Superior Court Rules

ORDER 27

DEFAULT OF PLEADING

1. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, subject to the provisions of rule 1A, at the expiration of that time, apply to the court to dismiss the action, with costs, for want of prosecution; and on the hearing of the first such application, the court may order the action to be dismissed accordingly, or may make such other order on such terms as the court shall think just; and on the hearing of any subsequent application, the court shall order the action to be dismissed as aforesaid, unless the court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure and, where it is so satisfied, the court shall make an order—

(a) extending the time for delivery of a statement of claim,

(b) adjourning the motion for such period as is necessary to enable a statement of claim to be delivered within the extended time,

and on such adjourned hearing—

(i) if a statement of claim has been delivered within the extended time, the court shall allow the defendant the costs of and in relation to the motion at such sum as it may measure in respect thereof;

(ii) if a statement of claim has not been delivered within the extended time, the court shall order the action to be dismissed, with costs, for want of prosecution.

[SI 63/04]

1A. (1) No notice of motion to dismiss the action for want of prosecution in actions claiming unliquidated damages in tort or contract may be served, unless the defendant has at least 21 days prior to the service of such notice, written to the plaintiff giving him notice of his intention to serve a notice of motion to dismiss the plaintiff’s claim and at the same time consenting to the late delivery of statement of claim within 21 days of the date of the letter,

(2) If no statement of claim is delivered within the said period the defendant shall be at liberty to serve a notice of motion to dismiss the action, with costs, for want of prosecution, which shall be returnable to a date not less than 14 clear days from the date of the service of the notice; such notice of motion to be filed not later than six days before return date.

(3) If, not later than seven days after the service of such notice of motion to dismiss the action, with costs, for want of prosecution, the plaintiff delivers a statement of claim to the defendant and not later than six days before the return date lodges a copy thereof in the Central Office with a certified copy of the said notice of motion attached thereto, the said motion to dismiss shall not be put in the judges’ list but shall stand struck out and the plaintiff shall pay to the defendant the sum of €750 for his costs of the said motion to dismiss.

[SI 63/04]

2. Subject to the provisions of rules 15 and 16, if the plaintiff’s claim be only for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may at the expiration of such time enter final judgment in the Central Office for the amount of such debt or liquidated demand, or that the person whose title is asserted in the statement of claim shall recover possession of the land, or for the delivery of the specific goods without giving the defendant the option of retaining such goods upon paying the value thereof, as the case may be, with costs.

3. If the plaintiff’s claim be for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and also for pecuniary damages or any other relief, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may enter final judgment as in rule 2 provided and may also apply as in rule 8 provided in respect of the said claim for pecuniary damages or other relief.

4. When in any such action as in rules 2 and 3 mentioned there are several defendants, if one of them make default as mentioned in the said rules, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants or against the said defendant under rule 3.

5. If the action be for recovery of land for non-payment of rent, no judgment shall be entered under this Order until an affidavit has been filed, made by the landlord, his agent, receiver, or clerk, stating that there was, at the commencement of the action, at last one year’s rent due above all just and fair allowances.

6. In an action for the recovery of a holding or of lands including a holding agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent no judgment shall be entered under this Order until an affidavit has been filed made by the landlord, his agent, receiver, or clerk, verifying the special indorsement on the summons. Such affidavit may be in the Form No 6 in Appendix A, Part 1.

7. In probate actions, if any defendant make default in delivering a defence, the action may proceed, notwithstanding such default.

8. (1) In all other actions than those in the preceding rules of this Order mentioned, if a defendant being bound to deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 9, set down the action on motion for judgment; and on the hearing of the first such application the court may give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, or may make such other order on such terms as the court shall think just; and on the hearing of any subsequent application, the court shall give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, unless the court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure and, where it is so satisfied, the court shall make an order—

(a) extending the time for delivery of a defence,

(b) adjourning the motion for such period as is necessary to enable a defence to be delivered within the extended time, and on such adjourned hearing—

(i) if a defence has been delivered within the extended time, the court shall allow the plaintiff the costs of and in relation to the motion at such sum as it may measure in respect thereof,

(ii) if a defence has not been delivered within the extended time the court shall give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to.

(2) In the event of the court giving judgment to the plaintiff as aforesaid, any damages to which the plaintiff may be entitled shall be ascertained by the Judge with a jury, in case any party requires and is entitled to one, but otherwise without a jury, and, if without a jury, either by the Judge or by the Master or by the Examiner, as the Judge may direct, on evidence by affidavit or otherwise.

[SI 63/04]

9. (1) No notice of motion for judgment in default of defence in actions claiming unliquidated damages in tort or contract may be served, unless the plaintiff has at least 21 days prior to the service of such notice, written to the defendant giving him notice of his intention to serve a notice of motion for judgment and at the same time consenting to the late delivery of defence within 21 days of the date of the letter.

(2) If no defence is delivered within the said period the plaintiff shall be at liberty to serve a notice of motion for judgment in default of defence, which shall be returnable to a date not less than 14 clear days from the date of the service of the notice; such notice of motion to be filed not later than six days before the return date.

(3) If, not later than seven days after the service of such notice of motion for judgment, the defendant delivers a defence to the plaintiff and not later than six days before the return dated lodges a copy thereof in the Central Office with a certified copy of the said notice of motion attached thereto, the said motion for judgment shall not be put in the judges’ list but shall stand struck out and the defendant shall pay to the plaintiff the sum of €750 for his costs of the said motion for judgment.

[SI 63/04]

10. Where, in any such action as mentioned in rule 8, there are several defendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants.

11. If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.

12. In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the court for such judgment, if any, as upon the pleadings he may appear to be entitled to, and the court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties.

13. Before judgment by default shall be entered for any debt or liquidated demand under this Order, an affidavit shall be filed specifying the sum then actually due.

14. (1) Any order dismissing the plaintiff’s action for want of prosecution, whether under this Order or any other of these Rules, may be set aside by the court upon such terms as to costs or otherwise as the court may think fit, if the court is satisfied that at the time of the failure special circumstances (to be recited in the order) existed which explain and justify the failure.

(2) Any judgment by default, whether under this Order or any other of these Rules, may be set aside by the court upon such terms as to costs or otherwise as the court may think fit, if the court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and where an action has been set down under rule 8, such setting down may be dealt with by the court in the same way as if a judgment by default had been signed when the case was set down.

[SI 63/04]

15. In proceedings brought by a moneylender or the assignee or legal personal representative of a moneylender for the recovery of money lent by the moneylender or any interest thereon, judgment in default of defence shall not be entered until after the expiration of 12 months from the date of issue of the summons by which the proceedings were instituted unless the leave of the court shall have been first obtained. An application for such leave may be made by motion on notice served not less than four clear days before the hearing; and the provisions of Order 13, rule 14(2) and (3) shall apply to such application.

16. In actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement (as defined by the Hire-Purchase Act, 1946) or any contract of guarantee relating to such an agreement, judgment in default of defence shall not be entered until after the expiration of 12 months from the date of issue of the summons by which the proceedings were instituted unless the leave of the court shall have been first obtained. An application for such leave may be made by motion on notice served, not less than four clear days before the hearing, personally or by registered post addressed to the defendant at his last known place of address; and judgment shall not be entered until an affidavit shall have been filed stating that the requirements specified in section 3 or section 4 (as the case may be) of the Hire-Purchase Act, 1946, (as amended by sections 21 and 22 of the Hire-Purchase Act, 1960) have been complied with.

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