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Commencing Proceedings

District Court Rules

Order 11

Service Out Of The Jurisdiction: S.I. No. 635 Of 2005

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No11-S.I. No. 367 Of 2009: District Court (Service In Member States Of Judicial And Extra-Judicial Documents In Civil Or Commercial Matters) Rules 2009
No11-S.I. No. 145 Of 2019: District Court (Service) (No. 2) Rules 2019

Service out of the jurisdiction

Part I – General

1. In this Order-

Definitions

“Central Authority”, when used in relation to the State, means the Master of The High Court and, when used in relation to any other State which is a party to the Hague Convention means the authority or authorities so designated by that State under Article 2 of that Convention to receive requests for the service of documents;

“document” includes an extrajudicial document;

“The Hague Convention” means the Hague Convention of 15th November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;

“jurisdiction” shall mean the jurisdiction of the State.

“Receiving Agency”, for the purposes of the Service Regulation, when used in relation to the State means any County Registrar and, when used in relation to any other State in which the Service Regulation applies, means the authority or authorities so designated by the State under Article 2 of the Service Regulation to receive requests for the service of documents;

“Service Regulation” means Council Regulation (EC) No. 1348/2000 of 29 May 2000 on the Service in the Member States of Judicial and Extrajudicial documents in civil or commercial matters (OJ L160/37 of 30 June 2000);

“Transmitting Agency”, when used in relation to the State means any County Registrar and when used in relation to any other 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;

Cases in which may be allowed

2. Service out of the jurisdiction of a civil summons or other originating document, or of notice thereof, 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 jurisdiction;

(b) in proceedings founded on a contract where such a contract is

(i) made within the jurisdiction, or

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

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

(c) in proceedings brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

(d) in proceedings founded on a tort committed within the jurisdiction;

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

(f) where any person out of the jurisdiction is a necessary or proper party to an action properly brought against another person duly served within the jurisdiction;

(g) in proceedings relating to a minor or person of unsound mind domiciled in or a citizen of Ireland;

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

How application to be made

3. An application for leave to serve a civil summons or other originating document, or notice thereof, upon a person out of the jurisdiction shall be made ex parte and shall be supported by an affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such person is or probably may be found, and whether such person is or is not a citizen of Ireland, and the grounds on which the application is being made.

No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

 

Court to fix date of hearing

4. Upon granting such an application, the Court shall fix the date of hearing of the proceedings, and in so doing shall have regard to the place or country where or within which such summons, document or notice is to be served.

 

Where person to be served

5. Whenever an order is made granting leave to serve out of the jurisdiction under the provisions of this Order,

– is a citizen of Ireland

(1) if the person to be served is a citizen of Ireland, the civil summons or other originating document (together with any other document required in any particular case to be served) shall be served upon that person;

– is not a citizen of Ireland

(2) if the person to be served is not, or is not known or believed to be, a citizen of Ireland, notice of the civil summons or other originating document, and not the summons or document itself, (together with any other document required in any particular case to be served) shall be served upon that person;

Copy of order granting leave must also be served

(3) it shall be necessary in all cases to serve a copy of such order granting leave together with the civil summons or other originating document or notice thereof referred to in paragraphs (1) and (2) hereof.

 

How service to be effected

6 (a) Whenever leave is granted under this Order to serve out of the jurisdiction a civil summons or other originating document, or notice thereof, such service shall be effected by registered post or by insured post, as appropriate, or by such other method as the Court shall determine.

(b) When service is being effected by registered post, application for an advice of delivery should be made to the postal authorities at the time of posting. Proof of such service by post shall be by the production of a statutory declaration as to service, the certificate of posting and the advice of delivery form (when returned), which documents shall be lodged with the Clerk together with the originals of the documents which were posted. Such service shall be deemed to have been effected at the time at which the envelope containing the copy civil summons or other originating document or copy of the notice thereof, and the copy of the order granting leave to serve out of the jurisdiction (and copy of any other document required to be served) would have been delivered in the ordinary course of post.

 

In cases where The Hague Convention applies

(c) In a case where the person to be served is in another State in which the Service Regulation applies, service shall be effected in accordance with the provisions of the Regulation (which may include service by post under Article 14(1) thereof in accordance with any conditions upon which the State of destination has specified under Article 14(2) and in accordance with Article 23(1) of the Regulation it will accept service of judicial documents by post). In any other case where the person to be served is in another State which is a party to the Hague Convention, service shall be effected in accordance with the provisions of the Convention (which may include service by post under paragraph (a) hereof provided the State destination has not made an objection to such service under Article 10 (a) of the Hague Convention).

PART II- SERVICE UNDER THE SERVICE REGULATION OR THE HAGUE CONVENTION

Hague Convention procedure

7. Where any document for use in civil or commercial proceedings in the District Court is to be served upon a person in any other State in which the Service Regulation applies, or in any State in which the Service Regulation does not apply but which is a party to the Hague Convention, that document shall be served, as appropriate, in accordance with the provisions of the Service Regulation or of the Hague Convention.

 

Party to lodge documents with Master

8. Any party to any proceedings in a civil or commercial matter or a solicitor acting for any such party or, as the case may be, any District Court clerk who wishes to have a document served abroad pursuant to the Service Regulation or the Hague Convention may lodge with the Transmitting Agency or the Central Authority, as appropriate;

(i) A request for the service of the document in the form specified in the Annex to the Service Regulation or in the Annex to the Hague Convention, as appropriate, and a copy thereof

(ii) Two copies of the document to be served, with an additional copy thereof for each person to be served

(iii) A translation of each document into the official languages 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 or by the Central Authority of the State addressed;

And the relevant provision of Order 11B of the Rules of the Superior Courts shall apply in every such case.

 

Certificate of Service

9. (1) A certificate of service completed and forwarded under Article 10 of the Service Regulation by the Receiving Agency or under Article 6 of The Hague Convention by the Central Authority of the State addressed or any authority which it may have designated for that purpose shall be prima facie evidence of the facts stated therein. A document purporting to be such a certificate shall, until the contrary is proved be deemed to be such a certificate.

 

to be lodged with Clerk

(2) Upon receipt of the said certificate the plaintiff (or solicitor for the plaintiff) shall lodge with the clerk the original of the document instituting the proceedings (and, where appropriate, the notice thereof) and the said certificate at least four days prior to the date fixed for the hearing.

 

Procedure on non appearance of defendant

10. (1) Where a document instituting proceedings (or notice thereof) had to be transmitted abroad for the purposes of service under the provisions of the Service Regulation or The Hague Convention and the defendant has not appeared or given notice to defend, judgment shall not be given until it is established that

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

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

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

(2) At the hearing of the proceedings the Clerk shall produce to the Court any communication or correspondence received from the defendant.

 

Judgment may be given notwithstanding

11. Notwithstanding the provisions of rule 10 (1) hereof, 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 the following conditions are fulfilled-

(a) the document or notice thereof was transmitted by one of the methods provided for in the Service Regulation or that Convention,

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

Time for appeal may be extended

12. In any case where the document instituting proceedings to which this Order relates (or notice thereof) had to be transmitted abroad for service under the provisions of the Service Regulation or The Hague Convention and judgment has been given against a defendant who has not appeared, any application by or on behalf of such defendant to extend the time for appeal from the judgment shall be by motion on notice and shall be grounded upon the affidavit of the moving party. Upon hearing the application the court may, if satisfied that-

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

(b) the defendant without any fault on his or her part, 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 defendant had disclosed a prima facie defence to the action on the merits,

extend the time for appeal from the judgment on such terms and conditions as to the Court seem just.

amendment to Order 11

S.I. No. 367 of 2009:

District Court (Service in Member States of Judicial and Extra-judicial Documents in Civil or Commercial Matters) Rules 2009

1. These rules may be cited as the District Court (Service in Member States of Judicial and Extra-Judicial Documents in civil or commercial matters) Rules 2009.

2. These rules shall come into operation on the 8th day of October 2009 and shall be construed together with the District Court Rules 1997 to 2009.

3. The District Court Rules 1997 (S.I. No. 93 of 1997) are amended:

(a) by the substitution in rule 1 of Order 11 for the definition of “Service Regulation” of the following definition:

“ “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 (O.J.L.324/79)”;

(b) by the substitution for paragraph (c) of rule 6 of Order 11 of the following:

“In a case where the person to be served is in another State in which the Service Regulation applies, service shall be effected in accordance with the provisions of the Regulation, which may include 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 in the said manner), by registered post in accordance with Article 14 of the Service Regulation or by direct service, in accordance with Article 15 of the Service Regulation. In any other case where the person to be served is in another State which is a party to the Hague Convention, service shall be effected in accordance with the provisions of the Convention (which may include service by post under paragraph(a) provided the destination State has not made an objection to such service under Article 10 (a) of the Hague Convention)”;

(…)

Amendment to Order 11

S.I. No. 145 of 2019:

District Court (Service) (No. 2) Rules 2019

1. (1) These Rules, which shall come into operation on the 15th day of April 2019, may be cited as the District Court (Service) (No 2) Rules 2019.

(2) These Rules shall be construed together with the District Court Rules 1997 (S.I. No. 93 of 1997) and all other District Court Rules.

(3) The District Court Rules as amended by these Rules may be cited as the District Court Rules 1997 to 2019.

2. The District Court Rules 1997 (S.I. No. 93 of 1997) are amended by the substitution in rule 1 of Order 11 for the definitions of “Receiving Agency” and “Transmitting Agency” of the following definitions respectively:

“ “Receiving Agency”, for the purposes of the Service Regulation, when used in relation to the State means the Combined Court Office situate at Castlebar in the County of Mayo (but if another authority, or public officer or other person is for the time being designated by the State pursuant to Article 2(2) of the Service Regulation, shall be such other authority, or public officer or other person) and, when used in relation to any other State in which the Service Regulation applies, means the authority or authorities so designated by the relevant State under Article 2(2) of the Service Regulation to receive requests for the service of documents;” and

“ “Transmitting Agency”, when used in relation to the State means Combined Court Office situate at Castlebar in the County of Mayo (but if another authority, or public officer or other person is for the time being designated by the State pursuant to Article 2(1) of the Service Regulation, shall be such other authority, or public officer or other person) and when used in relation to any other State in which the Service Regulation applies, means the public officers, authorities or other persons designated by the relevant State under Article 2(1) of the Service Regulation to transmit requests for the service of documents;”.

Order 39

General Rules

: S.I. No. 17 Of 2014

Related link
S.I. No. 17 of 2014 – provisions overview

 

1—WHERE NO PROCEDURE PROVIDED FOR

1 Where no procedure provided for

1. (1) If the procedure for the conduct of civil proceedings is not prescribed by these Rules or by an enactment, or for any other reason there is doubt about the manner or form of the procedure, the Court may determine what procedure is to be adopted and may give directions.

(2) Subject to Order 12, rule 9(4), where no form for use in the Court in respect of a step, notification or other action in a civil proceeding is for the time being prescribed, any form for the time being in use in the Circuit Court or the High Court for the corresponding step, notification or other action in civil proceedings may be used in civil proceedings in the Court with the necessary modifications.

2 — NON-COMPLIANCE WITH THESE RULES

2 Effect of non-compliance

2. (1) Subject to any provision of an enactment, a failure to comply with these Rules is an irregularity and does not render a civil proceeding or a step taken, or any document or order in the proceeding void.

(2) If there has been a failure to comply with these Rules, the Court may—

(a) set aside the proceeding, either wholly or in part;

(b) set aside any step taken in the proceeding, or any document or order therein;

(c) exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally.

3 — TIME

3 Proceedings after twelve months

3. (1) Where no step by a party requiring the filing of a document with the Clerk or notification to the Court under these Rules has been taken in a civil proceeding for twelve months or more since the last such step, a party intending the proceeding to continue must give to every other party not less than one month’s notice in writing (Form 39.01, Schedule C) of that party’s intention to proceed.

(2) A notice under sub-rule (1) must also be filed with the Clerk.

 

4 Dormant proceedings

4. (1) Where no step by a party requiring the filing of a document with the Clerk or notification to the Court under these Rules has been taken in a civil proceeding for twelve months or more since the last such step, the Court may cause the civil proceeding to be listed before the Court to explain the failure to proceed.

(2) The Clerk must notify the parties of any listing in accordance with sub-rule (1). The notification may be in Form 39.02, Schedule C.

(3) A party may file a written explanation of the failure to proceed with the Clerk and if the Court is satisfied that there were sufficient reasons for the failure to proceed, may direct that the civil proceeding be removed from the list to explain the failure to proceed and direct that the Clerk notify the parties accordingly.

(4) On the listing of a civil proceeding in accordance with sub-rule (1), the Court may make such orders and give such directions as are in the opinion of the Court likely to ensure the civil proceedings are prepared for trial in a manner which is just, expeditious and likely to minimise the costs of those proceedings.

 

5 Enlargement or abridgement of time

5. (1) Subject to sub-rules (3) and (4), the Court may, on any terms it considers reasonable, enlarge or abridge any of the times fixed by these Rules, or by a prior order of the Court, for taking any step or doing any act in any civil proceedings.

(2) Subject to sub-rules (3) and (4), the Court may also, on any terms as to costs or otherwise as it considers just, declare any step taken or act done in any civil proceedings to be sufficient, even though not taken or done within the time or in the manner prescribed by these Rules.

(3) Sub-rules (1) and (2) do not apply to any period of time fixed by:

(a) an Act of the Oireachtas, or

(b) a statute which was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and which continued in force by virtue of Article 50 of the Constitution.

(4) Without limiting the generality of sub-rule (3), any application to state a case under section 2 of the Summary Jurisdiction Act 1857 must be made within the time prescribed by that Act.

(5) Unless otherwise directed or permitted by the Court, an application to enlarge or abridge time must be made by motion on notice to the other party or parties who would be affected by the enlargement or abridgement of time.

Beginning Civil Proceedings In The Court

: S.I. No. 17 Of 2014

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No40-S.I. No. 513 Of 2016: District Court (Issue Of Civil Proceedings) Rules 2016

Related link
S.I. No. 17 of 2014 – provisions overview

 

1—GENERAL

1 Definitions

1. In this Order – “the 1924 Act” means The Courts of Justice Act 1924 (No. 10 of 1924); “the 1991 Act” means the Courts Act 1991 (No. 20 of 1991).

 

2 Claim not to be divided

2. (1) A claimant must not divide a claim for the purpose of making the claim the subject of two or more claim notices.

(2) A claimant who has a claim for more than the amount for which a claim may be made in the Court may abandon the excess by so stating in the claim notice.

 

3 Names, addresses and representation of parties

3. (1) A claim notice must—

(a) state the full name and address of the claimant and an address for service of documents on the claimant; and

(b) if the claimant sues in person, state an address for service of documents on the claimant; and

(c) if the claimant sues or the respondent is sued in a representative capacity, state the capacity in which the claimant sues or the respondent is sued in a representative capacity; and

(d) state the name and address of the respondent; and

(e) if the claimant sues by a solicitor, state the name or firm and business address of the solicitor and also, if the solicitor is the agent of another, the name or firm and business address of the principal.

(2) Where a solicitor’s name is given on a claim notice as solicitor for a claimant—

(a) the solicitor must, on request in writing by a respondent, confirm in writing whether the claim notice was filed by or with the authority of the solicitor on behalf of that claimant; and

(b) if the solicitor confirms in writing that the claim notice was not filed by or with the authority of that solicitor, the Court must stay the civil proceedings and no further step may be taken in the civil proceedings without the permission of the Court.

4 Commencement of civil proceedings

4. (1) Subject to the provisions of these Rules which apply to particular categories of claims or cases, a civil proceeding must be commenced by the filing for issue and service of a claim notice.

(2) Save where otherwise provided by these Rules or by an Act and subject to Order 41B and the Conventions to which it relates, a claim notice must be filed with and issued by the Clerk for the Court area:

(a) in which the respondent or one of the respondents ordinarily resides or carries on any profession, business or occupation,

or at the election of the claimant,

(b) in proceedings founded on contract, (except proceedings arising from an agreement under the Consumer Credit Act 1995 or the European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. 281 of 2010)) in which the contract is alleged to have been made, or

(c) in proceedings founded on tort, in which the tort is alleged to have been committed, or

(d) in ejectment proceedings, in which the lands the subject of the proceedings are situated.

