Superior Court Rules

ORDER 22

PAYMENT INTO AND OUT OF COURT AND TENDER

1. (1) In any action for a debt or damages (other than an action to which Section 1(1) of the Courts Act 1988 applies) or in an admiralty action the defendant may—

(a) at any time after he has entered an appearance in the action and

(i) before it is set down for trial or

(ii) in the case of proceedings subject to case management under Part II of Order 63C, within four weeks of the fixing of a trial date or

(b) at any later time by leave of the Court, upon notice to the plaintiff,

pay into Court a sum of money in satisfaction of the amount recoverable by the plaintiff from the defendant in the claim or (where several causes of action are joined in one action) in satisfaction of the amount recoverable by the plaintiff from the defendant in one or more of the causes of action.

[SI 255/16]

(1A) In an action for damages for defamation the defendant may, upon giving notice in writing to the plaintiff, pay a sum of money into court in satisfaction of the action in accordance with section 29 of the Defamation Act, 2009.

[SI 511/09]

(2) A defendant may once, without leave, and upon notice to the plaintiff, pay into court an additional sum of money as an increase in a payment made under paragraph (1) hereof. Such notice must be given and payment made at least three months before the date on which the action is first listed for hearing. Such increased lodgement shall thereupon become the sum paid into court and the date of such increased payment the date of the payment into court. If such notice is not given, and such payment not made as aforesaid the payment made, under paragraph (1) shall be deemed to be the only payment into court and this Order shall be construed accordingly.

(3) In actions where the defence raises questions of title to land or incorporeal hereditaments, money may not be paid into court under this rule unless liability is admitted in the defence.

[SI 511/09]

(4) In an action on a bond, covenant or agreement coming within the provisions of the Common Law Procedure Amendment Act (Ireland), 1853, section 145, payment into court under this rule shall be admissible as to particular breaches only, and not to the whole action.

(5) Where money is paid into court in satisfaction of one or more of several causes of action the notice shall specify the cause or causes of action in respect of which payment is made, and the sum paid in respect of each cause of action, unless the court otherwise orders.

(6) The notice shall be in the Form No 4 or No 5, as appropriate, in Appendix C, and shall state whether liability is admitted or denied, and subject to rule 7, shall be regarded as part of the pleadings.

(7) A defendant may once without leave and upon notice to the plaintiff pay into court a sum of money in satisfaction of any action to which section 1(1) of the Courts Act, 1988 applies, either at the time of the delivery of a defence or within a period of four months from the date of the notice of trial. A defendant who has not made such payment within the time permitted or who wishes to increase such sum as has been lodged may only do so by leave of the court and upon such terms and conditions as to the court seem fit.

[SI 229/90]

(8) In an action to which section 1(1) of the Courts Act, 1988 applies, the pleadings shall not disclose the fact that money has been paid into court or the amount thereof nor shall communication of such facts be made to the Judge provided always that a Judge may, before or at the trial of such action, enquire for good or sufficient reason as to whether, and if so in what amount, a payment has been made into court under the preceding sub-rule.

[SI 229/90]

(9) Notwithstanding sub-rule 7, in any case in which the plaintiff has served a notice of replies to particulars or additional particulars (without a request therefor) after the expiry of the time within which a defendant could make a payment into court without leave, the defendant may, thereupon, without leave, make a payment or increase any payment made into court within 21 days from the date thereof upon notice to the plaintiff.

[SI 265/93]

(10) Notwithstanding sub-rule 7, in any case in which a period in excess of 18 months has elapsed since the date of the notice for trial, a defendant may, without leave, make a payment into court within 21 days, upon notice to the plaintiff, provided that the said payment, if not accepted by the plaintiff, shall not take effect until the expiry of two months from the date upon which it was made or increased, as the case may be.

[SI 265/93]

2. It shall be lawful for any defendant in any action for the recovery of land for non-payment of rent, before or at the time of delivering his defence, or where the defendant is not required to deliver a defence, before or at the time of filing an affidavit in answer to the plaintiff’s claim, or at any later time by leave of the court, upon notice to the plaintiff to pay into court a sum of money for rent, with an undertaking to pay the costs then incurred when taxed and ascertained and in case of non-payment thereof to suffer judgment to be marked, and thereupon the plaintiff, if he shall not accept the said sum in full discharge of the action, with costs to be taxed by the proper officer, may proceed in the said action at his peril; and if upon trial of the issue it shall appear that no greater sum was due for rent at the time of the service of the summons than the sum paid into court, the verdict shall be entered for the defendant.

3. With a defence or affidavit setting up a tender before action, the sum of money alleged to have been tendered must be brought into court.

