the Rules of the Superior Courts shall apply in every such case.

[SI 635/05]

Certificate of service

9. (1) A certificate of service completed and forwarded under Art 10 of the Service Regulation by the Receiving Agency or under Art 6 of The Hague Convention by the Central Authority of the State addressed or any authority which it may have designated for that purpose shall be prima facie evidence of the facts stated therein. A document purporting to be such a certificate shall, until the contrary is proved be deemed to be such a certificate.

[SI 635/05]

To be lodged with Clerk

(2) Upon receipt of the said certificate the plaintiff (or solicitor for the plaintiff) shall lodge with the Clerk the original of the document instituting the proceedings (and, where appropriate, the notice thereof) and the said certificate at least four days prior to the date fixed for the hearing.

Procedure on non-appearance of defendant

10. (1) Where a document instituting proceedings (or notice thereof) had to be transmitted abroad for the purposes of service under the provisions of the Service Regulation or The Hague Convention and the defendant has not appeared or given notice to defend, judgment shall not be given until it is established that—

[SI 635/05]

(a) the document or notice was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons within its territory, or

(b) the document or notice was actually delivered to the defendant or to the defendant’s residence by another method provided for by the Service Regulation or that Convention,

[SI 635/05]

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

(2) At the hearing of the proceedings the Clerk shall produce to the court any communication or correspondence received from the defendant.

Judgment may be given notwithstanding rule 10(1)

11. Notwithstanding the provisions of rule 10(1) hereof, the court may give judgment even if no certificate of service or delivery as provided by the Service Regulation or The Hague Convention has been received, if all the following conditions are fulfilled—

[SI 635/05]

(a) the document or notice thereof was transmitted by one of the methods provided for in the Service Regulation or that Convention,

[SI 635/05]

(b) a period of time of not less than six months, considered adequate by the Judge in the particular case, has elapsed since the date of the transmission of the document or notice,

(c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Time for appeal may be extended

12. In any case where the document instituting proceedings to which this Order relates (or notice thereof) had to be transmitted abroad for service under the provisions of the Service Regulation or The Hague Convention and judgment has been given against a defendant who has not appeared, any application by or on behalf of such defendant to extend the time for appeal from the judgment shall be by motion on notice and shall be grounded upon the affidavit of the moving party. Upon hearing the application the court may, if satisfied that—

[SI 635/05]

(a) the application was made within a reasonable time after the defendant had knowledge of the judgment and

(b) the defendant without any fault on his or her part, did not have knowledge of the documents in sufficient time to defend or, as the case may be, knowledge of the judgment in sufficient time to appeal and

(c) the defendant had disclosed a prima facie defence to the action on the merits, extend the time for appeal from the judgment on such terms and conditions as to the court seem just.

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