(3) Filing must be effected by filing with the Clerk assigned to the Court area referred to in sub-rule (2), in person or by post.

(4) Unless otherwise provided by law, civil proceedings in the Court must be heard and determined at a sitting of the Court for the transaction of civil business for the Court area in which the civil proceeding was brought.

(5) A claim notice which has been issued by a Clerk is deemed to have been issued on the date on which it was filed with the Clerk for issue.

 

5 Form of claim notice

5. (1) Unless sub-rule (2) applies, a claim notice must be in Form 40.01, Schedule C, or in Form 40.02, Schedule C in a debt claim.

(2) If a claim notice is to be served out of the State, the claim notice must be in the form required by Order 41A (service out of the State with the permission of the Court) or, as the case may be, Order 41B (service out of the State without the permission of the Court).

(3) A claim notice must contain a statement of claim.

(4) A statement of claim must—

(a) contain, in a summary form, a statement of all material facts on which the claimant relies, but not evidence by which those facts are to be proved;

(b) contain the necessary particulars of every fact;

(c) if the claim arises by or under any enactment, identify the specific provision of the enactment that is relied on;

(d) state specifically the amount or other relief or remedy sought; (e) state the place where and the date when the claim arose.

(5) A statement of claim in a debt claim must state that the claim is for debt or liquidated damages, must specify the amount claimed by way of debt or liquidated damages and must include particulars of the claimant’s demand for payment.

(6) A statement of claim must be divided into paragraphs numbered consecutively, and each fact or matter stated, so far as practicable, must be contained in a separate paragraph.

(7) Where the claim is founded on any written document, the statement of claim must state the date of the document and the parties to the document and:

(a) if the claim is for the payment of money, the amount claimed, or

(b) if the claim is for breach of contract, the alleged breach or breaches of the contract.

(8) A statement of claim must contain a list of all correspondence and other documents on which the claimant will rely at the trial including the date if any and a brief description of each document.

(9) Any claim notice in which damages are claimed is assumed to include a claim for interest from the date of judgment, where permitted by law, and for the costs of the civil proceedings, whether or not expressly claimed.

(10) Where a claimant alleges that he or she was unable, at the time at which a claim notice was issued, to include in the claim notice any of the information required by this rule to be specified in the claim notice, he or she must include in the claim notice a statement of the reasons why it is claimed that any such information could not be provided at the time of issue of the claim notice. The claimant must, when the claim notice is served or as soon as may be thereafter (whether by amendment or otherwise) provide such of the information required by this rule as was not included in the claim notice.

 

6 Costs to be specified

6. (1) In a debt claim, the claim notice must be indorsed with a statement as follows—

“If you pay the amount of €…… and costs of €……. to the claimant or the claimant’s solicitor within ten days and without filing and serving an appearance and defence you may avoid further costs.”.

(2) The amount of costs in the indorsement must be the appropriate amount set out in the Schedule of Costs.

(3) If a claim notice is indorsed in accordance with sub-rule (1), and the respondent pays the amounts claimed within the time limited for filing and serving an appearance and defence, then the civil proceeding is concluded.

(4) The claimant must notify the Clerk in writing when civil proceedings are concluded in accordance with sub-rule (3).

 

7 Consent proceedings

7. (1) Where civil proceedings of the kind mentioned in paragraph A of section 77 of the 1924 Act are brought before the District Court and the amount claimed in such proceedings is in excess of €15,000 and, pursuant to the proviso (inserted by section 4(c) of the 1991 Act) to paragraph A of section 77, the necessary parties to the proceedings sign a form of consent either before or at any time during the hearing, the consent must be in the Form 40.03, Schedule C.

(2) When completed, the consent must be attached to and filed together with the original claim notice or other originating document or, as appropriate, must be produced to the Court during the hearing.

(3) Every consent so filed or produced must be retained by the Clerk with the original claim notice or other originating document and must be noted on the court record and on any order issued in relation to the civil proceedings.

(4) Costs, where allowed in any such civil proceedings, must be in accordance with the relevant provisions of the Schedule of Costs.

 

8 Proceedings transferred from the High Court or Circuit Court

8. (1) Where civil proceedings are remitted or transferred to the District Court by the High Court under section 25 of the 1924 Act or by the Circuit Court under section 15 of the 1991 Act, the claimant must, within 14 days from the date of perfection of the order for remittal or transfer, file with the Clerk a certified copy of the order and the summons, civil bill or other originating document (or a copy thereof) and copies of all documents already delivered and orders made in the proceedings.

(2) Where the claimant omits or refuses to file the documents within the 14 day period mentioned in sub-rule (1), the respondent must do so as soon as may be after the expiration of the 14 day period.

(3) The party filing the documents must give notice to every other party to the proceedings of such filing.

(4) After filing of the order and documents, the civil proceedings must continue as if they had been commenced in the Court and any respondent who has not served a defence and filed an appearance must do so within the 21 days of service of the notice referred to in sub-rule (3).

(5) The civil proceedings must be heard and determined by the Court as if they had originally been commenced in the Court.

(6) A note of the remittal or transfer must be entered on the court record and on any order issued in relation to the proceedings.

(7) Costs, where allowed in any such civil proceedings, must be in accordance with the provisions of the Schedule of Costs.

 

9 Proceedings under section 74 of the Consumer Protection Act 2007

9. (1) Any claim by a consumer for damages under section 74 of the Consumer Protection Act 2007 (No. 19 of 2007) must be commenced by the issue and service in accordance with this Order of a claim notice, entitled in the matter of section 74 of the Consumer Protection Act 2007 and otherwise in the Form 40.01, Schedule C with such modifications as are appropriate.

(2) Any consent under section 74(4) of the Consumer Protection Act 2007 must be in the Form 40.03, Schedule C but, instead of reciting that it is given under section 77A of The Courts of Justice Act 1924, must recite that it is given under section 74(4) of the Consumer Protection Act 2007, and must be lodged with the Clerk either before or at any time during the hearing.

 

10 Duration

10. (1) A claim notice is valid for service for one year after the day it is filed.

(2) If a claim notice has not been served on a respondent or if a witness summons has not been served on a witness, the Court may from time to time extend the validity of the claim notice or witness summons for such period from the day of the order as the Court directs, not being more than six months from that day.

(3) An order may be made under sub-rule (2) before or after expiry of the claim notice or witness summons.

(4) The claimant may apply under sub-rule (2) without notice to the respondent, but if the Court considers that the respondent ought to be heard, the Court may adjourn the further hearing and direct the claimant to give written notice to the respondent of the place and time to which the application was adjourned.

Amendment to Order 40

S.I. No. 513 of 2016:

District Court (Issue of Civil Proceedings) Rules 2016

1. (1) These Rules, which shall come into operation on the 8th day of November 2016, may be cited as the District Court (Issue of civil proceedings) Rules 2016.

(2) These Rules shall be construed together with the District Court Rules 1997 (S.I. No. 93 of 1997) and all other District Court Rules.

(3) The District Court Rules as amended by these Rules may be cited as the District Court Rules 1997 to 2016.

2. The District Court Rules 1997 (S.I. No. 93 of 1997) are amended:

(i) by the substitution for sub-rule (5) of rule 4 of Order 40 of the following sub-rule:

“(5) Except in a case to which section 7(6)(a)(ii) of the Courts Act 1964 applies, a claim notice which has been issued by a Clerk is deemed to have been issued on the date on which it was filed with the Clerk for issue.”

(…)

Procedure In Statutory Applications By

Notice Of Application Procedure

: S.I. No. 17 Of 2014

Related link
S.I. No. 17 of 2014 – provisions overview

1 Definitions

1. (1) In this Order—

“relevant authority” means any agency, board, authority, commission, council, ombudsman, tribunal, or other body (not including a company formed under the Companies Acts) established by or under an enactment, which is authorised by an enactment:

(a) to exercise powers under an enactment to determine or decide, any complaint or issue, or

(b) to issue any notice or order addressed to a person requiring the taking or ceasing of any action,

and includes, where the context so requires, any committee, officer or member of the staff of such a body who has been authorised by an enactment or by such a body to exercise those powers;

“relevant application” means any of the following applications–

(a) an application to the Court under an enactment by a person authorised by law to apply to the Court for an order directing, requiring or compelling a person to take any step or do any thing (including, without limitation, to provide information or to produce a document or thing) or prohibiting or restraining a person from, or directing a person to cease or refrain from, taking a step or doing a thing (in the remainder of this Order, referred to as a “direction application”),

(b) an application to the Court by a person authorised by law to apply to the Court, for an order of the Court directing, requiring or compelling a person to perform, comply with, carry out or implement, or for the enforcement of, a decision, determination, notice or order of a relevant authority (in the remainder of this Order, referred to as an “enforcement application”) but does not include:

(i) any application for the issue by the Court or the Clerk of any order for execution of any such decision, determination, recommendation, or settlement which an enactment provides may be enforced or executed as, or in the like manner to, a judgment of the Court; or

(ii) any application for the issue of a summons; or

(iii) any claim for damages (which must be commenced by claim notice);

(c) except where a particular procedure for such an application is specified in another Order of these Rules, an application to the Court under an enactment by a person authorised by that enactment to apply to the Court, for any licence, certificate, authority or permission or, as the case may be, for the restoration of, or other relief from disqualification from holding or restriction on holding any licence, certificate, authority or permission (in the remainder of this Order, referred to as a “licence application”),

(d) except where a particular procedure for such an application is specified in another Order of these Rules, any other application to the Court for relief under an enactment (other than relief by way of damages, liquidated or unliquidated) which is, required, authorised or permitted by these Rules to be brought or made in accordance with this Order.

(2) Where an enactment provides for or permits a relevant application to be made to the Court or to a Judge and no other provision is made for the applicable procedure either by the enactment concerned or by these Rules, the procedure set out in the following rules applies.

(3) Sub-rule (2) is subject to any requirement of the relevant enactment.

 

2 Venue for relevant application

2. (1) A relevant application must be brought:

(a) in the case of a direction application or an enforcement application, in the Court area where the person or one of the persons against whom an order or other relief is sought resides or carries on any trade, profession or business;

(b) in the case of a licence application:

(i) in the Court area where the applicant intends, in reliance on the licence, certificate, authority or permission sought (or, as the case may be, sought to be restored) to carry on any trade, profession or business; or

(ii) where the licence, certificate, authority or permission is not sought for the purpose of a trade, profession or business, in the Court area where the activity permitted by the licence, certificate, authority or permission is intended to be conducted; or

(iii) where the application is for the restoration of, or other relief from disqualification from holding, any licence, certificate, authority or permission, in the Court area where the disqualification or restriction concerned was imposed; or otherwise

(iv) in the Court area where the applicant resides.

(2) Sub-rule (1) is subject to any provision or requirement to a different effect in the relevant enactment.

 

3 Commencement of relevant application

3. (1) The relevant application must be made by notice of application (in the remainder of this Order, referred to as “the notice of application”).

(2) The notice of application must be in Form No. 40C.01, Schedule C, modified as appropriate to the case, and must include particulars of the relief sought appropriate to the case.

(3) The notice of application must be entitled in the matter of the provision of the enactment under which the application is made.

(4) Where any order, direction or other relief is sought against any person, the notice of application must also be entitled as between the applicant as applicant and such person as respondent, and must contain the names and addresses of the applicant and of each respondent.

(5) Where the application is authorised by an enactment to be made ex parte, or where no order, direction or other relief is sought as against any person or persons, the notice of application must be entitled in the matter of the provision of the enactment pursuant to which the application is made and on the application of the applicant, and must contain the name and address of the applicant.

(6) The notice of application must specify the particular relief sought against each respondent and the particular provision of the relevant enactment authorising the granting of each such relief.

 

4 Documents to be attached to the notice of application

4. Where the relevant application is an enforcement application, a true copy of the decision, determination, notice or order concerned, if in writing, must be attached to the original notice of application and to any copy of the notice of application served on any respondent.

 

5 Evidence required at hearing in every case

5. (1) The applicant must adduce at the hearing of every relevant application:

(a) evidence of the standing and authority of the applicant to make the application under the relevant provision of the enactment;

(b) if the applicant is acting in a representative capacity, or relief is sought against any respondent in a representative capacity, evidence of the capacity of the applicant or, as the case may be, the respondent;

(c) evidence of the facts or circumstances which it is alleged authorise or entitle the applicant to make, or justify the applicant in making, the application and which support the granting of the relief sought; and

(d) all correspondence and documents passing between the applicant and each respondent (if any), or otherwise issuing from any of them, relevant to the matter or matters in respect of which relief is sought, but not including any correspondence or document which, by law, a person is obliged or entitled to refuse to produce.

(2) Sub-rule (1) does not operate to limit the evidence which the applicant is required to adduce at the hearing of the relevant application.

 

6 Period of notice

6. (1) Not less than 21 days’ notice of an application by notice of application must be given to the Court.

(2) Each respondent must be served, in accordance with Order 41, with a copy of the notice of application (and copies of any documents required to be attached) not later than seven days before the return date.

(3) A statutory declaration as to the service of the notice of application on each respondent must be lodged with the Clerk not later than seven days before the return date.

(4) Where the relevant enactment requires prior publication of notice of the intended application, a print of the newspaper or other publication in which notice was published must also be lodged with the Clerk within the time specified in sub-rule (3).

(5) Sub-rules (1) and (2) are subject to any provision or requirement to a different effect in the relevant enactment.

 

7 Orders which may be made by Court on return date

7. (1) On the return date, the Court may:

(a) hear the application; or

(b) give directions and make orders for the conduct of the proceedings as appear convenient for determining the application in a manner which is just, expeditious and likely to minimise the costs of those proceedings.

(2) Directions and orders under sub-rule (1)(b) may, where appropriate, include:

(a) directions that notice of the application be served on any other person, including mode of service and the time allowed for such service;

(b) directions that the parties furnish written submissions to the Court and deliver those written submissions to one another;

(c) an order directing the delivery and filing of any affidavit.

 

8 Application to vary or discharge an order

8. (1) Where the relevant enactment permits any subsequent application to vary or discharge an order made by the Court on the relevant application, the application to vary or discharge the order must be made by notice of motion to vary or discharge (as the case may be).

(2) A notice of motion to vary or discharge must be in Form No. 44.02, Schedule C, modified as appropriate to the case. The notice must include particulars of the relief sought appropriate to the case.

(3) Not less than 21 days’ notice of an application to vary or discharge must be given to the Court.

(4) The applicant for the original order and every respondent served with that application must be served, in accordance with Order 41, with a copy of the notice of motion to vary or discharge not later than seven days before the return date.

(5) A statutory declaration as to the service of the notice of motion on each respondent must be lodged with the Clerk not later than seven days before the return date.

(6) Sub-rules (3), (4) and (5) are subject to any provision or requirement to a different effect in the relevant enactment.

 

Procedure In Statutory Appeals By Notice Of Appeal

To The Court : S.I. No. 17 Of 2014

Related link
S.I. No. 17 of 2014 – provisions overview

 

1 — DEFINITIONS

 

1 Definitions

1. (1) In this Order—

“appellant” means the person making an appeal to the Court;

“respondent” means the person who gave the notice, decision or direction from which the appeal is brought.

(2) Where an enactment provides for or permits an appeal to be made to the Court or to a Judge from any notice given or served or from any decision or direction given in any matter and no other provision is made for the applicable procedure either by the enactment concerned or by these Rules, the procedure for the appeal (in the remainder of this Order, referred to as the “relevant appeal”) set out in the following rules applies.

(3) Sub-rule (2) is subject to any requirement of the relevant enactment.

2 — GENERAL

2 Venue for appeal

2. (1) A relevant appeal must be brought:

(a) in the Court area where the notice appealed from was given or served or the decision or direction appealed from was given; or

(b) in the Court area where the appellant resides.