4. (1) Where money is paid into court under rule 1 the plaintiff may, within 14 days of the receipt of notice of payment into court, or within such further period as may be agreed upon by the parties, accept the whole sum or any one or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the specified sum or sums relate, by giving notice to the defendant in the Form No 6 in Appendix C; and thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.

(2) Payment shall be made to the plaintiff or on his written authority to his solicitor, and thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed.

(3) If the plaintiff accepts money paid into court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more of the specified causes of action, and gives notice that he abandons the other cause or causes of action, he may after four days from payment out, unless the court otherwise orders, tax his costs incurred to the date of giving notice to the defendant in accordance with the provisions of sub-rule (1) hereof, and 48 hours after taxation may sign judgment for his taxed costs.

(4) This rule does not apply to admiralty actions.

5. If the whole of the money in court is not taken out under rule 4, the money remaining in court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in and in pursuance of an order of the court, which may be made at any time before, at, or after trial.

6. If the plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than the amount paid into court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply:

(1) If the amount paid into court exceeds the amount awarded to the plaintiff, the excess shall be repaid to the defendant and the balance shall be retained in court.

(2) The plaintiff shall be entitled to the costs of the action up to the time when such payment into court was made and of the issues or issue, if any, upon which he shall have succeeded.

(3) The defendant shall be entitled to the costs of the action from the time such payment into court was made other than such issues or issue as aforesaid.

(4) The costs mentioned at paragraphs (2) and (3) hereof shall be set off against each other; and if the balance shall be in favour of the defendant, the amount thereof shall be satisfied pro tanto out of the money remaining in court and, in so far as the money remaining in court is not sufficient to satisfy the same, shall be recoverable from the plaintiff; or if the balance shall be in favour of the plaintiff, the amount thereof shall be recoverable from the defendant.

(5) Any money remaining in court after satisfying the balance (if any) due to the defendant for costs as aforesaid shall be paid out to the plaintiff.

(6) If in any case the court is of opinion that for the purposes of the preceding paragraphs of this rule it is not necessary to retain in court the whole of the balance referred to in paragraph (1) it may order the payment out to the plaintiff of so much thereof as it deems proper.

(7) The amount awarded to the plaintiff shall be deemed to be satisfied by the application in manner aforesaid of the moneys paid into court.

7. (1) The fact that money has been paid into Court under any of the preceding rules of this Order shall not be stated in the defence, or where the defendant is not required to deliver a defence, in the affidavit filed in answer to the plaintiffs claim.

(2) Except in an action to which a defence of tender before action is pleaded, no communication shall be made either of the fact that money has been paid into Court or of the amount so paid into Court:

(a) to the Judge at the trial of any action until all questions of liability and amount of debt or damages have been decided, or

(b) to the jury where an action is tried by a Judge with a jury.

(3) Notwithstanding sub-rules (1) and (2), a Judge may, before or at the trial of an action, enquire for good or sufficient reason as to whether, and if so in what amount, a payment has been made into Court under the preceding rules of this Order.

[SI 396/13]

8. A plaintiff may, in answer to a counterclaim, pay money into court in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into court by a defendant.

9. Money paid into court under an order of the court shall not be paid out of court except in pursuance of an order of the court: provided that, where before the delivery of defence money has been paid into court by the defendant pursuant to an order under the provisions of Order 37, he may (unless the court shall otherwise order) by notice in writing appropriate the whole or any part of such money, and any additional payment if necessary, to the whole or any specified portion of the plaintiff’s claim or if he pleads a tender may by his pleading appropriate the whole or any part of the money in court as payment into court of the money alleged to have been tendered; and the money so appropriated shall thereupon be deemed to be money paid into court pursuant to the preceding rules of this Order relating to money paid into court, or money paid into court with a plea of tender as the case may be, and shall be subject in all respects thereto.

10. (1) In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into court, either before or at or after trial, shall, as regards the claims of any such infant or person of unsound mind, be valid without the approval of the court.

(2) No money (which expression for the purposes of this rule includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such cause or matter in respect of the claims of any such infant or person of unsound mind, whether by verdict or by settlement, compromise, payment into court or otherwise, before or at or after the trial, shall be paid to the plaintiff or to the next friend of the plaintiff or to the plaintiff’s solicitor unless the court shall so direct.

(3) All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the court shall direct, and the said money or any part thereof may be so directed—

(a) to be paid into the High Court and to be invested or otherwise dealt with there; or

(b) to be paid into or transferred to the Circuit Court of the district in which such plaintiff resides, or such other Circuit Court as the court may think fit.

The Forms Nos 9 and 10 in Appendix E may be used in cases to which they are applicable.

(4) (i) The directions referred to in paragraph (3) of this rule may include any general or special directions that the court may think fit to give, including (without prejudice to the generality of the above provision) directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into court, and (in case of transfer to the Circuit Court) either before or after it is transferred to the Circuit Court, to the plaintiff or to the next friend in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the infant or person of unsound mind or otherwise, or to the plaintiff’s solicitor in respect of costs.

