Commencing Summons

Issue of Summons

There is no discretion for the District Court Clerk in the procedure for application for a summons.  Unlike the procedure under the 1851 Act, the summons is to issue as an administrative matter if the application is duly made.

A summons must state shortly and in ordinary language

• particulars of the complaint and offence alleged,
• the name of the person against whom the complaint has been made or who is alleged to have committed the offence and the address if known at which he ordinarily resides;

Two or more complaints or offences may be alleged in the one summons.

Content

The summons issued by the appropriate office shall notify the person that he or she shall be accused of that offence at a sitting of the District Court to be specified in the summons.

The summons shall require the appearance of the person to whom it is directed at the sitting of the court having jurisdiction to deal with the complaint or the offence alleged.

The court at which the person is required to appear shall where the summons is issued by a Judge, be the court within the area of jurisdiction of that Judge, or where issued by an appropriate office, be a court within the district in which the Judge has jurisdiction in relation to the offence to which the summons relates.

Offences Alleged

Where the legislation constituting an offence states the offence to be the doing or omission to do any one of a number of different acts in the alternative or states any part of the offence in the alternative, acts or omissions or other matters stated in the alternative may be stated either in the alternative or in the conjunctive in the summons alleging the offence.

In alleging the offence contrary to any statute or statutes it is sufficient to state the substance of the offence in ordinary language with such particulars as may be necessary for giving reasonable information as to the nature of the complaint.  It is not necessary to negate any exception or exemption or qualification to the operation of a statute creating the offence.

The effect of the prescribed form of summons does not render the summons invalid if it is otherwise sufficient in form and effect and clearly expresses the intentions, requisite matters.  It is sufficient if it in the case of an offence contrary to an Act, to state that the offence is contrary to the statute in such case made and provided without setting out the particular legislation.

Where the offence is created by statute, it should use the above wording or refer to the relevant statute.  Minor errors in references to statute and even reference to repealed statutes will not necessarily invalidate the summons if the substantial allegation is an offence under the correct or updated statute.

Service

When a summons is issued, a copy for service is issued for every person to whom it is directed.  Where it issues electronically, a true copy is to be served on each person to whom it is directed.

The Official Languages Act provide that a person may use either of the official languages in court documents and pleadings.  The High Court case has held that a summons may be issued in English.  See separately the section on legal proceedings and the Irish language.

In proceedings by summons in which the prosecutor is the DPP or a member of An Garda Síochána, Minister/Department or Officer of the Revenue, the document shall be served by a member of An Garda Síochána or by other person authorised by law.  A member of An Garda Síochána shall not serve a document in proceedings in which such member is the person instituting the proceedings.

The District Court Rules provide that save where the statute or Rules of Court otherwise provide, service of a document is effected by a person by delivering to that person, a copy thereof or by leaving a copy for that person at his last or usual place of abode or at his office, shop, factory, home or place of business with that person’s husband or wife as the case may be or with a child or other relative apparently residing with that person or of his spouse as the case may be or with an agent, clerk, employee, of that person or the person in charge of the house or premises where in the person usually resides, provided that the person other than the person on whom service is to be effected with whom the copy is left, is not to be under the age of 16 and is not the person instituting the proceedings.

Service on Corporate

A document may be served on a company by leaving a copy thereof or sending a copy by post to the registered office of the company.  If the company has not filed a registered office to the CRO, then the summons may be served at the CRO itself.  A document left or sent by post to the place for the time being recorded by the Registrar of Companies, is deemed to have been left or sent by post to the registered office of a company, notwithstanding that the situation of the registered office may have changed.

A local authority  a statutory body or unincorporated club or society may be served by leaving a copy of the summons with an employee of such authority or society at the principal office thereof or by sending such a copy by prepaid registered post to such principal office.

Where documents served on one or more partners at the principal place within the jurisdiction at which the business of the partnership is carried on by any person having at the time of service the control or management of the partnership business, there is deemed good service on the firm so sued whether any of the members thereof are out of the jurisdiction or not.

Service on Various Persons

Service on the father, mother or guardian of a minor or if there are none, upon the person with whom the minor resides or under whose care he is or upon his solicitor is deemed service on the minor.

Where a person on whom service is to be effected is a person of unsound mind, not formally so found i.e. not a ward of court, service on a solicitor or upon the committee or guardian ad litem or person with whom he resides or in whose care he is shall unless the court otherwise decides, be deemed good service upon the person of unsound mind.

Where a person is a prisoner or in the place of detention under an order of the court, service on the governor, director or such other person in charge of the prison or place of detention, shall unless the court otherwise decides, be deemed good service on the prisoner or person detained.