(2) Sub-rule (1) is subject to any provision or requirement to a different effect in the relevant enactment.

 

3 Procedure by notice of appeal

3. (1) The relevant appeal must be commenced by a notice of appeal (in the remainder of this Order, referred to as “the notice of appeal”) in the Form 40D.01 Schedule C, with such modifications as are appropriate.

(2) A copy of the notice of appeal must be served on the respondent and on every other person directly affected by the appeal. Unless otherwise provided, the notice may be served in accordance with the provisions of Order 41—

—within 14 days from the day on which the notice appealed from was served or the decision or direction first came to the knowledge of the appellant, and

—at least 14 days before the return date.

(3) The appellant must lodge with the Clerk a statutory declaration of service on the respondent and on every other person directly affected by the appeal at least seven days before the return date.

 

4 Copy documents to be attached

4. The appellant must also attach to the notice of appeal and to any copy of the notice of appeal served a copy of the notice, decision or direction appealed from and, where appropriate, copies of any other documents or exhibits used in relation to the notice, decision or direction.

 

5 Court may direct service of the notice of appeal

5. The Court hearing the appeal may, if it considers it proper, direct that the notice of appeal be served on any person not already served.

3 — PARTICULAR APPEALS UNDER STATUTE

6 Safety Health and Welfare at Work Act 2005

6. (1) In this rule – the “Act of 2005” means the Safety Health and Welfare at Work Act 2005 (No. 10 of 2005).

(2) Where an appeal has been brought in the manner prescribed under—

(a) section 66(7) of the Act of 2005 against an improvement notice,

(b) section 67(7) of the Act of 2005 against a prohibition notice, or

(c) section 72(3) of the Act of 2005 against an information notice,

the applicant must ensure that a copy of any order of the Court made on the appeal is served promptly on the respondent and on any other person directly affected by the order.

(3) Where an application has been brought in the manner prescribed under section 67(6) of the Act of 2005 for the suspension of a prohibition notice, the applicant must ensure that a copy of any order of the Court made on the application directing that the operation of a prohibition notice be suspended is served promptly on the respondent and on any other person directly affected by the order.

 

7 Mental Health Act 2001

7. (1) In this rule-

the “Act” means the Mental Health Act 2001 (No. 25 of 2001);

the expressions “approved centre”, “centre”, “Commission”, and “registered proprietor” each has the meaning given to it by the Act.

(2) An appeal under section 65(1) of the Act by:

(a) a registered proprietor or, as the case may be,

(b) a person intending to be the registered proprietor of an approved centre, against a decision of the Commission:

(i) to refuse to register the centre;

(ii) to remove the centre from the register, or

(iii) to attach a condition, or to amend or revoke a condition attached, to the registration of the centre

may be made to the Judge assigned to the Court district in which the centre concerned is situated, at any sitting of the Court for that Court district.

(3) The notice of appeal, in the Form 40D.02, Schedule C, must be served on the Commission by the appellant not later than seven days before the return date.

(4) A copy of the decision of the Commission appealed from must be annexed to the notice of appeal.

(5) A statutory declaration of service of the notice of appeal must be filed with the Clerk at least two days before the return date.

 

8 Firearms Act 1925 (as amended by the Criminal Justice Act 2006)

8. (1) In this rule,

the “Act” means the Firearms Act 1925;

the expression “issuing person” has the meaning given to it by the Act.

(2) Despite rule 2(2), an appeal under section 15A of the Act (inserted by section 43 of the Criminal Justice Act 2006) by a person aggrieved by a decision referred to in section 15A(1) of the Act by an issuing person may be made within the period specified in section 15A(2) of the Act.

(3) An appeal under section 15A of the Act must be made by notice of appeal in the Form 40D.01, Schedule C, with such modifications as are necessary.

(4) The notice of appeal must be issued by the Clerk and served in accordance with the provisions of Order 41 on the issuing person at least 14 days before the return date.

* Note

Provisions for appeals to the District Court under the:

— Betting Act 1931 are referred to in Order 64 of these Rules.

— Gaming and Lotteries Act 1956 are contained in Order 66 of these Rules.

— Street and House to House Collections Act 1941B are contained in Order 88 of these Rules.

— Wildlife Act 1976 are contained in Order 89 of these Rules.

— Fire Services Act 1981 are contained in Order 92 of these Rules.

— Housing (Private Rented Dwellings) Act 1982 are contained in Order 93 of these Rules.

— Road Traffic Acts 1961 to 1987 are contained in Order 97 of these Rules.

— Safety Health and Welfare at Work Act 1989 are prescribed in regulations entitled District Court (Safety, Health and Welfare at Work Act 1989) Regulations 1989 (S.I. No. 275 of 1989).

Proceedings Begun By The Issue Of A Summons

In Matters Other Than Criminal Matters* : S.I. No. 17 Of 2014

Related link
S.I. No. 17 of 2014 – provisions overview

1 Application for summons

1. (1) In any case where these Rules provide that an application to the Court is to be made or civil proceedings in the Court are to be begun by a civil summons, then the applicant, moving party or claimant may apply to the Clerk for the Court area in which the application is to be made or the proceedings are to be begun for the issue of a civil summons for service.

(2) When it is intended to begin proceedings (which are not proceedings to which the Courts (No. 3) Act 1986 relates) in the District Court against a person, and the issue of a summons requiring the appearance of that person before the Court is necessary, on a matter or issue which the Court has jurisdiction to hear and determine by summons, an application to sign and issue the summons may, unless otherwise provided by an enactment or these Rules, be made to the Clerk for the Court area wherein that person ordinarily resides or carries on any profession, business or occupation.

 

2 Form, signing and issue of summons

2. (1) The applicant for the issue of the summons must lodge with the Clerk a duly completed summons, which may be in the Form 40E.01, Schedule C (with such modifications as are appropriate to the case), together with a copy or copies for service.

(2) The summons must include particulars of the relief sought appropriate to the case.

(3) The Clerk must unless otherwise provided by an enactment or these Rules, list the matter or issue for hearing at a sitting of the Court, record the place, date and time of hearing on the summons and copies and, having signed and dated the summons and copies, issue them to the applicant for service.

 

3 Court to which the summons is returnable

3. Every summons issued under this Order must require the appearance of each person to whom it is directed at a sitting of the Court:

(a) having jurisdiction to deal with the matter or issue set out in the summons;

(b) for the Court area to which the Clerk issuing the summons is assigned;

(c) within the Court district in which a Judge of the District Court has jurisdiction in relation to the matter or issue.

 

4 Service and filing

4. Save where otherwise provided, the provisions of Order 41 (Service of Documents) apply to summonses signed and issued in proceedings to which this Order relates.

 

5 Order 15 (in part) to apply

5. The provisions of rules 4, 5, 6, 7, 8 and 9 (with any necessary modifications) of Order 15 apply to summonses signed and issued in proceedings to which this Order relates.

*Note: Provisions relating to the issue of summonses in respect of offences are contained in Order 15 of these Rules.

Order 41

Service Of Documents In Civil Proceedings

– Service Of Documents In The State : S.I. No. 17 Of 2014

Related link
S.I. No. 17 of 2014 – provisions overview

1 Definitions

1. In this Order – a “document” means a “District Court document” within the meaning of section 7(1) of the Courts Act 1964.

 

2 Persons authorised to serve documents

2. (1) In civil proceedings, a document may be served by:

(a) a summons-server standing assigned to the Court area concerned; or

(b) any person authorised to do so by the party or person on whose behalf the document is served,

unless these Rules or statute otherwise provide or unless the Court otherwise directs.

(2) The fee to be paid to a summons-server for the service of any document is the sum as determined by the County Registrar from time to time, payable on proof of each separate service effected. Where the fee to be paid for the service of any document is for the time being prescribed by rule of court or otherwise, the fee becomes payable on proof of each separate service effected.

 

3 Mode of service — registered post

3. (1) A document in proceedings to which section 7(1) of the Courts Act 1964 relates may, subject to and in accordance with the provisions of, section 7 of the Courts Act 1964, be served by sending a copy of the document by registered prepaid post in an envelope addressed to the person to be served at his or her last known residence or place of business in the State.

(2) The document may be posted by the person on whose behalf it purports to be issued or by a person authorised by him in that behalf.

 

4 Mode of service — personal service

4. Personal service of a document in accordance with the provisions of section 7 of the Courts Act 1964 must be effected on a person in the State:

(a) by delivering a copy of the document to the person to be served, or

(b) where it appears by evidence that the person to be served is personally within the jurisdiction and that due and reasonable diligence has been exercised in endeavouring to effect personal service on him or her, by leaving a copy of the document for the person to be served at his or her last or most usual place of residence, or at his or her office, shop, factory, home or place of business with:

(i) the husband or wife of the person to be served; or

(ii) the civil partner of the person to be served; or

(iii) a child or other relative of the person to be served, who apparently resides with the person to be served; or

(iv) a child or other relative of the husband, wife or civil partner of the person to be served, who apparently resides with the person to be served; or

(v) any agent or employee of the person to be served; or

(vi) the person in charge of the house or premises where the person to be served usually resides,

provided that the person with whom the copy is left:

(I) is not under the age of 16 years, and

(II) is not himself or herself the person beginning the civil proceedings.

 

5 Service on a company

5. (1) A document may be served on a company by leaving a copy of the document at or sending a copy of the document by post to the registered office of the company or, if the company has not given notice to the Registrar of Companies of the situation of its registered office, by registering the document at the office of the Registrar of Companies.

(2) For the purposes of this rule, any document left at or sent by post to the place for the time being recorded by the Registrar of Companies as the situation of the registered office of a company must be deemed to have been left at or sent by post to the registered office of the company notwithstanding that the situation of its registered office may have been changed.

 

6 Service on a local authority or an unincorporated body

6. A document may be served on a local authority, statutory board or body, or an unincorporated society or club by leaving a copy of the document with any employee of the authority, board, body, society or club at its principal office or by sending a copy of the document by prepaid registered post to its principal office.

 

7 Service on a partnership

7. (1) Where persons are sued as partners in the name of their firm, a copy of the document must be served either:

(a) on any one or more of the partners; or

(b) at the principal place within the State at which the business of the partnership is carried on, on any person having at the time of service the control or management of the partnership business there;

and such service must be deemed good service on the firm sued, whether any of the members of the partnership are outside the State or not.

(2) The permission of the Court is not necessary for the issue and service on a partnership of a claim notice or other originating document where one or more of the partners is in the State and one or more outside the State, provided that in the case of a partnership which has been dissolved to the knowledge of the claimant before the civil proceedings are begun, the claim notice or other originating document must be served on every person within the State sought to be made liable.

 

8 Service on a child

8. Where the person to be served is a child, a document is effectively served if served:

(a) on the father, mother or other guardian having actual custody of the child or with whom the child resides; or

(b) if the child has no father, mother or other guardian, on the person with whom the child resides or under whose care the child is; or

(c) on the child’s solicitor unless the Court otherwise decides.

 

9 Service on a ward of court or a person of unsound mind

9. Where the person to be served is a ward of court or a person of unsound mind not so found by inquisition, a document is effectively served if served:

(a) on the person’s solicitor; or

(b) on the committee of the ward of court; or

(c) on the guardian ad litem of the person to be served; or

(d) on the person with whom the person of unsound mind resides or under whose care he or she is,

unless the Court otherwise decides.

 

10 Service on a prisoner

10. Where the person to be served is a prisoner or a person detained in a place of detention under the order of any court or tribunal, service on the governor, director or other person in charge of the prison or place of detention is, unless the Court otherwise decides, good service on the prisoner or person detained.

 

11 Acceptance of service

11. (1) Service of a document must be deemed good service if the Court is satisfied that a solicitor acting on behalf of the person to be served has accepted service of the document.

(2) Service on the solicitor for a party may be effected:

(a) by delivering a copy of the document to the solicitor; or

(b) by leaving a copy of the document at the solicitor’s office; or

(c) by sending a copy of the document by post in an envelope to, the solicitor; or

(d) by sending a copy of the document to a document exchange service designated by that solicitor in accordance with sub-rule (3) through which that solicitor accepts documents.

(3) Delivery or service through a document exchange service under sub-rule (2):

(a) is effective provided that the solicitor concerned has confirmed in writing to the party serving the document or copy (or that party’s solicitor) that he or she will accept service of documents in the civil proceedings through the document exchange service designated by him or her;

(b) ceases to be effective where, prior to delivery or service, the solicitor concerned has in writing revoked such confirmation.

(4) Any statutory declaration verifying delivery or service through a document exchange service must exhibit the written confirmation referred to in sub-rule (3) and contain a statement that the confirmation had not, at the time of the delivery or service concerned, been revoked in accordance with this rule.

 

12 Substituted service

12. (1) Where the Court is satisfied that, for good cause shown, service of a document cannot be effected in a manner or in any manner prescribed by these Rules, the Court may make an order:

(a) for substituted or other service; or

(b) for the substitution for service of notice by advertisement or otherwise.

(2) Particulars of any order for substituted or other service must be endorsed on the original and on each copy of the document to be served.

(3) An application for an order for substituted or other service may be made ex parte.

(4) Where the Court is satisfied that any particular mode of service prescribed is at any time not then available, the Court may by order in writing direct that the service of documents or of any particular class of documents be effected in such other manner as it thinks proper.

(5) A direction under sub-rule (4) must be retained by the Clerk and remains in force until the mode of service concerned is again available or until the direction is revoked by the Court.

 

13 Service deemed good

13. The Court may, if it considers it just to do so, deem the service of any document actually effected in any civil proceedings to be good and effected service, even though the service was not effected in a manner prescribed by these Rules.

 

14 Proof of service

14. (1) A person who serves a document may prove the service:

(a) by evidence given orally before the Court; or

(b) by statutory declaration as to service made in accordance with the Statutory Declarations Act 1938.

(2) A statutory declaration as to service must be in the Form 41.01, 41.02 or 41.03, Schedule C, as the case may be.

(3) When service of a document on a person has been effected by registered prepaid post, a statutory declaration of service, which must be in the Form 41.01, Schedule C must be made not earlier than ten days after the day on which the envelope containing the copy of the document for service was posted.

(4) A statutory declaration of service by registered post must:

(a) be made by the person who posted the envelope; and

(b) exhibit the certificate of posting; and

(c) state, where appropriate, that the original document was duly stamped at the time of posting, and

(d) state that the envelope has not been returned undelivered to the sender.

 

15 Person proving service by statutory declaration need not attend Court

15. Where a statutory declaration is made, and filed with the Clerk under rule 19:

(a) the statutory declaration is prima facie evidence of the mode, time and place of service as set out in the statutory declaration; and

(b) it is not necessary for the person who effected service to attend in person at the Court to prove service on oral evidence,

but the Court may, if it considers it necessary, require the person who effected service to attend before it and give evidence concerning the service notwithstanding the making of a statutory declaration.

 

16 Deemed time of service

16. Where service of a document is effected by registered prepaid post or by ordinary prepaid post, the document must be deemed to be served on the person to whom it was directed at the time at which the envelope containing the copy of the document for service would be delivered in the ordinary course of post.

 

17 Service invalid unless document stamped, where required

17. Where a document is required by law to be stamped (or payment of a Court fee on the document otherwise recorded), service of the document has no effect or validity unless, at the time of service, the original document was so stamped (or payment of the appropriate Court fee on the document otherwise recorded).

 

18 Time for service before hearing

18. Save where otherwise provided by another enactment or by these Rules, a document which must be served before a hearing in the Court must be served at least seven days or, in the case of service by registered prepaid post, at least 21 days, before the date fixed for the hearing concerned.

 

19 Time for filing before hearing

19. Subject to any order or direction of the Court, a document which must be filed with the Clerk before a hearing in the Court, including any statutory declaration of service, must be filed at least four days or, in the case of filing by prepaid post, at least seven days, before the date fixed for the hearing concerned.

 

20 Service under Civil Liability and Courts Act 2004

20. The delivery or service of any notice for the purposes of section 8 or section 17 of the Civil Liability and Courts Act 2004 must be in the manner prescribed in section 4 of that Act.