(ii) The certificate of the birth of every such infant plaintiff shall be produced to the court, and the date of such birth shall be recited in the certificate or order of the court.

(5) The proper officer of the Central Office shall on request from the County Registrar furnish to him free of charge copies of such documents as may be required by the Circuit Court in any cause or matter in which money shall have been paid or transferred under paragraph (3)(b) of this rule.

(6) Money paid into or transferred to the Circuit Court under this rule shall (subject to any order or direction that may be given in the judgment or order for payment or transfer thereof) be held, invested, applied or otherwise dealt with for the benefit of such plaintiff in such manner as the Circuit Court in its discretion thinks fit and in accordance with the Circuit Court Rules for the time being in force.

(7) Nothing in this rule shall prejudice the lien of a solicitor for costs.

(8) Subject to any order which may be made by the court (whether on consent or otherwise) as to the costs of the plaintiff or plaintiffs in any such cause or matter, or as to the amount of such costs or the mode of payment thereof—

(i) The costs of the plaintiff, or if more than one, of all the plaintiffs in any such cause or matter or incident to the claims therein or consequent thereon shall, as regards costs ordered to be paid to such plaintiff or plaintiffs by the defendant or any other party to such cause or matter be adjudicated by the Legal Costs Adjudicator as between party and party.

(ii) The costs (if any) of the plaintiff or if more than one of all such plaintiffs not ordered to be paid by or recoverable from any other party shall be adjudicated by the Legal Costs Adjudicator as between legal practitioner and client on notice to the General Solicitor for Wards of Court. If any portion of such costs be payable by any adult party to the cause or matter who is sui juris, the Legal Costs Adjudicator shall certify the amount of such portion and the portions payable by such infant or person of unsound mind. No costs other than those so certified shall be payable to the solicitor for any plaintiff in the cause or matter.

[SI 584/19]

(9) This rule shall apply mutatis mutandis to—

(a) money recovered on a counterclaim;

(b) money recovered by a person of unsound mind whether so found by inquisition or not so found;

(c) any action settled on behalf of an infant before trial.

(10) Whenever the rules of procedure or the provisions of a scheme relating to the operation of a Tribunal require any award proposed to be made to a minor by the said Tribunal to be approved by the High Court, the following procedure shall apply:

(a) An application for the approval of the court shall be made by motion ex parte grounded upon an affidavit entitled ‘IN THE MATTER OF THE TRIBUNAL’ and ‘IN THE MATTER OF AN APPLICATION RELATING TO A.B., A MINOR, OF [ADDRESS] BY C.D., ACTING AS NEXT FRIEND ON BEHALF OF THE SAID A.B.’ Such application shall be made to the President of the High Court or a Judge assigned by the President to hear such applications.

(b) When approving such an award the court may appoint a person of full age to act as the minor’s next friend and may authorise the next friend to accept the said award on behalf of the minor.

(c) Where applicable, the provision of Order 22, rule 10(3) to (6) and rule 11 shall apply mutatis mutandis to awards made to minors and approved in accordance with this rule.

[SI 52/97]

(11) In the case of applications for the approval by the court of an assessment under section 35(2) of the Personal Injuries Assessment Board Act, 2003 (in this sub-rule hereinafter referred to as ‘the 2003 Act’), the following procedure shall apply:

(a) An application for the approval of the court shall be made by motion ex parte by the next friend, committee or other person referred to in section 35(1) of the 2003 Act.

(b) The application shall be grounded upon an affidavit entitled ‘IN THE MATTER OF THE PERSONAL INJURIES ASSESSMENT BOARD ACT, 2003’ and ‘IN THE MATTER OF AN APPLICATION RELATING TO A.B., A [MINOR OR PERSON OF UNSOUND MIND], OF [ADDRESS] BY C.D., ACTING AS [STATE CAPACITY] ON BEHALF OF THE SAID A.B.’

(c) Such application shall be made to the President of the High Court or a Judge assigned by the President to hear such applications.

(d) When approving such an assessment the court may appoint a person of full age to act as next friend of the minor or, where appropriate, of the person of unsound mind.

(e) Where applicable, the provisions of Order 22, rule 10(3) to (6) and rule 11 shall apply mutatis mutandis to assessments made in favour of minors or persons of unsound mind approved in accordance with this sub-rule in respect of the amount recoverable in accordance with section 38 of the 2003 Act.

(f) The Registrar shall send by ordinary prepaid post or by e-mail to the Personal Injuries Assessment Board a certified copy of any order made pursuant to this sub-rule.