Service of a document on a solicitor acting on behalf of a person who has accepted or agreed to accept service is good service on that person.  Service may be affected by delivering to the solicitor or by leaving at his office, by sending by post, a copy of the document.

Registered Post Service

The Courts Act 1991 provides for the service of summonses, which are subject to summary trial only.  It applies in respect of summonses issued under the Petty Sessions Act upon foot of complaint to the District Judge or by the administrative procedure.  In such cases, the summons may be served on a person by sending it by a registered prepaid post to his or her last known residence or most usual place of abode or place of business in the State or by delivery by hand by a person authorised by the rules on that behalf and a copy thereof in such envelope as aforesaid.

Where the court proceeds to hear a complaint, the subject of the summons and the person claims not to have notice of the summons or the hearing, an application may be made to have the proceedings set aside.

Upon proof that the summons was placed in an envelope and that it was addressed, recorded and prepaid and sent or was delivered in accordance with the provisions above, it is deemed to be good service of the summons, unless it is proved in pursuance of an application or otherwise that the person did not receive notice of the summons and the hearing to which it relates.

Where service of a summons is undertaken by the above means, the summons shall be deemed to be served upon the person at the time when the envelope containing the summons would be delivered in the ordinary course of post.

The placing of the summons, addressing, recording, prepaying and sending the same may be proved by a statutory declaration which shall be endorsed on the original summons and e made not earlier than 10 days after the day on which the envelope is posted by the person who posted the same, exhibiting the record of posting of the envelope and stating if it is the case that the original summons was duly issued at the time of posting and that the envelope has not been returned undelivered and endorsing the time, date and place of posting on the original summons.

Witness Summons

Witness summonses may be served by registered post provided that no summons server stands appointed for the area.  There have been no summons servers appointed in many District Court areas for many years.

The procedure for service of documents in the above case is broadly similar to that above.  A letter is sent by prepaid registered post addressed to the person concerned at his last known residence or place of business in the State.  Alternatively, it may be served by personal service.

Service is deemed good unless it is proved the registered letter was not delivered.  Service cannot be effected by any regular means.  An application may be made for an order of substituted service.  Substituted service provides for an alternative means of service, which is deemed good in the circumstances.

Filing in Court

Where service is by registered post, it is deemed to be served at the time at which would be delivered in the ordinary course of post.  The addressing, registering and posting may be proved by a statutory declaration made not earlier than 10 days after posting, exhibiting the certificate of posting and confirming that it has not been returned undelivered.  The time, date and place of posting is to be endorsed on the original document.

An application for substituted service may be made ex parte for good cause shown if service cannot be affected in accordance with one of the standard means of service.

Service is presumptively valid. A statutory declaration setting out particulars of service is lodged in court. It is not necessary for the person who served the document to appear in court and give evidence of service.

Summons may be served in any part of the State.  The person served need not live in the District Court area concerned.

Save where otherwise required by statute or Rule of Court, a document must be served at least seven days or in the case of one sent by registered post, twenty-one days before the date fixed for hearing.  A statutory declaration is to be lodged at least four days before the date for hearing.

It is not to be admitted late, other than by direction of the Judge.  Where the last date is a weekend or public holiday, they may be taken as done on the next day on which the District Court Offices are open. A Judge may on application extend the time for service and lodgement of summons etc.

Subsequent Summons

A second or further summons may reissue in respect of the original complaint or application provided that the original complaint or application was made within the time prescribed where the previous summons was not served or not served on time or was struck out without hearing or determination, a new summons may issue.  This may be granted to the original complaint.

A person may not however be tried twice for the same offence.  Accordingly, if the matter has been heard on the merits and determined whether by dismissal or conviction, the same matter may not be prosecuted again.  The power to reissue applies to summonses issued in accordance with the administrative procedure introduced in 1986.

Different Garda Prosecutes

The purpose of the Garda Síochána (Amendment) Act 2022  is to amend the Garda Síochána Act 2005 to clarify that where a prosecution in a court of summary jurisdiction has been initiated by a member of An Garda Síochána, the prosecution may be conducted by a different member.

The 2005 Act provides that “…any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction[…]”. In the case of DPP (at the suit of Garda Liam Varley) -v- Ciarán Davitt [2022] IEHC 320, the High Court held that the ordinary and natural meaning of the word “and” in the phrase “institute and conduct” is that the word must be read conjunctively, and that accordingly, a Garda member has a right of audience to conduct any proceedings that he or she has instituted, but the section does not confer a right of audience on a Garda in any other proceedings.