21 Electronic service in licensing matters [1]

21. (1) This rule applies to licensing matters within the original jurisdiction of the Court.

(2) In this rule:

“electronic system” means an electronic system for the time being made available by the Courts Service which enables permitted users, officers of the Court and members of the staff of the Courts Service to transmit and receive documents and information concerning applications before the Court;

“permitted user” means a person who is for the time being permitted to use the electronic system;

“terms and conditions of use of the electronic system” means any terms and conditions of use of the electronic system for the time being published, on a website maintained by it or otherwise, by the Courts Service or notified by the Courts Service to permitted users.

(3) Notwithstanding any other provision of these Rules, and subject to compliance by the permitted user with the terms and conditions of use of the electronic system, a party to or person interested in any licensing matter before the Court or intended to be brought before the Court (or a solicitor acting for such party or person) may be designated as a permitted user and when so designated is thereby permitted:

(i) to deliver to or file or lodge with the Clerk by electronic means through the electronic system any application which may be made to the Court and any document which may be delivered, filed or lodged in any such application,

(ii) to serve by electronic means through the electronic system any document or notice concerning such application upon any person required by statute or these Rules to be served with, or put on notice of, any such application, document or notice, provided that: (a) such service may be effected by the Clerk (or by a member of the staff of the Courts Service acting with the authority of the Clerk) on behalf of the person serving such document or notice, and (b) such service is deemed not to be effective unless the person to be served is a permitted user.

(4) Any other document or information concerning such application may be transmitted to a permitted user by or on behalf of the Court or Clerk by electronic means through the electronic system.

(5) A document transmitted by electronic means through the electronic system may be authenticated, and the identity of the person in whose name it has issued may be verified, by being—

(a) transmitted from an information system or e-mail address of a permitted user, accepted for the purpose of this rule by the Courts Service, or

(b) transmitted to or created within the electronic system by or on behalf of the Clerk or by a permitted user,

without the need for the incorporation in the document of a manuscript signature of the person in whose name it has issued.

(6) If a permitted user is not complying with the terms and conditions (or any of them), permission to use the electronic system may be withdrawn in respect of that user.

(7) An originating notice of application submitted for issue by electronic means in accordance with this rule is deemed to be issued when it has been assigned a record number and/or a return date.

(8) Where an originating notice of application or a notice of motion is issued in accordance with the preceding provisions of this rule,

(a) a print or copy of the originating notice of application or notice of motion as transmitted for issue shall, when issued, be treated as the original of that document, and

(b) the Clerk may certify any printed version of such document as a certified copy of the original.

[1]     Order 41 rule 21 inserted by SI 498 of 2020, effective 10 November 2020.

Order 41A

Service Of Documents In Civil Proceedings –

Service Of Documents Outside The State With The Permission Of The Court

: S.I. No. 17 Of 2014

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No41A-S.I. No. 471 Of 2018: District Court (Service) Rules 2018

 

Related link
S.I. No. 17 of 2014 – provisions overview

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 (O.J. 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.

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.

 

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.

 

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).

 

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.

 

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 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),

(b) service by registered post in accordance with Article 14 of the Service Regulation; or

(c) 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).

 

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.

 

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.

 

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 counterclaim 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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

Amendment to Order 41A

S.I. No. 471 of 2018:

District Court (Service) Rules 2018

1. (1) These Rules, which shall come into operation on the 10th day of December 2018, may be cited as the District Court (Service) Rules 2018.

(2) These Rules shall be construed together with the District Court Rules 1997 (S.I. No. 93 of 1997) and all other District Court Rules.

(3) The District Court Rules as amended by these Rules may be cited as the District Court Rules 1997 to 2018.

2. The District Court Rules 1997 (S.I. No. 93 of 1997) are amended:

(i) by the substitution for rule 6 of Order 41A of the following rule:

“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).”.

rder 41B

Service Of Documents In Civil Proceedings –

Service Of Documents Outside The State Without The Permission Of The Court

: S.I. No. 17 Of 2014

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No41B-S.I. No. 617 Of 2015: District Court (Jurisdiction And The Recognition And Enforcement Of Judgments In Civil Or Commercial Matters) Rules 2015

Related link
S.I. No. 17 of 2014 – provisions overview

SUBSEQUENT PROCEEDINGS UNDER-

COUNCIL REGULATION (EC) NO 44/2001 ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS (the “Jurisdiction Regulation”)

THE BRUSSELS CONVENTION OF THE EUROPEAN COMMUNITIES ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS, 1968 (the “Brussels Convention”)

THE LUGANO CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BETWEEN MEMBER STATES OF THE EUROPEAN COMMUNITIES AND THE EUROPEAN FREE TRADE ASSOCIATION, 2007 (the “Lugano Convention”)

COUNCIL REGULATION (EC) 4/2009 OF 18 DECEMBER 2008 ON JURISDICTION, APPLICABLE LAW, RECOGNITION AND ENFORCEMENT OF DECISIONS AND COOPERATION IN MATTERS RELATING TO MAINTENANCE OBLIGATIONS (the “Maintenance Regulation”)

THE ROME CONVENTION BETWEEN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES ON THE SIMPLIFICATION OF PROCEDURES FOR THE RECOVERY OF MAINTENANCE PAYMENTS (the “Rome Convention”) AND THE MAINTENANCE ACT 1994

THE NEW YORK CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE (the “New York Convention”) AND THE MAINTENANCE ACT 1994

THE HAGUE CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN 1996 (the “Hague Child Convention”)

1 — DEFINITIONS

 

1 Definitions

Civil and commercial matters: definitions

1. (1) In and for the purposes of Part 2 of this Order-

the “1998 Act” means the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1998 (No. 52 of 1998);

the “Brussels Convention” means the Convention on Jurisdiction and the enforcement of judgments in civil and commercial matters (including the Protocol annexed to that Convention) done at Brussels on the 27th day of September, 1968, (as adjusted by the Accession Conventions of 1978, 1982, 1989 and 1996);

the “Conventions” means the Brussels Convention, the 1971 Protocol, the 1978 Accession Convention, the 1982 Accession Convention, the 1989 Accession Convention and the 1996 Accession Convention (each as defined in section 2 of the 1998 Act);

“domiciled” must be construed, having regard to the instrument applicable in any given case, in accordance with Articles 2 and 59 to 61 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, section 15 and the Ninth Schedule of the 1998 Act and Articles 52 and 53 of the Brussels Convention;

“judgment” has the meaning assigned to it in section 4(1) of the 1998 Act;

the “Jurisdiction Regulation” means Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (O.J. L. 12 of 16 January 2001 and L. 307/28 of 24 November 2001) as amended by Commission Regulation (EC) No. 1496/2002 of 21 August 2002 (O.J. L. 225/13); by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded of 16 April 2003 (O.J. L. 236/33) and by the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (O.J. L. 112/21 of 24 April 2012);

the “Lugano Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Lugano on the 30th day of October 2007, as approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008, as given further effect in the State by the 1998 Act as amended by the Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012, and includes the Protocols and Annexes;

“Member State” means a member state of the European Union in which the Jurisdiction Regulation applies.

 

Maintenance matters: definitions

(2) In and for the purposes of Parts 3 to 7 of this Order:

the “1976 Act” means the Family Law (Maintenance of Spouses and Children) Act 1976 (No.11 of 1976);

the “1994 Act” means the Maintenance Act 1994 (No. 28 of 1994);

the “2011 Regulations” means the European Communities (Maintenance) Regulations 2011 (S.I. No. 274 of 2011) as amended by the European Communities (Maintenance)(Amendment) Regulations 2011 (S.I. No. 612 of 2011);

“Central Authority under the Maintenance Regulation” means the Minister for Justice and Equality as designated by Regulation 16 of the 2011 Regulations (but includes any other person for the time being designated by the State to discharge in or for the State the duties imposed by the Maintenance Regulation on such an authority);

“Central Authority under the 1994 Act” means a Central Authority appointed by order of the Minister for Justice and Equality under section 4(1)(a) of the 1994 Act to discharge the functions required of it under the 1994 Act or required of a Central Authority under the Rome Convention or of a transmitting agency or receiving agency under the New York Convention;

“central authority of a Member State” means the person designated by a Member State in which Chapter VII of the Maintenance Regulation applies to discharge in or for that State (in accordance with Article 49 of the Maintenance Regulation) the duties imposed by the Maintenance Regulation on such an authority;

“central authority of a reciprocating jurisdiction”, when used in the context of proceedings under Part III of the 1994 Act, means:-

(a) the central authority of such a jurisdiction which has been designated pursuant to paragraph 1 or, where appropriate, paragraph 2 of Article 2 of the Rome Convention, or

(b) an authority of such a jurisdiction with functions corresponding to those exercisable by the Central Authority within the State;

“central authority of a designated jurisdiction” means:-

(a) a transmitting or receiving agency in a state which is a contracting party to the New York Convention, or

(b) an authority of a designated jurisdiction with functions corresponding to those exercisable by the Central Authority within the State;

“claimant” means, according to the context, either:-

(a) a person residing in a Member State (including any body which under the law of that jurisdiction is entitled to exercise the rights of redress of or to represent that person) and claiming pursuant to the Maintenance Regulation to be entitled to receive maintenance from a person residing in the State, or

(b) a person residing in a designated jurisdiction (including any body which under the law of that jurisdiction is entitled to exercise the rights of redress of or to represent that person) and claiming pursuant to Part III of the 1994 Act to be entitled to receive maintenance from a person residing in the State, or

(c) a person residing in the State (including a competent authority within the meaning of Part 12 (Liability to Maintain Family) of the Social Welfare (Consolidation) Act 2005) and claiming pursuant to the Maintenance Regulation to be entitled to recover maintenance from a person residing in a Member State, or

(d) a person residing in the State (including a competent authority within the meaning of Part 12 (Liability to Maintain Family) of the Social Welfare (Consolidation) Act 2005) and claiming pursuant to Part III of the 1994 Act to be entitled to recover maintenance from a person residing in a designated jurisdiction;

“Contracting State”,

(a) when used in the context of proceedings under the Brussels Convention, has the meaning assigned to it in section 4(1) of the 1998 Act,

(b) when used in the context of proceedings under the Lugano Convention, means a State in respect of which that Convention has entered into force or taken effect in accordance with Article 69 or 72 thereof;

“designated jurisdiction” means:-

(a) any state which is a contracting party to the New York Convention, or

(b) any other state or jurisdiction which is declared by order of the Minister for Foreign Affairs to be a designated jurisdiction for the purposes of Part III of the 1994 Act;

“domiciled” and “habitually resident”, when used in relation to maintenance proceedings, must be construed in accordance with the Maintenance Regulation;

the terms “2007 Hague Protocol”, “decision”, “enforceable maintenance order”, “enforcement order”, “maintenance debtor” and “maintenance order” have the meanings assigned to them respectively in Regulation 2 of the 2011 Regulations;

“maintenance creditor” includes any body which, under the law of a reciprocating jurisdiction, is entitled to exercise their rights of redress of, or to represent, the creditor, and references in these Rules to a maintenance creditor or to a claimant (as defined herein) must be construed as including references to the Central Authority under the Maintenance Regulation and the Central Authority under the 1994 Act;

the “Maintenance Regulation” means Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L7 of 10 January 2009, page 1);

“Member State”, when used in relation to maintenance proceedings, means a member state of the European Union in which the relevant provision of the Maintenance Regulation applies;

the “New York Convention” means the Convention on the recovery abroad of maintenance done at New York on the 20th day of June, 1956;

“reciprocating jurisdiction” means a Member State or Contracting State (within the meaning of the 1998 Act) which is declared by order of the Minister for Foreign Affairs to be a reciprocating jurisdiction;

“respondent” means, according to the context, either:-

(a) a person residing in the State from whom maintenance is sought to be recovered pursuant to the Maintenance Regulation by a person residing in a Member State, or

(b) a person residing in the State from whom maintenance is sought to be recovered pursuant to Part III of the 1994 Act by a person residing in a designated jurisdiction, or

(c) a person residing in a Member State from whom maintenance is sought to be recovered pursuant to the Maintenance Regulation by a person residing in the State, or

(d) a person residing in a designated jurisdiction from whom maintenance is sought to be recovered pursuant to Part III of the 1994 Act by a person residing in the State.

 

Service: definitions

(3) In this Order:

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

“Service Regulation” has the same meaning as in Order 41A, rule 1.

2 — CROSS-BORDER CIVIL AND COMMERCIAL PROCEEDINGS IN THE STATE

Jurisdiction Regulation

Brussels Convention

Lugano Convention

2 Venue in cross-border insurance matters

2. When it is proposed to bring proceedings before the District Court by virtue of:

(a) Article 9 of either the Jurisdiction Regulation or the Lugano Convention, or

(b) Article 8.2 of the Brussels Convention,

(all of which relate to insurance matters) against an insurer domiciled in a Member State or Contracting State other than the State and the policyholder is domiciled in the State, the proceedings may be brought, heard and determined at any sitting of the Court for the transaction of civil business for the Court area in which the policy-holder is ordinarily resident or carries on any profession, business or occupation.

 

3 Venue in cross-border consumer contract claims

3. When a consumer who is domiciled in the State proposes to bring proceedings before the District Court by virtue of:

(a) Article 16 of either the Jurisdiction Regulation or the Lugano Convention, or

(b) Article 14 of the Brussels Convention

(all of which relate to consumer contracts) against the other party to a contract and that other party is domiciled in a Member State or Contracting State other than the State, the proceedings may be brought, heard and determined at any sitting of the Court for the transaction of civil business for the Court area in which the consumer is ordinarily resident or carries on any profession, business or occupation.

 

4 Application of the Hague Convention or Service Regulation

4. (1) The provisions of the Service Regulation apply to civil proceedings brought in the District Court by virtue of the Jurisdiction Regulation.

(2) The provisions of the Hague Convention apply to civil proceedings brought in the District Court by virtue of the Conventions or the Lugano Convention.

(3) When any document for use in such civil proceedings is required by this Part to be served on a person in another State in which the Service Regulation applies, service must be effected in accordance with the provisions (including Articles 7 to 10) of the Service Regulation and this Part.

(4) When any document for use in such civil proceedings is required by this Part to be served on a person in another State in which the Service Regulation does not apply but in which the Hague Convention applies, service must be effected in accordance with the provisions (including Articles 8 to 11) of the Hague Convention and this Part.

 

5 Beginning proceedings against a person domiciled abroad

5. (1) Notwithstanding the provisions of Order 41A, service of proceedings begun in the District Court by virtue of the Jurisdiction Regulation, the Conventions or as the case may be, the Lugano Convention, against a person who is domiciled in a Member State or Contracting State other than the State, may be effected (in accordance with rule 4 of this Order and, where applicable, the provisions of the Service Regulation or, as the case may be, the Hague Convention) without prior permission of the Court.

(2) When proceedings are instituted in the District Court by virtue of the Jurisdiction Regulation, the Conventions or the Lugano Convention against a person who is domiciled in a Member State or Contracting State other than the State and that person is not or is not known or believed to be a citizen of Ireland, notice of the document commencing the proceedings in the Form 41B.01 Schedule C and not the document itself must be served on that person.

(3) A claimant or claimant’s solicitor may begin such proceedings by completing, signing, stamping (if so required) the claim notice or other document beginning the proceedings and filing it, together with duly completed originals and copies of the notice (Form 41B.01 Schedule C) and of a certificate in the Form 41B.02 Schedule C with the Clerk for the Court area for which the proceedings are to be issued.

(4) The Clerk must stamp them with the official stamp showing the date of issue and return the documents to the claimant or claimant’s solicitor.

(5) A notice and certificate returned under sub-rule (3) must be served on the respondent as indicated in rule 4 (which may include service by post provided that if such service is into a Contracting State in which the Hague Convention applies, the State of destination has not made an objection to such service under Article 10(a) of the Hague Convention) or, where appropriate, in accordance with the provisions of Order 41A.

