District Court Rules

ORDER 41A

SERVICE OF DOCUMENTS OUTSIDE THE STATE WITH THE PERMISSION OF THE COURT

1 Definitions

1. In this Order—

‘Central Authority’:

(a) when used in relation to the State, means the Master of the High Court; and

(b) when used in relation to another State which is a party to the Hague Convention means the authority or authorities designated by that State under Article 2 of the Hague Convention to receive requests for the service of documents;

‘document’ includes an extrajudicial document;

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

‘Receiving Agency’, for the purposes of the Service Regulation:

(a) when used in relation to the State means any County Registrar; and

(b) when used in relation to another State in which the Service Regulation applies, means the authority or authorities designated by that State under Article 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);

‘Transmitting Agency’, for the purposes of the Service Regulation:

(a) when used in relation to the State means any County Registrar; and

(b) when used in relation to another State in which the Service Regulation applies, means the public officers, authorities or other persons designated by the relevant State under Article 2 of the Service Regulation to transmit requests for the service of documents.

[SI 17/14]

2 Cases in which service outside the State may be allowed

2. Service outside the State of a claim notice or other originating document (or of notice of an originating document), 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 State;

(b) in proceedings in contract, where the contract is

(i) made in the State, or

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

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

(c) in proceedings for a breach committed in the State of a contract

wherever made (even if such breach was preceded or accompanied by a breach outside of the State which rendered impossible the performance of the part of the contract which ought to have been performed in the State);

(d) in proceedings in tort, where the tort was committed in the State;

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

(f) where any person outside the State is a necessary or proper party to an action properly brought against another person duly served in the State;

(g) in proceedings relating to a child or person of unsound mind domiciled in or a citizen of the State;

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

[SI 17/14]

3 How an application for permission to serve outside the State is made

3. (1) An application for permission to serve a claim notice or other originating document, (or notice thereof), on a person outside the State must be made ex parte and must be supported by an affidavit, or other evidence, which shows:

(a) that in the belief of the deponent, the claimant has a good cause of action; and

(b) where the respondent is or probably may be found; and

(c) whether the respondent (or, as the case may be, the relevant respondent) is or is not a citizen of Ireland; and

(d) the grounds on which the application is made.

(2) Permission must not be granted unless it sufficiently appears to the Court that the case is a proper one for service out of the State under this Order.

[SI 17/14]

4 Documents to be served on the respondent (or relevant respondent)

4. When an order is made granting permission to serve outside the State under the provisions of this Order,

(1) if the respondent to be served is a citizen of Ireland, the claim notice or other originating document must be served on that respondent, together with any other document required in any particular case to be served;

(2) if the respondent to be served is not, or is not known or believed to be, a citizen of Ireland, notice of the claim notice or other originating document (instead of the document itself) must be served on that respondent, together with any other document required in any particular case to be served;

(3) a copy of the order granting permission must also be served on the respondent with the documents required by sub-rules (1) and (2).

[SI 17/14]

5 Mode of service on the respondent (or relevant respondent)

5. (1) When permission is granted to serve outside the State under this Order, service must be by registered post or by insured post, as appropriate, or by such other method as the Court directs.

(2) When service under this rule is by registered post, application for an advice of delivery must be made to the postal authorities at the time of posting. Proof of service by post must be by the production of a statutory declaration of service, the certificate of posting and the advice of delivery form (when returned). These documents must be lodged with the Clerk with the originals of the documents of which copies were posted.

(3) Service under this rule by registered post must be taken to have been effected on the day on which the envelope containing the documents would be delivered in the ordinary course of post or on such other day as may be proved.

[SI 17/14]

6 Where the Service Regulation applies (service in the European Union outside the State)

6. Where the person to be served is in another State in which the Service Regulation applies, service must be in accordance with the provisions of the Service Regulation which, in addition to lodgment for service with the Transmitting Agency in accordance with rule 11(2), may include:

(a) service by diplomatic or consular agents, in accordance with Article 13 of the Service Regulation (save where that Member State has communicated, in accordance with Article 23(1) of the Service Regulation, that it is opposed to the service of documents in its territory by diplomatic or consular agents), or

(b) direct service, in accordance with Article 15 of the Service Regulation (save where that Member State has communicated in accordance with Article 23(1) of the Service Regulation that it is opposed to direct service of documents in its territory).

[SI 471/18]

7 Where the Hague Convention applies (outside the European Union)

7. Where the person to be served is in another State which is a party to the Hague Convention (and in which the Service Regulation does not apply), service must be in accordance with the provisions of the Hague Convention, which may include service by post under rule 5 provided the destination State has not objected to postal service under Article 10(a) of the Hague Convention.

[SI 17/14]

8 Stay, setting aside service etc.

8. (1) The Court may make an order on an application by a party served with a claim notice outside the State to—

(a) set aside the claim notice or its service;

(b) set aside or vary an order giving permission to serve outside the State where the application for an order—

(i) was made on notice to the party, but the party did not attend the hearing of the application; or

(ii) was not made on notice to that party;

(c) stay the claim notice.