(g) In the event of an order to pay issuing in accordance with section 38 of the 2003 Act, a copy thereof shall be sent forthwith by the Personal Injuries Assessment Board to the Registrar in the Central Office by ordinary prepaid post or by e-mail.

[SI 517/04]

11. Money paid into court or investments made under the provisions of rule 10, and the dividends or interest thereon, shall be sold, transferred, or paid out to the party entitled thereto, pursuant to the order of the court.

12. Money may be paid into court under this Order by one or more of several defendants sued jointly or in the alternative upon notice to the other defendant or defendants. If the plaintiff elects within the time limited by this Order to accept the money paid into court, he shall give notice as in rule 4 mentioned to each defendant and thereupon all further proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed and the money shall not be paid out except in pursuance of an order of the court dealing with the whole costs of the action or cause or causes of action (as the case may be).

13. In any cause or matter in which damages are claimed under the Civil Liability Act, 1961, Part IV, money paid into court under this Order shall not be paid out without an order of the court.

Offer of Payment in Lieu of Lodgement

14. (1) A party shall be regarded as a qualified party for the purposes of this rule if it is:

(1) a Minister of Government; or

(2) the Attorney General; or

(3) the Government; or

(4) the State; or

(5) any party in respect of whom the State is providing an indemnity;

(6) an indemnifier of any party and authorised to carry on business in the State as an insurance undertaking pursuant to the law for the time being in force; or

(7) the Motor Insurers Bureau; or

(8) the Visiting Motor Insurers Bureau.

(2) Where a qualified party is entitled to make or increase a lodgement on his own behalf or on behalf of any other party under the foregoing rules or by order of the court then such party may, in lieu of lodging any money in court, make an offer of tender of payment to the other party or parties to the cause or proceedings.

(3) Any tender offer of payment made hereunder shall be deemed to be a lodgment and to have the same effect as a lodgment and all the foregoing provisions of Order 22 shall apply mutatis mutandis to such tender offers as regards time for making and accepting same, and non-disclosure of the fact or amount of the tender offer, as they apply to a lodgment.

[SI 396/13]

(4) A tender offer shall be made in accordance with the Form No 4A or 5A, in Appendix C, as appropriate, and shall state whether liability is admitted or denied and, subject to rule 7, shall be regarded as part of the pleadings. Notice of acceptance of the tender shall be in the Form No 6A in Appendix C and the provisions of rule 4 shall apply thereto.

(5) In any case in which a tender offer has been accepted, the party having made such offer thereupon being required to pay the sum specified, such sum specified shall be paid within four weeks of the date of receipt of notice of acceptance of same.

(6) Any qualified party who has made a tender offer which has been accepted but who has failed to pay the sum specified in the said tender offer within the time required shall continue to be liable to pay the sum specified together with interest thereon at the rate fixed for judgments of the court for each month or portion of the month for which the said sum or any part thereof remains unpaid.

(7) Any party or qualified party shall have liberty to apply to the court in relation to any tender offer or any matter relating thereto and the court may make such order or give such directions thereon as shall appear just and proper.

[SI 328/00]

15. (1) Where —

(a) any issue arises in proceedings as to the apportionment of liability between defendants, whether in one or other of the circumstances set forth in rule 12 of Order 16, or on the pleadings as between such defendants, and

(b) one or more of such defendants is a qualified party within the meaning of rule 14,

such defendant, or such defendants acting together (in this sub-rule referred to as the ‘offeror’), may, having served a notice pursuant to rule 12 of Order 16 where that rule so permits, make to any other defendant or defendants (in this sub-rule referred to as the ‘offeree’), at any time prior to the trial of the issue of apportionment of liability between the offeror and offeree, an offer in writing (in this sub-rule referred to as a ‘tender between defendants’) to pay a specified amount of the total damages for which the defendants may be liable to the plaintiff. An offer made under this sub-rule by more than one defendant shall operate as an offer made jointly by those defendants.

(2) Where a tender between defendants is accepted, and judgment in the proceedings is entered against the offeror and offeree, the offeror shall become liable on the conclusion of the proceedings to account to the offeree for the payment to the plaintiff of the specified amount of the total damages mentioned in the preceding sub-rule.

(3) Where judgment in the proceedings is entered against the offeror and offeree, and the offeree has not accepted a tender between defendants, and the amount of the total damages awarded to the plaintiff which the offeror is liable to pay does not exceed the amount specified in the tender between defendants, then, unless the Judge at the trial of the issue of apportionment of liability between the defendants concerned shall, for special cause shown and mentioned in the order, otherwise direct, the offeree shall be liable to the offeror in respect of the costs of the issue of apportionment incurred after the date of the tender between defendants.

(4) Any party or qualified party shall have liberty to apply to the court in relation to any tender between defendants or any matter relating thereto and the court may make such order or give such directions thereon as shall appear just and proper.

[SI 249/05]

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