(6) Where the documents are to be served in the European territory of another Member State or Contracting State the time permitted for filing and entering an appearance and defence must be at least five weeks from the date of service. Where the documents are to be served in any non-European territory of another Member State or Contracting State, the time permitted for filing and entering an appearance and defence must be at least six weeks from the date of service.

(7) On receipt of the certificate of service prescribed in Article 10 and the Annex of the Service Regulation or Article 6 of the Hague Convention, the claimant (or solicitor for the claimant) must lodge with the Clerk the originals of:

– the claim notice, civil summons or other document instituting the proceedings,

– (where appropriate) the notice of commencement of proceedings (Form 41B.01) which was served,

– the certificate (Form 41B.02) which was served, and

– the certificate of service,

at least four days before the date on which the proceedings are first listed before the Court.

(8) Where service has been effected by registered post or insured post the following provisions must apply-

(a) the claimant or claimant’s solicitor must, not earlier than ten days after the date of posting, lodge with the Clerk the relevant documents listed in sub-rule (7), together with a statutory declaration as to service of the documents posted, the certificate of posting and the advice of delivery form (when returned);

(b) the documents issued for service must, subject to the provisions of Article 9 of the Service Regulation or, as the case may be, Article 15 of the Hague Convention, be deemed to have been served at the time at which the envelope would be delivered in the ordinary course of post;

(c) the statutory declaration as to service, the certificate of posting and the advice of delivery form must, subject to the provisions of Article 9 of the Service Regulation or, as the case may be, the said Article 15 of the Hague Convention, together be deemed to be sufficient evidence of service.

 

6 Where the respondent is a citizen of Ireland

6. (1) When proceedings are begun in the District Court by virtue of the Jurisdiction Regulation, the Conventions or the Lugano Convention against a person who is domiciled in a Member State or Contracting State other than the State, and that person is a citizen of Ireland, the claim notice or other document beginning the proceedings, with necessary modifications, may be served (rather than notice of the document).

(2) Subject to sub-rule (1), the requirements of rule 5 apply in such cases and must be construed accordingly.

 

7 Appearance and defence

7. Where, in proceedings to which rule 5 or rule 6 relates, a respondent intends to appear or to be represented at the hearing for the purpose of:

(a) defending the proceedings and/or,

(b) by virtue of Article 24 of either the Jurisdiction Regulation or the Lugano Convention, or Article 18 of the Brussels Convention for the purpose of contesting the jurisdiction of the Court,

the respondent or respondent’s solicitor must file:

(i) in proceedings begun by claim notice, an appearance and defence; or

(ii) in proceedings begun by civil summons or other document, a notice of appearance and intention to defend

so soon as to reach the Clerk within the period of five weeks or, as the case may be, six weeks, prescribed by rule 5(6) and within the same period serve a copy on the claimant or claimant’s solicitor.

 

8 Hearing of proceedings

8. (1) The provisions of Order 47A (Judgment in Default in Non-Debt Claims) apply to proceedings to which this Part relates with the modifications identified in Order 47.

(2) At the hearing of proceedings referred to in rule 5 or 6, the Clerk must produce to the Court any communication or correspondence received from the respondent.

 

Where the respondent does not appear

(3) Where the respondent fails to appear and is not represented at the hearing, the Court may, if it considers it necessary to do so, require the production of the advice of delivery form confirming delivery to the respondent or to the respondent’s address of the envelope containing the copy documents for service referred to in rule 5(5).

(4) Where the respondent has not filed an appearance, the claimant must, if applying for judgment by default, show to the satisfaction of the Court-

(a) that each claim made in the document instituting the proceedings is one which, by virtue of the provisions of the Jurisdiction Regulation, the Conventions or, as the case may be, the Lugano Convention, the Court has jurisdiction to hear and determine,

(b) that no other Court has exclusive jurisdiction within the meaning of the Jurisdiction Regulation, the Brussels Convention or, as the case may be, the Lugano Convention to hear and determine any such claim,

(c) that no proceedings involving the same cause of action are pending between the parties in another Member State or, as the case may be, in another Contracting State,

(d) that the respondent was duly served with the document beginning the proceedings or notice of that document, and

(e) that the respondent has been able to receive the document beginning the proceedings or notice in sufficient time to enable him or her to arrange for his or her defence, or all necessary steps have been taken to this end, as required by Article 26 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, Article 20 of the Brussels Convention.

(5) Where the respondent has filed an appearance or otherwise given notice of his or her intention to defend, judgment must not be given until the requirements of Article 19 of the Service Regulation or, as appropriate, Article 15 of the Hague Convention (as set out in Order 41A, rule 10) have been complied with.

(6) Notwithstanding sub-rule (5), the Court may give judgment even if no certificate of service or delivery as provided for by the Service Regulation or by the Hague Convention has been received, if all the conditions listed in Article 19 of the Service Regulation or Article 15 of the Hague Convention (as set out in Order 41A, rule 14) are fulfilled.

(7) Where the Court gives judgment against a respondent in proceedings to which this rule relates, the claimant, (or claimant’s solicitor) must immediately notify the respondent of having obtained the judgment.

(8) Where judgment has been given in such proceedings against a respondent who has not appeared and the respondent wishes to apply for an extension of time for appeal from the judgment, the provisions of Order 41A, rule 15 apply.

 

9 Enforcement of judgments abroad: provision of documents

9. (1) An interested party who, for the purposes of Articles 53 and 54 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, Articles 46 and 47 of the Brussels Convention, requests the provision of the documents mentioned in section 14 of the 1998 Act in respect of a judgment given in the District Court, must lodge with the Clerk for the Court area in which the judgment was given-

(a) an original and two copies of the judgment duly completed,

(b) a certificate in duplicate in the Form 41B.03 Schedule C, and

(c) where appropriate, an original and copy or copies of the document or documents establishing that notice of the institution of proceedings was served on the respondent.

(2) When the judgment has been signed by the Judge and served in accordance with the provisions of rule 10, the Clerk must give to the party requesting them a duly authenticated copy of the judgment, a certificate in the Form 41B.03 Schedule C and a certified true copy or copies of the document or documents referred to in sub-rule 1(c), and must retain the other documents in his or her custody.

 

10 Service of judgment and proof of service

10. (1) Where, for the purposes of Article 53 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, Article 47 of the Brussels Convention, it is necessary to serve on a respondent a judgment given at a sitting of the District Court, service must be effected by or on behalf of the claimant in accordance with the provisions of the Service Regulation or the Hague Convention and this Part.

(2) When service has been effected and duly certified, the certificate of service or, where appropriate, the certificate of posting, statutory declaration as to service and the advice of delivery form, must be lodged with the Clerk for retention with the original judgment.

(3) On the request of a party applying for enforcement of a judgment for the provision of the documents referred to in Article 47.1 of the Brussels Convention, the Clerk must give to that party a certificate in the Form 41B.04 Schedule C (with any necessary modifications) and a certified copy or copies of the relevant document or documents lodged under sub-rule (2).

(4) On the request of a party applying for enforcement of a judgment for the provision of the certificate referred to in Article 54 of either the Jurisdiction Regulation or the Lugano Convention, the Clerk must give to that party a certificate in the form of Annex V of the Jurisdiction Regulation.

3 — CROSS-BORDER MAINTENANCE PROCEEDINGS IN THE STATE

 

Maintenance Regulation

11 Venue in cross-border maintenance matters

11. When it is proposed to bring proceedings before the District Court by virtue of Chapter II of the Maintenance Regulation and Regulation 3, 4 or 6 of the 2011 Regulations, against a person domiciled or habitually resident outside the State, and the creditor or debtor, as the case may be, is habitually resident in the State, or is deemed to be habitually resident in the Dublin Metropolitan District, the proceedings may be brought, heard and determined at any sitting of the Court for the Court area in which creditor or debtor, as the case may be, is habitually resident or is deemed to be habitually resident.

 

12 Application of the Hague Convention or Service Regulation

12. (1) The provisions of the Service Regulation or of the Hague Convention apply, where relevant, to proceedings brought in the District Court by virtue of the Maintenance Regulation.

(2) When any document for use in such proceedings is required by this Part to be served on a person in another Member State, service must be effected in accordance with the provisions (including Articles 7 to 10) of the Service Regulation and this Part.

(3) When any document for use in such proceedings is required by this Part to be served on a person in another State which is a state in which the Service Regulation does not apply but in which the Hague Convention applies, service must be effected in accordance with the provisions (including Articles 8 to 11) of the Hague Convention and this Part.

 

13 Beginning proceedings against a person domiciled abroad

13. (1) Notwithstanding the provisions of Order 41A, service of proceedings which may be instituted in the District Court by virtue of the Maintenance Regulation and the 2011 Regulations against a person who is neither domiciled nor habitually resident in the State may be effected (in accordance with rule 4 and, where applicable, the provisions of the Service Regulation or, as the case may be, the Hague Convention), without prior permission of the Court.

(2) When proceedings are begun in the District Court by virtue of the Maintenance Regulation against a person who is neither domiciled nor habitually resident in the State, and that person is not or is not known or believed to be a citizen of Ireland, notice of the document beginning the proceedings (in the Form 41B.01, Schedule C) and not the document itself must be served on that person.

(3) A claimant or claimant’s solicitor may begin proceedings mentioned in sub-rule (2) by completing, signing, stamping (if so required) the maintenance summons or other document beginning the proceedings and filing it, together with duly completed originals and copies of the notice (Form 41B.01, Schedule C) and of a certificate in the Form 41B.02, Schedule C with the Clerk for the Court area for which the proceedings are to be issued.

(4) The Clerk must stamp the documents showing the date of filing and must, having regard to the provisions of sub-rule (6), list the proceedings for hearing before the Court.

(5) Having recorded the place, date and time of hearing on the maintenance summons or other document beginning the proceedings and the notices, the Clerk must return all documents to the claimant or claimant’s solicitor.

(6) A notice and certificate returned under sub-rule (5) must be served as indicated in rule 12 or, where appropriate, in accordance with the provisions of Order 41A, on the respondent.

(7) Where the documents are to be served in the European territory of another Member State they must be served at least five weeks before the date of sitting of the Court before which the proceedings have been listed for hearing.

(8) Where the documents are to be served in any non-European territory of another Member State, they must be served at least six weeks before the date of sitting of the Court before which the proceedings have been listed for hearing.

(9) On receipt of the certificate of service prescribed in Article 10 and the Annex of the Service Regulation, the claimant (or claimant’s solicitor) must lodge with the Clerk the originals of:

– the maintenance summons or other document beginning the proceedings,

– (where appropriate) the notice that proceedings have been begun (Form 41B.01, Schedule C) which was served,

– the certificate (Form 41B.02, Schedule C) which was served, and

– the certificate of service,

at least four days before the date of the sitting of the Court.

(10) Where service has been effected by registered post or insured post the following provisions apply-

(a) the claimant or claimant’s solicitor must, not earlier than ten days after the date of posting, lodge with the Clerk the relevant documents listed in sub-rule (9), together with a statutory declaration as to service of the documents posted, the certificate of posting and the advice of delivery form (when returned);

(b) the documents issued for service must be deemed to have been issued at the time at which the envelope containing the copies for service was posted;

(c) the documents must, subject to the provisions of Article 9 of the Service Regulation, be deemed to have been served at the time at which the envelope would be delivered in the ordinary course of post;

(d) the statutory declaration as to service, the certificate of posting and the advice of delivery form must, subject to the provisions of Article 9 of the Service Regulation together be deemed to be sufficient evidence of service.

 

14 Where the respondent is a citizen of Ireland

14. (1) When proceedings are begun in the District Court by virtue of the Maintenance Regulation against a person who is neither domiciled nor habitually resident in the State, and that person is a citizen of Ireland, the maintenance summons or other document beginning the proceedings, with necessary modifications, may be served (rather than notice thereof).

(2) Subject to sub-rule (1), the requirements of rule 13 apply in such cases and must be construed accordingly. Two notices of appearance and intention to defend must be served in each case.

 

15 Notice of appearance and intention to defend

15. Where, in proceedings to which rule 13 or rule 14 relates, a respondent intends to appear or to be represented at the hearing:

(a) for the purpose of defending the proceedings and/or,

(b) by virtue of Article 5 of the Maintenance Regulation for the purpose of contesting the jurisdiction of the Court,

the respondent or his or her solicitor must complete, detach and send by post to the Clerk one of the notices of appearance and intention to defend which were received so soon as to reach the Clerk not later than four days before the date fixed for the hearing, and must at the same time complete, detach and send by post to the claimant or solicitor for the claimant the other such Notice received.

 

16 Hearing of proceedings

16. (1) Subject to this rule, the provisions of Order 54 (Maintenance of Spouses and Children) apply to proceedings to which this Part relates.

(2) The provisions of Order 47 (Judgment in Default) and Order 47A (Judgment in Default in Non-Debt Claims) do not apply to proceedings to which this Part relates.

(3) At the hearing of proceedings referred to in rule 13 or rule 14, the Clerk must produce to the Court any communication or correspondence received from the respondent.

 

-where the respondent does not appear

(4) Where the respondent fails to appear and is not represented at the hearing, the Court may, if it considers it necessary to do so, require the production of the advice of delivery form confirming delivery to the respondent or to the respondent’s address of the envelope containing the copy documents for service referred to in rule 13(5).

(5) Where the respondent fails to appear and is not represented at the hearing and no notice of intention to appear has been received from the respondent, the claimant must show to the satisfaction of the Court-

(a) that each claim made in the document beginning the proceedings is one which, by virtue of the provisions of the Maintenance Regulation, the Court has jurisdiction to hear and determine,

(b) that no proceedings involving the same cause of action are pending between the parties in another Member State,

(c) that the respondent was duly served with the document beginning the proceedings or notice of that document, and

(d) that the respondent has been able to receive the document beginning the proceedings or notice of that document in sufficient time and in such a way to enable him or her to arrange for his or her defence, as required by Article 19.1(a) of the Maintenance Regulation.

(6) Where the respondent has not appeared or given notice to defend, a decision must not be given until the requirements of Article 19 of the Service Regulation (as set out in Order 41A, rule 13) have been complied with.

(7) Notwithstanding the provisions of sub-rule (6), the Court may give a decision even if no certificate of service or delivery as provided for by the Service Regulation has been received if all the conditions listed in Article 19 of the Service Regulation (as set out in Order 41A, rule 14) are fulfilled.

(8) Where the Court gives a decision against a respondent in proceedings to which this rule relates, the claimant, (or claimant’s solicitor) must immediately notify the respondent of having obtained such decision.

(9) Where a decision has been given in such proceedings against a respondent who has not appeared and that respondent wishes to apply for an extension of time for appeal from the decision, the provisions of Order 41A, rule 12 apply in every such case.

 

17 Enforcement of judgments abroad: provision of documents

17. (1) A party who requests the provision of the documents mentioned in Article 20 or, as the case may be, Article 28, of the Maintenance Regulation-

(a) must file with the Clerk for the Court area in which the decision was given an original and two copies of the order recording the decision and, where appropriate, an original and copy or copies of the document or documents establishing that notice of the institution of proceedings was served on the respondent, and

(b) must provide the Clerk with any additional information required by the Clerk.

(2) When the order has been signed and served in accordance with the provisions of rule 18, the Clerk must give to the party requesting them a duly authenticated copy of the order recording the decision, the extract in the form set out in Annex I or, as the case may be, Annex II, to the Maintenance Regulation and a certified true copy or copies of the other documents referred to in sub-rule 1(a), and must retain the other original documents in his or her custody.

 

18 Service of decision and proof of service

18. (1) Where, for the purposes of enforcing a decision under the Maintenance Regulation, it is necessary to serve on a respondent a decision given at a sitting of the District Court, service must be effected by or on behalf of the claimant and in accordance with the provisions of the Service Regulation (or, where applicable, the Hague Convention) and this Part.

(2) When service has been effected and duly certified, the certificate of service or, where appropriate, the certificate of posting, statutory declaration as to service and the advice of delivery form, must be filed with the Clerk for retention with the original judgment.