(2) Without limiting sub-rule (1), the Court may make an order under this rule on the ground that service out of the State is not authorised by these Rules.

(3) The Court may make an order under this Rule before an application is made under rule 13 or before an order of the Court is made on such an application.

[SI 17/14]

9 Service of counterclaim or third party notice

9. (1) This rule applies to—

(a) a counterclaim against the claimant and another person joined as respondent in accordance with Order 43 if the person joined is not already a party to the proceeding; and

(b) a third party notice filed in accordance with Order 42A.

(2) A counterclaim or third party notice may be served out of the State without permission where the claim made by the respondent in the counter- claim or third party notice is of such a kind that, if the claim were made by claim notice, the claim notice could be served out of the State without permission of the Court under Order 41B.

[SI 17/14]

10 Procedure

10. (1) Where a document for use in civil or commercial proceedings in the Court is to be served on a person in another State in which the Service Regulation applies, that document must be served in accordance with the provisions of the Service Regulation.

(2) Where a document for use in civil or commercial proceedings in the Court is to be served on a person in another State in which the Service Regulation does not apply but which is a party to the Hague Convention, that document must be served in accordance with the provisions of the Hague Convention.

[SI 17/14]

11 Lodgment of documents for service

11. (1) A request for service of documents outside the State in civil proceedings in the District Court may be made by:

(a) a party;

(b) a solicitor acting for a party; or

(c) a Clerk.

Service Regulation

(2) A person requesting service of a document abroad under the Service Regulation must lodge with the Transmitting Agency as appropriate:

(i) a request for service of the document in the form specified in the Annex to the Service Regulation, and a copy thereof;

(ii) two copies of the document to be served, and an additional copy for each person to be served;

(iii) a translation of each document into the official language 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;

(iv) an undertaking to pay the costs of service, payment or reimbursement of which these may be sought by the Receiving Agency of the State addressed;

and the relevant provisions of Order 11D of the Rules of the Superior Courts apply in every such case.

Hague Convention

(3) A person requesting service of a document abroad under the Hague Convention must lodge with the Central Authority (Master of the High Court):

(i) a request for the service of the document in the form specified in the Annex to the Hague Convention, and a copy thereof;

(ii) two copies of the document to be served, and an additional copy for each person to be served;

(iii) a translation of each document into the official language 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;

(iv) an undertaking to pay the costs of service, payment or reimbursement of which these may be sought by the Central Authority of the State addressed;

and the relevant provisions of Order 11E of the Rules of the Superior Courts apply in every such case.

[SI 17/14]

12 Certificate of service

12. (1) A certificate of service completed and forwarded under:

(a) Article 10 of the Service Regulation by the Receiving Agency; or

(b) Article 6 of the Hague Convention by the Central Authority addressed or any authority which it may have designated for that purpose

must be taken to be prima facie evidence of the facts stated in that certificate.

(2) A document purporting to be such a certificate must, until the contrary is proved, be deemed to be such a certificate.

(3) On receipt of a certificate mentioned in sub-rule (1), the claimant (or the claimant’s solicitor) must lodge the certificate with the Clerk.

[SI 17/14]

13 Procedure on non-appearance of the respondent

13. (1) Where a claim notice or other document instituting proceedings (or notice thereof) was transmitted abroad for service under the Service Regulation or the Hague Convention and the respondent has not filed and served an appearance and defence or otherwise given notice of intention to defend the claim, judgment must not be given until it is established that:

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

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

and, in either of these cases, the service or the delivery was in sufficient time to enable the respondent to defend.

(2) An application for judgment in default of appearance and defence in a case mentioned in sub-rule (1) may be made by filing an affidavit with the Clerk, but the Clerk may in any such case list the application before the Court for hearing and notify the claimant of the return date of the application.

(3) At the hearing of any application in the proceedings the Clerk must produce to the Court any communication or correspondence received from the respondent.

[SI 17/14]

14 Judgment may be given despite absence of certificate of service

14. Despite rule 10, 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 of the following conditions are fulfilled-

(a) the document or notice thereof was transmitted by a method provided for in the Service Regulation or the Hague Convention,

(b) a period of not less than six months, considered adequate by the Court in the particular case, has elapsed since 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.

[SI 17/14]

15 Time for appeal may be extended

15. (1) Where a claim notice or other document instituting civil proceedings (or notice thereof) was transmitted abroad for service under the Service Regulation or the Hague Convention and judgment has been given against a respondent who has not appeared, the respondent may apply to extend the time for appealing from the judgment.

(2) An application by a respondent under sub-rule (1) must be made by motion on notice and must be grounded on the affidavit of the moving party.

(3) On hearing the application, if the Court is satisfied that-

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

(b) without any fault on his or her part, the respondent 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 respondent has a prima facie defence to the claim on the merits,

the Court may extend the time for appealing from the judgment on such terms and conditions as the Court considers just.

[SI 17/14]

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