Appearance

Appearance

The entry of  appearance brings the defendant into the proceedings The failure to enter an appearance means  that there may be a judgment against the defendant by  default.

An entry of appearance to a summons must be made within eight days of service of the summons.A longer time  is allowed for an appearance in the case of services outside the jurisdiction.

Where an order is made giving consent to serve outside the jurisdiction, the court rules require a time limit to be provided in which entry of appearance must be made.  Longer periods apply after  service for entry of appearance under the EU Service Regulation or the Hague convention.  Generally, the period is extended to five weeks in the case of service within Europe or six weeks in the non-European territories of European Union states.

If an appearance has not been entered within the relevant time limit an application can be made for judgment in default of appearance.  Generally, a defendant may appear late up to the time of judgment.  Strictly speaking, it is not necessary to get the consent of the plaintiff to enter an appearance late.  Moreover, the defendant is  not entitled to any further time to deliver his defence without court consent.

A defendant may apply to set aside service as invalid before entering an appearance.  This may arise where proceedings are not validly brought within the terms of the European Regulation jurisdiction.  The application must be brought before the appearance is entered. A conditional appearance may be made to preserve the right to challenge, where it goes to jurisdiction. In other cases and generally, the entry of an appearance cures any defect in service.

Nature of Appearance

An appearance is a short form document prescribed by the rules stating the date of delivery with details of the defendant\’s solicitor.  A company must enter the appearance through a solicitor.  The solicitor\’s place of business must be stated.

The appearances are filed in the court office and notice must be given to the plaintiff or if he has a solicitor,  to his solicitor.  This may e served by post in the case of plenary summons. The entry of appearance must state whether a statement of claim is required.

There are slightly different provisions in relation to entry of appearance in particular specialised actions.

An appearance is an acknowledgment of service and notice of the proceedings.  Once an appearance is made, it is generally too late to object to service.

A person may appear to contest jurisdiction. The EU Regulations permit this type of hearing.  There is no formal appearance to contest jurisdiction outside of the EU regulations.  However, a defendant may informally appear stating that it is for the purpose of contesting jurisdiction.  If the defendant fails to challenge jurisdiction, he must engage in defending the proceedings on their merits to avoid a default judgment against him.

Entering an Appearance I

An appearance is entered in the Central Office.  Appearances in relation to persons lacking mental capacity and minors are entered in the Wards of Court Office.

An appearance to any plenary summons or summary summons is to be entered within eight days after the service of the summons, exclusive of the date of service unless the Court otherwise orders.

A defendant in proceedings commenced by special summons may enter an appearance at any time, but shall not, without leave of the Court, be entitled to be heard in such proceedings unless he has entered an appearance. The form of memorandum of appearance is prescribed.

An appearance is entered by delivering a memorandum in writing dated on its date of delivery to the Central Office containing the name of the defendant’s solicitor or stating that the defendant defends in person.  A duplicate is to be delivered which is to be marked with the official stamp, showing the date on which the appearance is entered.  This is to be returned to the person entering an appearance and dated.

A defendant appearing in person may deliver a memorandum of appearance in duplicate through post by sending the same by pre-paid registered letter with a postal order for the prescribed fee for appearance; two envelopes each sufficiently addressed, one addressed to the purchaser\’s solicitor and the other to the defendant entering an appearance.  In this case, the Central Office is to enter the appearance, post one duplicate to the claimant and the other to the defendant.

Entering an Appearance II

A defendant shall, on the day he enters an appearance, give notice of the appearance to the claimant\’s solicitor or if the claimant sues in person, to the claimant himself by serving the marked duplicate memorandum.  This may be served in the ordinary way at the address for service or by pre-paid letter directed to that address, posted on the day of entering an appearance, and is served in due course of post.  In the case of a plenary summons, the memorandum shall include a notice in writing stating whether the defendant requires a statement of claim or not. The above does not apply to a defendant entering an appearance through post under the preceding rule.

The solicitor who acts for a defendant shall state in the  memorandum his registered place of business. A defendant appearing in person shall state an address for service within the jurisdiction where summonses, notices, pleadings, warrants and other documents may be left for him. If no such address is received or if it appears  fictitious or illusory, the appearance may be set aside by the Court or the Master on the application by the claimant.

On receipt of a memorandum of appearance entered by a party, the Central Office is to enter the appearance in the appropriate Cause Book. Where two or more defendants in the same action appear by the same solicitor, the names of all defendants so appearing shall be inserted in a single memorandum.

A solicitor not entering an appearance in pursuance of his written undertaking to do so is liable to attachment.

Particular Cases

A defendant, save in actions for recovery of land, may appear at any time before judgement.  If he appears at any time after the time limited for appearance, he shall not, be entitled unless the Court otherwise orders, to any further time for delivering his defence or for any purpose than if he had appeared within the time limit for appearance.

In probate actions, a person not named may intervene and appear in the action on filing an affidavit in the Circuit Court showing his interest in the estate of the deceased.

A person served with a summons for recovery of land although not named as a defendant shall be at liberty to defend the proceedings and enter an appearance and shall give notice to the claimant\’s solicitor or the claimant if he sues in person, shall in all subsequent pleadings be named as a defendant.  Such a person would be usually be in possession of the land.  An appearance entered without leave in a proceeding for recovery of land after the time allowed is void.

A person not appearing as a defendant in a summons for recovery of land and not served may appear by leave of Court, on filing an affidavit showing that he is in possession of the land either by himself or through his tenant.  Where he appears as a landlord, he shall state this in his appearance.

Where a person not named as a defendant in a summons for recovery of land and not served has obtained leave, he shall enter an appearance, forthwith give notice of appearance to the claimant\’s solicitor (or the claimant if he sues in person) and shall be named as a party defendant to the proceedings.

A person appearing to a summons for recovery of land, other than for non-payment of rent, shall be at liberty to limit his defence to a part or an undivided share only of the property, describing that share or part with reasonable certainty in his memorandum of appearance.

A defence to a summons for recovery of land for non-payment of rent shall be presumed to be a defence in respect of all lands and premises claimed in the indorsement.  If the defendant shall desire to defend in respect of part only of the lands, on the ground that such part is not included in the tenancy sought to be evicted, he make a special application to the Court for that purpose.  It shall be made on notice grounded on an affidavit.

In probate actions, the claimant and defendant must within eight days of the entry of appearance, file an affidavit as to documents held by them or under their possession of a testamentary nature or of which they have knowledge information or belief.

Defendants Lacking Capacity

Where no appearance has been entered to a summons for a defendant who is an infant or a person of unsound mind not so formally found, the claimant shall, before taking further steps in the proceeding against the defendant, apply to the Master for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the proceeding.

No such order shall be made unless it appears on the hearing of such application that the summons was duly served and that notice of such application was, after the expiration of the time allowed for appearance and at least six days before the date of hearing, served on or left at the dwelling house of the person under whose care such defendant was at the time of serving such summons or in the case of an infant not residing or being under the care of a parent or guardian, served on or left at the dwelling house of the father or guardian, if any of such infant, unless this requirement is dispensed with by the Master on foot of an application in this regard.