 

19 Application for variation or revocation by virtue of Chapter II of the Maintenance Regulation

19. (1) An application to the District Court being brought-

(a) by virtue of Chapter II of the Maintenance Regulation, by a maintenance creditor domiciled in the State against a maintenance debtor outside the State, or

(b) by virtue of Chapter II of the Maintenance Regulation, by a maintenance creditor outside the State against a maintenance debtor habitually resident or domiciled in the State

must be preceded by the issue and service on the respondent of the appropriate summons or notice of application mentioned in Order 54 or, where appropriate, notice thereof in the Form 41B.01, Schedule C, with any necessary modifications, where the respondent is outside the State, and the provisions of this Part apply to any such application.

(2) An order of the Court granting any such application must be served on a party within the State by registered post and on a party outside the State in accordance with the provisions of the Service Regulation (or, where applicable, the Hague Convention) and this Part.

 

20 Transmission of documents on change of address by maintenance debtor

20. (1) Where a maintenance debtor ceases to reside in the Court area in which the proceedings have been registered and commences to reside elsewhere in the State, the Clerk for the first Court area must forward to the Clerk for the Court area in which the maintenance debtor is for the time being residing the following documents-

(a) a copy of the maintenance order and a copy of the relevant enforcement order or, as the case may be, a copy of the extract in the form set out in Annex I or, as the case may be, Annex II, to the Maintenance Regulation, of the decision issued by the court of origin,

(b) a certificate of arrears in the Form 41B.07, Schedule C,

(c) a copy of the variation order (if any),

(d) any other relevant document.

(2) The Clerk receiving the documents must proceed as if the copy of the maintenance order and the copy of the enforcement order had been received from the Master of the High Court.

4 — ENFORCEMENT OF EU MAINTENANCE ORDERS UNDER THE MAINTENANCE REGULATION AND THE 2011 REGULATIONS: DECISIONS GIVEN IN A MEMBER STATE BOUND BY THE 2007 HAGUE PROTOCOL

21 Appropriate Clerk to register decisions

21. (1) Where a maintenance creditor or the Central Authority under the Maintenance Regulation wishes to seek the enforcement in the State of a decision referred to in Article 17.1 of the Maintenance Regulation, the party or the Central Authority under the Maintenance Regulation must send to the Clerk for the appropriate Court area for the district referred to in Regulation 3, 4 or 6 (as the case may be) of the 2011 Regulations (in this Part, the “appropriate Clerk”) the documents referred to in Article 20 of the Maintenance Regulation.

(2) Where the Central Authority makes a request under Regulation 17(6) of the 2011 Regulations that payments of maintenance be made directly to the maintenance creditor, the Clerk must enter the matter before the Court.

(3) On receipt of the documents, the Clerk must—

(a) register particulars of the decision concerned, and

Notice to maintenance debtor

(b) by notice in the Form 41B.05, Schedule C, inform the maintenance debtor of the registration of the decision.

(4) The notice must be sent by registered prepaid post and a copy must also be sent by registered prepaid post to the person on whose behalf registration was sought.

 

Appropriate Clerk to register particulars of variation etc.

(5) Where a decision referred to in sub-rule (1) has been varied or revoked by the court which made the decision and the appropriate Clerk has received the documents referred to in Article 20 of the Maintenance Regulation in respect of the variation or revocation, he or she must register particulars thereof and must by notice inform the maintenance debtor of the registration of the variation or revocation order.

(6) This rule does not limit the ability of a party who has not complied with sub-rule (1) to invoke in the State a decision recognised within the meaning of Article 17.1 of the Maintenance Regulation otherwise than for the purpose of enforcement of the decision.

 

22 Provisions of Orders 54, 56 and 57 apply

22. (1) The provisions of Order 54, Order 56 and Order 57 (except rules 7 and 8 of that Order) apply and may be applied in respect of any decision recognised within the meaning of Article 17.1 of the Maintenance Regulation which is a maintenance order (by virtue of the 2011 Regulations) or, as the case may be, is deemed to be an antecedent order by virtue of Regulation 8(3) of the 2011 Regulations.

(2) Without prejudice to the generality of sub-rule (1), when:

(a) a District Court Clerk receives a request in writing from a maintenance creditor or from the Central Authority under the Maintenance Regulation in relation to any sum payable by virtue of any decision recognised within the meaning of Article 17.1 of the Maintenance Regulation which is a maintenance order (by virtue of the 2011 Regulations) or, as the case may be, is deemed to be an antecedent order by virtue of Regulation 8(3) of the 2011 Regulations, but not duly paid, the Clerk may proceed in accordance with the provisions of Order 56 (Attachment of Earnings) or rules 3 and 4 (but not rules 7 and 8) of Order 57 (Proceedings under section 8 of the Enforcement of Court Orders Act 1940), or

(b) it appears to a District Court Clerk that any sums payable to him or her under any decision recognised within the meaning of Article 17.1 of the Maintenance Regulation which is a maintenance order (by virtue of the 2011 Regulations) or, as the case may be, is deemed to be an antecedent order by virtue of Regulation 8(3) of the 2011 Regulations, for transmission to the maintenance creditor are in arrears and he or she has received no request in writing under section 9(2) of the Family Law (Maintenance of Spouses and Children) Act 1976 in relation thereto, such Clerk may in his or her discretion, having considered the extent of the arrears and any other relevant matter, notify the maintenance creditor of the means of enforcement available in respect of the order.

 

5 — ENFORCEMENT OF EU MAINTENANCE ORDERS UNDER THE MAINTENANCE REGULATION AND THE 2011 REGULATIONS: DECISIONS GIVEN IN A MEMBER STATE NOT BOUND BY THE 2007 HAGUE PROTOCOL AND DECISIONS GIVEN IN A MEMBER STATE BOUND BY THE 2007 HAGUE PROTOCOL BUT TO WHICH ARTICLE 75.2(a) OR (b) APPLY

 

23 Registration of orders

23. (1) Where a copy of a maintenance order or a copy of an order varying or revoking such an order, in respect of which an enforcement order has been made, is received together with a copy of the relevant enforcement order by a District Court Clerk from the Master of the High Court or the Central Authority, the Clerk must register particulars of each document received.

(2) If the enforcement order has been made in respect of a maintenance order or an order varying a maintenance order, the Clerk must send by registered post to the maintenance creditor and the maintenance debtor a notice in the Form 41B.06, Schedule C.

(3) If the enforcement order has been made in respect of an order revoking a maintenance order, the Clerk must send by registered prepaid post to the maintenance debtor a copy of the revocation order and a statement of any amounts still due and payable under the maintenance order, which statement must contain, or be sent together with, an endorsement to the like effect as the endorsement on a notice under sub-rule (2).

 

24 Request from maintenance creditor

24. (1) When a District Court Clerk receives a request in writing from a maintenance creditor under Regulation 10(9) of the 2011 Regulations in relation to any sum payable by virtue of an enforceable maintenance order but not duly paid, the Clerk may proceed in accordance with the provisions of Order 56 (Attachment of Earnings) or rules 3 and 4 (but not rules 7 and 8) of Order 57 (Proceedings under section 8 of the Enforcement of Court Orders Act 1940).

(2) Where it appears to a District Court Clerk that any sums payable to him or her under an enforceable maintenance order for transmission to the maintenance creditor are in arrears and he or she has received no request in writing under the said Regulation 10(9) in relation thereto, the Clerk may in his or her discretion, having considered the extent of the arrears and any other relevant matter, notify the maintenance creditor of the means of enforcement available in respect of the order.

 

25 Application by virtue of Articles 2 and 5.2 of Brussels Convention or the Lugano Convention

25. (1) An application to the District Court being brought-

(a) by virtue of Article 5.2 of either the Brussels Convention or the Lugano Convention by a maintenance creditor domiciled or habitually resident in the State against a maintenance debtor domiciled in a Member State or Contracting State other than the State for the variation of a maintenance order,

(b) by virtue of Article 2 of either the Brussels Convention or the Lugano Convention by a maintenance creditor domiciled in a Member State or Contracting State other than the State against a maintenance debtor domiciled in the State for the variation of a maintenance order, or

(c) by virtue of Article 2 of either the Brussels Convention or the Lugano Convention by a maintenance debtor domiciled in a Member State or Contracting State other than the State against a maintenance creditor domiciled in the State for the variation or revocation of a maintenance order,

must be preceded by the issue and service on the respondent of a summons in the Form 41B.08, Schedule C or, where appropriate, notice of summons in the Form 41B.01, Schedule C, with any necessary modifications, where the respondent is domiciled in a Member State or Contracting State other than the State, and the provisions of this Order apply.

(2) The order of the Court granting the application must be served on a party within the State by registered post and on a party domiciled in another Member State or Contracting State in accordance with the provisions of the Service Regulation or, as appropriate, the Hague Convention (including Articles 8 to 11 thereof) and this Order.

6 — RECOVERY OF MAINTENANCE

– Maintenance Act 1994- Part II

– Reciprocating Jurisdictions

26 Enforcement Order

26. If a judgment or an instrument or settlement referred to in Articles 50 or 51 of the Brussels Convention or, as the case may be, Articles 57 or 58 of the Lugano Convention does not relate solely to maintenance, these Rules apply only to those parts that relate to maintenance, and on receipt of an enforcement order made by the High Court, in relation thereto, the Clerk must proceed as indicated in rule 27.

 

27 Registration under section 7 of the 1994 Act

27. Where, pursuant to section 7(1) of the 1994 Act, the Central Authority under the 1994 Act, on receipt of an application for the recognition or enforcement in the State of a maintenance order which has been transmitted by the Central Authority of a reciprocating jurisdiction, sends the application to

(a) the Master of the High Court for determination in accordance with section 7 of the 1998 Act, or

(b) the High Court for determination in accordance with Articles 31 and 32 of the Brussels Convention or, as the case may be, Articles 38 and 39 and Annex II of the Lugano Convention

and, where an enforcement order is made under sections 7(2) or 7(7) of the 1994 Act, as appropriate, and the orders are sent to the appropriate District Court Clerk, the Clerk must register the documents and proceed to enforce the enforceable maintenance order in accordance with the provisions of this Order.

7 — RECOVERY OF MAINTENANCE

-Maintenance Act 1994

-Designated Jurisdictions

-The New York Convention

 

28 Enforcement Order

28. Where:

(a) the Central Authority under the 1994 Act receives a request from a central authority of a designated jurisdiction on behalf of a claimant for the recovery of maintenance from a person for the time being residing in the State (the “respondent”), and

(b) the request is accompanied by an order of a Court in a Contracting State (within the meaning of the 1998 Act), and

(c) the Central Authority under the 1994 Act transmits the request pursuant to section 14(1)(a) of the 1994 Act to the Master of the High Court for determination in accordance with section 7 of the 1998 Act, and

(d) the Master, having made an enforcement order in respect of the maintenance order, sends those orders to the appropriate District Court Clerk,

the Clerk must proceed as indicated in rule 27.

 

29 Application for enforcement under section 14 of the 1994 Act

29. (1) Where the Central Authority under the 1994 Act receives a request referred to in rule 28 and the request is accompanied by an order made by any other Court and the Central Authority under the 1994 Act is of opinion that the order may be enforceable in the State, the Central Authority under the 1994 Act may apply pursuant to section 14(1)(b) of the 1994 Act at any sitting of the District Court for the relevant Court district (as set out in section 14(11) of the 1994 Act) for the enforcement of the order.

(2) An application mentioned in sub-rule (1) must be preceded by the issue and service of a notice, in the Form 41B.09, Schedule C on the respondent. The notice must be accompanied by a copy of the documents mentioned in section 14(6) of the 1994 Act. Service must be effected by registered post at least 21 days prior to the return date.

(3) When service has been effected, the applicant must lodge with the Clerk the original of the notice, together with a statutory declaration as to service thereof and the certificate of posting, at least four days before the return date.

 

Clerk to send copy orders

(4) Where, on hearing the application, the Court makes an order for the enforcement of the order of the court in the designated jurisdiction for the recovery of maintenance, copies of the order of the Court must be sent by the Clerk to the Central Authority under the 1994 Act and the respondent.

Clerk to enforce order

(5) When the Court makes such an order the Clerk must proceed to enforce the enforceable maintenance order as indicated in rule 27.

 

30 Enforcement procedure where not accompanied by order

30. (1) Where the Central Authority under the 1994 Act receives a request referred to in rule 27 and either:-

(a) the request is not accompanied by an order referred to in rule 27 or in rule 28, or

(b) enforcement of the order is refused,

– application to District Court

and the Central Authority under the 1994 Act intends to make an application to the District Court under section 14(1)(c)(ii) of the 1994 Act, for the recovery of maintenance in accordance with the request, the application may be made at any sitting of the Court for the relevant Court district (as set out in section 14(11) of the 1994 Act) and must be deemed (as provided in section 14(3) of that Act) to be an application for a maintenance order under section 5, 5A or 21A of the 1976 Act, as appropriate.

 

– on notice

(2) The application must be preceded by the issue and service of a notice, in the Form 41B.10, Schedule C on the respondent. The notice must be accompanied by copies of the documents mentioned in section 14(6) of the 1994 Act. Service must be effected by registered post at least 21 days before the return date of the application.

(3) When service has been effected, the applicant must lodge with the Clerk the original of the notice, together with the certificate of posting, at least four days prior to the return date.

(4) Where, on hearing the application, the court makes a maintenance order, the Clerk must proceed in accordance with the relevant provisions of Order 54 and this Order, and the forms therein provided (with any necessary modifications) may be used.

 

31 Deposition

31. Where the Court, on an application to it under section 14(1)(c) of the 1994 Act, takes evidence from the respondent on sworn deposition, the deposition must be in the Form 41B.11, Schedule C. A copy of the deposition must be sent by the Clerk to the Central Authority under the 1994 Act for transmission to the central authority of the designated jurisdiction with a request that the claimant provide an answering affidavit.

 

32 Transfer to facilitate videolink evidence

32. Where, at the hearing of an application under section 14(1)(c) of the 1994 Act, the Court makes an order pursuant to section 14(7) of that Act transferring the proceedings to a Court district where facilities are available for taking the evidence of the claimant or of any witness through a live television link, the Clerk must forward a copy of the order together with any other documents in his or her possession relating to the proceedings, to the appropriate District Court Clerk.

 

33 Request to give evidence by deposition

33. (1) A request by the claimant to give evidence on sworn deposition before the District Court under section 15(2)(a) of the 1994 Act may be made at any sitting of the Court for the Court district in which the claimant resides or carries on any profession, business or occupation.

(2) A deposition, taken under section 15(2)(a) of the 1994 Act must be in the Form 41B.12, Schedule C and must include the certificate of the Court required under section 15(2)(a) of the 1994 Act at the foot of the deposition. A certified copy of the deposition and certificate must be given by the Clerk to the claimant.

 

34 Certificate under section 15(3)(b) of the 1994 Act

34. The certificate to be given by the Clerk to a claimant on request, pursuant to section 15(3)(b) of the 1994 Act, must be in the Form 41B.13, Schedule C.

 

35 Procedure under section 19 of the 1994 Act

35. (1) Subject to the provisions of section 19(8) of the 1994 Act, where on request from the Master of the High Court, pursuant to section 19(2) of the 1994 Act, a Judge of the District Court proposes to take the evidence of a person for the purposes of proceedings in a designated jurisdiction for the recovery of maintenance, the Clerk must issue and serve notice, in the Form 41B.14, Schedule C on the person concerned, the Central Authority under the 1994 Act, the Master of the High Court and on such other persons as the Court thinks fit. The notice must be served by registered post at least 21 days prior to the date fixed for taking the evidence.

(2) Where such evidence is taken on sworn deposition, the deposition must be in the Form 41B.15, Schedule C. The Clerk must send a certified copy thereof to the Central Authority under the 1994 Act for transmission to the requesting authority.

(3) Where, as provided for in section 19(9) of the 1994 Act, the requesting authority makes a request for the taking of evidence directly to the District Court, the provisions of this rule must, with any necessary modifications, apply in relation to such a request.

(4) If it is not possible to take the evidence within four months of the receipt of the request by the Central Authority under the 1994 Act, the Judge must certify the reasons for the non-execution of the request or for the delay in executing it and the Clerk must send the same to the Central Authority under the 1994 Act for transmission to the requesting authority.

8 — MISCELLANEOUS PROVISIONS APPLICABLE TO PROCEEDINGS TO WHICH PARTS 3 TO 7 REFER

 

36 Currency of payments

36. An amount payable in the State under:-

(a) a decision recognised within the meaning of Article 17.1 of the Maintenance Regulation;

(b) an enforceable maintenance order by virtue of an enforcement order as provided for in the 2011 Regulations, or

(c) an order for recovery of maintenance which is made by a Court in a jurisdiction other than the State and is enforceable in the State as provided for in the 1994 Act,

must be paid in euro and if the amount is stated in the decision, enforceable maintenance order or order for recovery, as the case may be, in a currency other than euro, the payment must be made on the basis of the exchange rate prevailing on the date of the making of the enforcement order or of the order of a court in the State for the enforcement of the decision for the recovery of maintenance between that other currency and euro.

 

37 Clerk to give receipt for and transmit payments

37. (1) The Clerk must give, or send by ordinary post, to the maintenance debtor a receipt for each payment made by him or her under an order referred to in rule 36 and must transmit such payment forthwith by registered post, by insured post or by any other appropriate method to the person entitled to receive it, having due regard to the provisions of subsections 2(a) and 2(b) of section 4 of the 1994 Act, where applicable.

(2) Before transmitting any such payment abroad the Clerk must comply with any Exchange Control regulations for the time being in force governing the transmission of such payments and must, where necessary for that purpose, produce the order referred to in rule 36 to an authorised dealer, (i.e. a licensed bank) for inspection.

 

38 Venue for proceedings by creditor

38. (1) Proceedings by or on behalf of the maintenance creditor being brought in the District Court under the 2011 Regulations and the Maintenance Regulation for the enforcement of an enforceable maintenance order, may be brought, heard and determined:

(a) in case the maintenance debtor under the enforceable maintenance order concerned resides in the State or is deemed under Regulation 6 of the 2011 Regulations to be habitually resident in the Dublin Metropolitan District, at any sitting of the Court for the Court district in which the maintenance debtor habitually resides or, as the case may be, is deemed to be habitually resident, in accordance with Regulation 10(7)(a) of the 2011 Regulations;

(b) in case the maintenance debtor does not reside in the State but is in the employment either of a person residing or having a place of business in the State or of a body whose seat of management or control is in the State, at any sitting of the Court for the Court district in which that person resides or, as the case may be, the body has its seat, in accordance with Regulation 10(7)(b) of the 2011 Regulations.

(2) Proceedings being brought by the maintenance creditor by virtue of Article 2 of either the Brussels Convention or the Lugano Convention for the variation of a maintenance order made in a Contracting State other than the State may be brought, heard and determined at any sitting of the Court for the Court district in which the maintenance debtor is domiciled.

9 — MISCELLANEOUS PROVISIONS APPLICABLE TO PROCEEDINGS TO WHICH PARTS 2, 5 AND 6 REFER

39 Application for order to provide information under Regulation 19(2) of the 2011 Regulations

39. (1) An application by the Central Authority under the Maintenance Regulation to the Court under Regulation 19(2) of the 2011 Regulations for an order requiring a person or body (not being a person or body mentioned in Regulation 19(1) of the 2011 Regulations) to provide to the Central Authority under the Maintenance Regulation information as to the whereabouts, place of work, or location and extent of the assets, of a maintenance creditor or debtor (within the meaning of the 2011 Regulations) may be made at any sitting of the Court for the Court district in which the person or body to whom the order sought is to be directed resides or carries on any profession, business or occupation. Notice of the application in the Form 41B.16, Schedule C must be filed with the Clerk at least four days prior to the date of hearing.

(2) Where the Court grants the application and makes the order sought, the Central Authority must forward a copy of the order to the person or body concerned.

 

40 Application for order to provide information under section 20(2) of the 1994 Act

40. (1) An application by the Central Authority under the 1994 Act to the Court under section 20(2) of the 1994 Act for an order requiring a person or body (not being a person or body mentioned in section 20(1) of that Act) to provide to the Central Authority under the 1994 Act information as to the whereabouts, place of work, or location and extent of the assets of a maintenance debtor (within the meaning of the 1998 Act) or respondent may be made at any sitting of the Court for the Court district in which the person or body to whom the order sought is to be directed resides or carries on any profession, business or occupation. Notice of the application in the Form 41B.16, Schedule C must be filed with the Clerk at least four days prior to the date of hearing.

(2) Where the Court grants the application and makes the order sought, the Central Authority must forward a copy of the order to the person or body concerned.

10 — PROCEEDINGS UNDER THE HAGUE CONVENTION 1996

41 Definitions (this Part)

41. In this Part (rules 41 to 52 inclusive), unless the context otherwise requires:

the “2000 Act” means the Protection of Children (Hague Convention) Act 2000 (No. 37 of 2000);

the “Clerk” means the Clerk for the Court area in which the original application was or is to be heard and decided or in which the original order was made;

each of the expressions “another contracting state”, “Central Authority”, “contracting state”, “the Convention”, “decision”, “judgment”, and “measure” has the meaning assigned to it by section 1 of the 2000 Act.

42 Venue for proceedings under the 2000 Act or the Convention

42. Subject to section 4(2) and section 4(3) of the 2000 Act, proceedings before the Court under the 2000 Act or under the Convention by virtue of the 2000 Act may be brought, heard or determined:

(a) in the case of proceedings to which section 4(1)(b) or section 4(1)(c) of the 2000 Act applies, at any sitting of the Court for any Court area in the Court district determined in accordance with section 4(1)(b) or, as the case may be, section 4(1)(c) of the 2000 Act;

(b) in the case of any other proceedings under the 2000 Act or under the Convention by virtue of that Act, at such sitting of the Court or otherwise as is prescribed by these Rules or by statute for proceedings seeking the relief concerned.

 

43 Stay of proceedings

43. (1) Where the Court has jurisdiction in any proceedings to which the Convention applies, under Article 5 or 6 of the Convention but, on application of a party to the proceedings or of its own motion, considers in accordance with Article 8 of the Convention that the authority of another contracting state would be better placed in the particular case to assess the best interests of the child, the Court may stay the proceedings before it for a period specified by the Court and, as the Court considers appropriate, either:

(a) direct the Central Authority to make a request on its behalf to the proper authority of the other contracting state concerned to assume jurisdiction to take such measures of protection as it considers necessary in accordance with Article 8 of the Convention, or

(b) invite the parties to introduce such a request before the proper authority of the other contracting state concerned in accordance with Article 8 of the Convention,

and the Court may, for those purposes, limit the period of any stay to a period specified by the Court, and adjourn the matter for further consideration.

(2) The Court may discharge a stay ordered in accordance with sub-rule (1) and direct the withdrawal of any request made under paragraph (a) of that sub-rule if the authority in the other contracting state concerned does not assume jurisdiction within the period for which the Court granted the stay.

(3) The Court may discharge a stay ordered in accordance with sub-rule (1) if the parties do not, within the period specified by the court, request the authority in the other contracting state concerned to assume jurisdiction.

 

44 Application for court to exercise jurisdiction as appropriate court of a contracting state

44. Where the Court is asked in accordance with the Convention to exercise a jurisdiction conferred on it to take any measures by virtue of being the appropriate court of a contracting state, the document commencing the appropriate proceedings in accordance with these Rules:

(i) must additionally be entitled in the matter of the provision of the Convention in accordance with which the Court is asked to exercise jurisdiction, and

(ii) must additionally have appended a copy of any relevant request in writing made by the competent authority of another contracting state, together with a certified translation, where necessary, into Irish or English, or

(iii) must otherwise set out the basis on which the request to exercise jurisdiction is made.

 

45 Exchange of views

45. The Court may give such directions to the Central Authority as are appropriate to facilitate participation in any exchange of views referred to manner and by such means as the Court considers most suitable to meet the purposes of the Convention.

 

46 Orders under Article 11 and Article 12 of the Convention

46. (1) In any case where the Court has made an order under Article 11 of the Convention, the Court may direct the Central Authority to notify the Central Authority of another contracting state of the making of that order and may direct the first-mentioned Central Authority to make inquiries of the Central Authority of another contracting state as to whether measures referred to in paragraph 2 of Article 11 of the Convention have been taken and, if so, as to the content of those measures.

(2) In any case where the Court has been asked to make an order under Article 12 of the Convention, the Court may direct the Central Authority:

(a) to make inquiries of the Central Authority of another contracting state as to whether any measures have been taken by the authorities having jurisdiction under Articles 5 to 10 of the Convention and, if so, as to the content of those measures;

(b) to make inquiries of the Central Authority of another contracting state as to whether a decision (in respect of the measures of protection which may be required by the situation) referred to in paragraph 2 of Article 12 of the Convention has been taken and, if so, as to the content of that decision; or

(c) to notify the Central Authority of another contracting state of the making by the Court of an order under Article 12 of the Convention.

(3) For the purpose of enabling the Court to record that measures taken in accordance with Article 11 of the Convention have lapsed, the moving party in any proceedings to which sub-rule (1) applies in which measures were taken by the Court in accordance with Article 11 of the Convention must promptly notify the Clerk in writing as soon as the authorities which have jurisdiction under Articles 5 to 10 of the Convention have taken the measures required by the situation or, as the case may be, as soon as the measures required by the situation and taken by the authorities of another state are recognised by the contracting state in question.

(4) For the purpose of enabling the Court to record that measures taken in accordance with Article 12 of the Convention have lapsed, the moving party in any proceedings to which sub-rule (2) applies in which measures were taken by the Court in accordance with Article 12 of the Convention must promptly notify the Clerk in writing as soon as the authorities which have jurisdiction under Articles 5 to 10 of the Convention have taken a decision in respect of the measures of protection which may be required by the situation or, as the case may be, as soon as the measures required by the situation and taken by the authorities of another state are recognised by the contracting state in question.

(5) Where the moving party fails promptly to notify the Clerk in accordance with sub-rule (3) or sub-rule (4), the respondent or any other person sufficiently interested may make the necessary notification.

 

47 Adjournment to make request under Article 34

47. Without limiting any other power of the Court, the Court may adjourn proceedings under the 2000 Act for the purpose of making a request under Article 34 of the Convention.

 

48 Request under Article 24

48. (1) A request to the Court by an interested party (in accordance with section 3(2) of the 2000 Act) pursuant to Article 24 of the Convention to decide on the recognition or non-recognition of a measure taken in another contracting state and/or pursuant to Article 26 of the Convention that a measure be declared enforceable or registered for the purpose of enforcement in the State may at the election of the applicant, be made ex parte in the first instance subject to the prior filing with the Clerk of a notice in the Form 41B.17, Schedule C, or otherwise must be made on notice to the respondent by the issue and service on the respondent at least 4 days prior to the date fixed for the hearing of a notice in the Form 41B.17, Schedule C.

(2) An application for such recognition and/or enforcement must be grounded on an affidavit which:

(a) exhibits the judgment or decision (in this rule referred to as the “decision”) constituting or recording the measure concerned or a certified or otherwise duly authenticated copy thereof (together with a certified translation, where necessary, into Irish or English) and

(b) where necessary, states the name of the authority in the contracting state concerned and the date on which and place at which the measure was given or ordered, and

(c) explains concisely the nature and effect of the measure and

(d) sets out or verifies (or which exhibits and verifies documents which set out):

(i) the full name, address and date and place of birth (where available) of each child to whom the measure relates;

(ii) the full name, address and date and place of birth (where available) of each person who has, in relation to each such child, rights and/or obligations of a kind mentioned in Article 3 of the Convention;

(iii) where the request concerns the enforcement of a measure concerning access:

(I) the practical arrangements for exercise of rights of access (to the extent stated in the decision), including date and time, start, end and place;

(II) any specific obligations on the holders of parental responsibility;

(III) any specific obligations on the person with a right of access;

(IV) any restrictions attached to the exercise of rights of access;

(iv) the jurisdiction of the authority concerned to take the measure by reference to Chapter II of the Convention and, where relevant, any findings of fact on which the authority of the contracting state where the measure was taken based its jurisdiction;

(v) whether the child concerned was given the opportunity to be heard, or where relevant, that the measure was taken in a case of urgency;

(vi) whether any person having parental responsibility in respect of the child concerned was given the opportunity to be heard, or where relevant, that the measure was taken in a case of urgency;

(vii) where relevant, whether any measure in respect of the child concerned has been taken in a non-contracting state of the habitual residence of the child;

(viii) where relevant, that the procedure provided in Article 33 of the Convention has been complied with;

(ix) documents which establish that, according to the law of the contracting state in which it has been given, the measure is enforceable;

(x) where applicable, the grounds on which the right to request recognition or non-recognition or that a measure be declared enforceable or registered for the purpose of enforcement is vested in the party making the application.

49 Where evidence not produced

49. Where the party applying under rule 48 does not produce the evidence or documents referred to in rule 48, the Court may:

(a) adjourn the application to allow the applicant an opportunity to produce that evidence or those documents, or

(b) accept equivalent evidence or documents, including by way of oral evidence, or

(c) dispense with the production of such evidence or documents.

 

50 Enforcement, setting aside and discharge of order

50. (1) The order of the Court granting a request to decide on the recognition of a measure taken in another contracting state and/or that a measure be declared enforceable or registered for the purpose of enforcement in the State is, subject to sub-rule (2), enforceable for all purposes in accordance with these Rules.

(2) The Court may direct the service by such means as it directs of the order on any person who it appears to the Court may be affected by the making of the order and may stay the operation of the order for a specified period.

(3) Any application consistent with the requirements of the Convention to set aside or discharge such an order must, unless the Court otherwise directs, be preceded by the issue and service on the original applicant of a notice (or, as the case may be, on every person on whom the Court’s order has been served) in the Form 41B.18, Schedule C, and the original notice must, unless the Court otherwise allows, be filed with the Clerk at least two days before the return date of the application.

(4) An application under sub-rule (3) must, unless the Court otherwise permits, be brought:

(a) by a person served with the order in the State, within one month of such service, or

(b) by a person served with the order in another contracting state, within two months of such service.

(5) The Court may stay the enforcement of the order, on such terms as it sees fit, where such an application is made.

(6) The original applicant must apply promptly to the Court to set aside or discharge an order made in accordance with rule 48 where the measure to which that order relates (in this rule referred to as the “measure concerned”) has been set aside or discharged by the authority in the contracting state concerned, or another measure inconsistent with the measure concerned or otherwise affecting the measure concerned taken by the authority of a contracting state having jurisdiction to do so. In such a case, the application to the Court must be grounded on an affidavit:

(a) which exhibits any document containing or recording the measure setting aside or discharging the measure concerned or, as the case may be, any document containing or recording another measure inconsistent with the measure concerned or otherwise affecting the measure concerned, or a certified or otherwise duly authenticated copy of any such document, together with a certified translation thereof, where necessary, into Irish or English, and

(b) which states, where necessary, the name of the authority in the contracting state concerned and the date on which and place at which the measure concerned was set aside or discharged or another measure was taken inconsistent with the measure concerned or otherwise affecting the measure concerned, and which explains concisely the nature and effect of the same.

(7) The original applicant must apply promptly to the Court to set aside or discharge, as appropriate, an order made in accordance with sub-rule (1) where the measure concerned has been varied by the authority in the contracting state concerned. Any interested party may make a further request to the Court in relation to the variation in accordance with section 3(2) of the 2000 Act and rule 37.

(8) Where the original applicant fails to apply promptly to the Court in a case to which sub-rule (6) or sub-rule (7) applies, the original respondent or any other person sufficiently interested may make the necessary application to the Court.

(9) An application to which sub-rule (3) or (6) applies must be heard and decided on affidavit, but the Court may receive oral evidence of any matter to which the application relates, as it considers necessary.

 

51 Certificate under section 6 of 2000 Act

51. (1) A certificate of the Court for the purposes of section 6 of the 2000 Act (in the Form 41B.19, Schedule C) must be provided on application in writing to the Clerk for that purpose. Where appropriate, certified copies of any relevant order of the Court in the proceedings and of any document filed as proof of service in the proceedings may be appended to the certificate.

(2) Where the applicant (or an authority of another contracting state) requests further particulars of the proceedings to which the certificate relates, the Clerk, having consulted with the Judge, and subject to Article 37 of the Convention, may certify such further particulars.

 

52 Application of Order 58, rules 3 and 10 to 13 inclusive

52. The provisions of Order 58, rules 3 and 10 to 13 inclusive, apply with any necessary modifications to proceedings under the 2000 Act and reference to “the Act” in those rules must be read, for these purposes, as a reference to the 2000 Act.

Amendment to Order 41B

S.I. No. 617 of 2015:

District Court (Jurisdiction and the Recognition and Enforcement of Judgments in Civil or Commercial Matters) Rules 2015

1. (1) These Rules, which shall come into operation on the 30th day of December 2015, may be cited as the District Court (Jurisdiction and the Recognition and Enforcement of Judgments in Civil or Commercial Matters) Rules 2015.

(2) These Rules shall be construed together with the District Court Rules 1997 (S.I. No. 93 of 1997) and all other District Court Rules.

(3) The District Court Rules as amended by these Rules may be cited as the District Court Rules 1997 to 2015.

(4) Notwithstanding the commencement of these Rules, any application to the District Court concerning:

(i) a judgment given in legal proceedings instituted in a Member State of the European Union (other than the State) before 10 January 2015;

(ii) an authentic instrument formally drawn up or registered before 10 January 2015, or

(iii) a court settlement approved or concluded before 10 January 2015,

which falls within the scope of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and enforcement of judgments in civil and commercial matters may be commenced, continued and determined as if these Rules had not come into force.

2. The District Court Rules are amended:

(i) by the substitution for the title of Order 41B of the following title:

“ORDER 41B

SERVICE OF DOCUMENTS OUTSIDE THE STATE WITHOUT THE PERMISSION OF THE COURT

RECOGNITION AND ENFORCEMENT IN THE STATE OF CERTAIN JUDGMENTS GIVEN IN OTHER EU MEMBER STATES AND CERTAIN OTHER STATES

REGULATION (EC) NO 1215/2012 ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS (RECAST) (the “Jurisdiction Regulation”)

THE BRUSSELS CONVENTION OF THE EUROPEAN COMMUNITIES ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS, 1968 (the “Brussels Convention”)

THE LUGANO CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BETWEEN MEMBER STATES OF THE EUROPEAN COMMUNITIES AND THE EUROPEAN FREE TRADE ASSOCIATION, 2007 (the “Lugano Convention”)

REGULATION (EC) 4/2009 OF 18 DECEMBER 2008 ON JURISDICTION, APPLICABLE LAW, RECOGNITION AND ENFORCEMENT OF DECISIONS AND COOPERATION IN MATTERS RELATING TO MAINTENANCE OBLIGATIONS (the “Maintenance Regulation”)

THE ROME CONVENTION BETWEEN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES ON THE SIMPLIFICATION OF PROCEDURES FOR THE RECOVERY OF MAINTENANCE PAYMENTS (the “Rome Convention”) AND THE MAINTENANCE ACT 1994

THE NEW YORK CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE (the “New York Convention”) AND THE MAINTENANCE ACT 1994

THE HAGUE CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN 1996 (the “Hague Child Convention”)”

(ii) by the substitution in Order 41B, rule 1(1) for the definition of the “Jurisdiction Regulation” of the following definition:

“the “Jurisdiction Regulation” means Regulation (EC) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (O.J. L. 351/1 of 20 December 2012);”

(iii) by the substitution for Order 41B, rules 2 and 3 of the following rules respectively:

“2 Venue in cross-border insurance matters

2. When it is proposed to bring proceedings before the District Court by virtue of:

(a) Article 11 of the Jurisdiction Regulation, or

(b) Article 9 of the Lugano Convention, or

(c) Article 8.2 of the Brussels Convention,

(all of which relate to insurance matters) against an insurer domiciled in a Member State or Contracting State other than the State and the policy-holder is domiciled in the State, the proceedings may be brought, heard and determined at any sitting of the Court for the transaction of civil business for the Court area in which the policy-holder is ordinarily resident or carries on any profession, business or occupation.

3 Venue in cross-border consumer contract claims

3. When a consumer who is domiciled in the State proposes to bring proceedings before the District Court by virtue of:

(a) Article 18 of the Jurisdiction Regulation, or

(b) Article 16 of the Lugano Convention, or

(c) Article 14 of the Brussels Convention

(all of which relate to consumer contracts) against the other party to a contract and that other party is domiciled in a Member State or Contracting State other than the State, the proceedings may be brought, heard and determined at any sitting of the Court for the transaction of civil business for the Court area in which the consumer is ordinarily resident or carries on any profession, business or occupation.”

(iv) by the substitution for rule 7 of Order 41B of the following rule:

“7. Where, in proceedings to which rule 5 or rule 6 relates, a respondent intends to appear or to be represented at the hearing for the purpose of:

(a) defending the proceedings and/or,

(b) by virtue of Article 26 of the Jurisdiction Regulation; Article 24 of the Lugano Convention, or Article 18 of the Brussels Convention for the purpose of contesting the jurisdiction of the Court,

the respondent or respondent’s solicitor must file:

(i) in proceedings begun by claim notice, an appearance; or

(ii) in proceedings begun by civil summons or other document, a notice of appearance and intention to defend

so soon as to reach the Clerk within the period of five weeks or, as the case may be, six weeks, prescribed by rule 5(6) and within the same period serve a copy on the claimant or claimant’s solicitor (together with a defence, where required). Where the respondent contests the jurisdiction of the Court, the appearance must include a statement to that effect.”;

(v) by the substitution for paragraph (e) of sub-rule (4) of rule 8 of Order 41B of the following paragraph:

“(e) that the respondent has been able to receive the document beginning the proceedings or notice in sufficient time to enable him or her to arrange for his or her defence, or all necessary steps have been taken to this end, as required by Article 28 of the Jurisdiction Regulation; Article 26 of the Lugano Convention or, as the case may be, Article 20 of the Brussels Convention.”;

(vi) by the substitution for Order 41B, rules 9 and 10 of the following rules respectively:

“9 Enforcement of judgments abroad: provision of documents

9. (1) An interested party who, for the purposes of Articles 53 and 54 of the Lugano Convention or, as the case may be, Articles 46 and 47 of the Brussels Convention, requests the provision of the documents mentioned in section 14 of the 1998 Act in respect of a judgment given in the District Court, must lodge with the Clerk for the Court area in which the judgment was given –

(a) an original and two copies of the judgment duly completed,

(b) a certificate in duplicate in the Form 41B.03 Schedule C, and

(c) where appropriate, an original and copy or copies of the document or documents establishing that notice of the institution of proceedings was served on the respondent.

(2) When the judgment has been signed by the Judge and served in accordance with the provisions of rule 10, the Clerk must give to the party requesting them a duly authenticated copy of the judgment, a certificate in the Form 41B.03 Schedule C and a certified true copy or copies of the document or documents referred to in sub-rule 1(c), and must retain the other documents in his or her custody.

 

10 Service of judgment and proof of service

10. (1) Where, for the purposes of Article 43 of the Jurisdiction Regulation, Article 53 of the Lugano Convention or, as the case may be, Article 47 of the Brussels Convention, it is necessary to serve on a respondent a judgment given at a sitting of the District Court, service must be effected by or on behalf of the claimant in accordance with the provisions of the Service Regulation or the Hague Convention and this Part.

(2) When service has been effected and duly certified, the certificate of service or, where appropriate, the certificate of posting, statutory declaration as to service and the advice of delivery form, must be lodged with the Clerk for retention with the original judgment.

(3) On the request of a party applying for enforcement of a judgment for the provision of the documents referred to in Article 47.1 of the Brussels Convention, the Clerk must give to that party a certificate in the Form 41B.04 Schedule C (with any necessary modifications) and a certified copy or copies of the relevant document or documents lodged under sub-rule (2).

(4) On the request of a party applying for enforcement of a judgment for the provision of the certificate referred to in Article 53 of the Jurisdiction Regulation, the Clerk must give to that party a certificate in the form in Annex I to the Jurisdiction Regulation;

(5) On the request of a party applying for enforcement of a judgment for the provision of the certificate referred to in Article 54 of the Lugano Convention, the Clerk must give to that party a certificate in the form in Annex V to the Lugano Convention (L 339/3 of 21 December 2007),

(…)

District Court (Mediation) Rules 2018

1. (1) These Rules, which shall come into operation on the 22nd day of January 2018, may be cited as the District Court (Mediation) Rules 2018.

(2) These Rules shall be construed together with the District Court Rules 1997 (S.I. No. 93 of 1997) and all other District Court Rules.

(3) The District Court Rules as amended by these Rules may be cited as the District Court Rules 1997 to 2018.

2. The District Court Rules 1997 (S.I. No. 93 of 1997) are amended:

(…)

(v) by the substitution for rule 9 of Order 58 of the following rule:

“9. (1) A notice or court order required by this Order to be served shall be accompanied in the case of a notice of proceedings under section 6A (inserted by the Act of 1997) of the Act, section 11 of the Act or section 11B (inserted by the Act of 1997) of the Act, in which a solicitor is acting for the applicant, by a statutory declaration of the solicitor indicating, if it be the case, that the solicitor has complied with subsection (2) of section 20 of the Act of 1964 (as inserted by section 11 of the Act of 1997) in relation to the matter, and may be served upon the person to whom it is directed in accordance with the pro visions of Order 41 at least 14 days or, in the case of proceedings certified as urgent under rule 2(2), at least two days, before the date of the sitting of the Court to which it is returnable.

(2) Save where service has been affected by the Clerk, the original of every such notice or order served shall, accompanied, in appropriate cases, by a copy of the statutory declaration described in rule 9(1), together with a statutory declaration as to service thereof, be lodged with the Clerk at least two days before the date of the said sitting.”

(…)

Practice Directions

DC06

Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I recast)

District Court Office Notice

Regulation (EU) No 1215/2012 (known as “Brussels I recast”), which repeals and replaces Regulation No 44/2001 (known as “Brussels I”) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, will have application from the 10th January 2015.

Rules of court to facilitate the operation of Regulation (EU) No 1215/2012 will be introduced after a statutory instrument under the European Communities Act 1972 has been signed for the purpose of giving full effect to that Regulation.

This notice is issued pending the introduction of the rules of court for the assistance of litigants and practitioners. It does not purport to be a legal interpretation of Regulation (EU) No 1215/2012  or an exhaustive statement of the requirements of that Regulation and does not constitute, nor should it be relied upon as, legal advice. Litigants and practitioners are referred to the full text of that Regulation, which may be accessed on-line at:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:351:0001:0032:en:PDF

Article 66 of Regulation (EU) No 1215/2012 provides:

“1. This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015.

2. Notwithstanding Article 80, Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation.”

Article 80 provides:

“This Regulation shall repeal Regulation (EC) No 44/2001. References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in Annex III.”

Annex III (pages 29 – 32) of Regulation (EU) No 1215/2012 contains a table correlating the Articles of that Regulation to the Articles of Regulation No 44/2001 which they replace (whether wholly or in part).

For the assistance of litigants and practitioners, reference is made below to relevant provisions of the existing District Court Rules. References in those provisions to Regulation (EC) No 44/2001 should be read, in relation to proceedings affected, as references to Regulation (EU) No 1215/2012.

Litigants and practitioners should, as regards

(a) civil or commercial proceedings falling within the scope of Regulation (EU) No 1215/2012 (as to which see Articles 1 to 3 of Regulation (EU) No 1215/2012) which the High Court has jurisdiction to hear and determine by virtue of Regulation (EU) No 1215/2012 or

(b) the enforcement in Ireland of a judgment given in a civil or commercial matter by a court in another EU Member State in proceedings commenced on or after 10th January 2015, or of an authentic instrument formally drawn up or registered or a court settlement approved or concluded on or after that date,

have regard in particular to the following:

1. The notice of the document commencing proceedings (Form 41B.01, Schedule C, District Court Rules (“DCR”) and Order 41B, rule 5(2), DCR) should be entitled “In the matter of Article 26(1) of Council Regulation (EC) No. 1215/2012” and should include the following indorsement immediately following the particulars of claim (taken from the claim notice or other relevant originating document):

“If you are sued in the capacity of the policyholder, the insured, or a beneficiary under an insurance contract; the injured party; a consumer or an employee:

(i) you have a right to contest the jurisdiction of this Court and if you wish to do so, you must give, or send by post, to the claimant or claimant’s solicitor at the address for service mentioned above an appearance contesting jurisdiction and a defence in Form 42.01, Schedule C of the District Court Rules, not later than five weeks [six weeks where the document is to be served in any non-European territory of another member State] after the service on you of this claim notice, and at the same time file a copy of your appearance contesting jurisdiction with the District Court Clerk at the address below, and

(ii) if you file an unconditional appearance, this Court has jurisdiction under Article 26 (1) of Regulation No. 1215/2012, and

(iii) if you do not file an appearance, judgment may be given in default against you.”

2. The certificate as to jurisdiction required by Order 41B, rule 5(3), DCR, (in Form 41.B.02, Schedule C, DCR) should be entitled “In the matter of Council Regulation (EC) 1215/2012 (the “Jurisdiction Regulation”)” and in Recital No. 2 should certify the basis of jurisdiction by reference to the provisions of Regulation No. 1215/2012.

3. Where a respondent intends to appear to be represented for the purposes of contesting the jurisdiction of the court by virtue of Article 26 of Regulation No. 1215/2012 and/or defending the proceedings, the respondent or respondent’s solicitor should as heretofore file an appearance and defence (in proceedings begun by claim notice) or a notice of appearance and intention to defend (in proceedings begun by civil summons or other document) and serve a copy on the claimant or the claimant’s solicitor within the period prescribed by Order 41B, rule 7, DCR.

4. Where the respondent has not filed an appearance, a claimant applying for judgment by default should show to the satisfaction of the court:

(i) that each claim made in the document instituting proceedings is one which, by virtue of the provisions of Regulation No. 1215/2012, the court has jurisdiction to hear and determine (see Order 41B, rule 8(4)(a), DCR) and

(ii) the matters required by Order 41B, rule 8(4)(b), (c), and (d), DCR as heretofore, and

(iii) that the respondent has been able to receive the document beginning the proceedings or notice of same in sufficient time to enable him or her to arrange for his or her defence or all necessary steps have been taken to this end as required by Article 28 of Regulation No. 1215/2012 (see Order 41B, rule 8(4)(e), DCR).

5. A draft certificate of enforceability of a judgment lodged for issue in accordance with Order 41B, rule 9(1), DCR (in Form 41.B.03, Schedule C, DCR) should be entitled “In the matter of Council Regulation (EC) 1215/2012 (the “Jurisdiction Regulation”)” and in Recital No. 5 should state the particular provision or provisions of Regulation No. 1215/2012 by which the court assumed jurisdiction.

6. Where an application is made for the issue of a summons in accordance with section 15 of the Enforcement of Court Orders Act 1926 for the purpose of enforcing a judgment, authentic instrument or court settlement to which Article 39 of Regulation No. 1215/2012 applies, the applicant should exhibit to the statutory declaration supporting the application (Form 51A.03 Schedule C, DCR) the documents required by Article 42 of Regulation No. 1215/2012, and include in the statutory declaration evidence of service of the certificate issued by the court of origin pursuant to Article 53 of Regulation No. 1215/2012 in the manner provided by Article 43 of Regulation No. 1215/2012 (This is a new requirement arising from the provisions of Regulation No. 1215/2012 in cases where an order giving liberty to enforce is no longer required).

Circuit & District Court Operations
9th January 2015.

District Court

Pages: 1 2

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