Types of Orders

Nature of Judgement

The words judgement and order are often used interchangeably. An order may refer to any order made in the course of proceedings. A judgement usually refers to the final order and may refer to a reasoned decision in relation to the final order.

A judgment or order in the broader sense, includes all decisions by the judge, master or registrar on questions and issues that arise between the parties in course of proceedings.  In the present context, judgments and orders refer to final orders in civil cases, which decide the claim in dispute between the parties.

There is distinction between a judgment “in personam” and a judgment “in rem”.  In the vast majority of cases, the judgment is “in personam” and binds the parties to the dispute only.  A judgment in rem determines the status of a person or thing or the transfer of a thing.  This is in contrast to a judgment on the interests of a  party to litigation in that thing.

All judgments that are not “in rem” are judgments in personam. A judgment in personam (between parties)  decides the rights of parties as between each other in relation to the particular matter in dispute.  This may be a civil claim such as in tort or for breach of contract. It may relate to property.

A judgment or order may be given at the trial or hearing of an action, or on an appeal.  In may be given in the case of an action commenced by writ / summons, as a result of the consent of the parties, admissions, on default of appearance or defence or after trial of the matter.

Final and Interlocutory

A judgment or order which determines the matter in question may be referred to as a final judgment or order. A final judgment or order is that by which a pre-existing right, obligation or liability or its absence, is ascertained, established and definitively determined.  An order may be final, although it is subject to appeal.  It may be final even though it directs further enquires or deals only with costs.

A judgment dismissing an action may be final but it may given subject to a direction that dismissal is without prejudice to the claimant’s right to bring another action.

An order which does not deal with the final and ultimate rights and obligations of the parties, usually made before the judgment and the  final decision on the matter in dispute, is referred to as an interlocutory order. Such orders and determinations commonly deal with matters of interim measures and procedural steps.

In almost all cases, there is a right of appeal from a final judgment to an appeal court.  Generally, there is no right of appeal against an interlocutory order without leave of the court or the appellate (appeal) court.

Declaratory

A declaratory judgment declares the rights of the parties, without making a specific order against one or other.  The court may make a binding declaration of rights. It has a general power to make a declaration at the instance of a party who is interested in the subject matter of the declaration, notwithstanding that no application for relief has been made or that it has been abandoned or refused.

The declaration must relate to some legal right and confer a benefit on the claimant.  It may not be given where statutory remedies are prescribed and do not include a declaration.  A declaration may be appropriate if damages alone are not adequate.

The power to make a declaratory judgment is discretionary.  It must be exercised judiciously and with due care and caution, having regard to the circumstances.  It should not be granted unless all the appropriate parties are before the court.

A declaratory judgment may be appropriate against a public or State body.  Formerly, no injunction or order would issue against the Crown. In these cases, declaratory orders were appropriate given the duty of public organs to observe a law.  Declaratory order remain an important feature of litigation against public bodies, notwithstanding the almost total erosion of State immunity. Public bodies, being creatures of law, are inherently bound to observe the law.

Default Judgement

In certain classes of case, judgment may be obtained in default of appearance or defence, as of right.  A final judgment may be thereby given in a claim for liquidated demand.   These are principally cases arising from debts and other claims for liquidated fixed / predetermined or determinable sum.  Where the claim is for unliquidated damages only or detention of goods, an interlocutory judgment may be entered subject to assessment of damages.

In cases where a right to judgment in default of appearance is not allowed as a right, leave of the court is required for final judgment in default, in the following cases:

• action by a moneylender;
• Consumer credit cases;
• action relating to mortgages including for possession, redemption or conveyance;
• Civil proceedings against the State.

In some cases where a judgment in default of appearance is not given as a right, a judgment may, by leave of the court, be entered on proof that the defendant is in default of appearance.

If the claim is for a debt or liquidated sum, final judgment may be entered on expiration of the time for entry of a defence.  Warnings are required. See the sections on default judgments. If the claim is for unliquidated damages  or for detention of goods, an interlocutory judgment may be made in favour of the claimant, with an order for assessment of damages.

In other cases, where the defendant has appeared,  but has not filed a defence, the claimant may set down a motion for judgment and obtain judgment in accordance with his statement of claim.  The statement of claim must be consistent with the initiating writ/summons.  The claim must not be against an infants or a person of unsound mind.  In the alternative, a claimant may set the action down for trial, notwithstanding default of defence.  This will be necessary if oral evidence is required to establish the claim.

If the claim is for both unliquidated and liquidated amounts, a final order may be made in respect of the liquidated amount and an interlocutory order may be made in respect of the unliquidated sum, to be assessed on motion or at an undefended hearing.

Where a defence applies to part of a claim only, the claimant may with leave of the court, enter final and interlocutory judgment as the case, may be in respect of the undefended part of the claim.

Where leave is not required, the claimant may apply to the court offices with the appropriate affidavits and seek judgment in the court offices.

Where issues have been order to be tried or determined in any matter, the claimant may issue  a motion for judgment after the issues have been determined.

Rights to Set Aside Default Judgment

2021/2022 Revisions have changed the rules of court to allow for the possibility of judgement being set aside by the party who has not appeared at trial.  See generally the sections on default judgements where the principles also apply.

If a party obtains an order or judgement where the other party has not appeared, he must give a copy of the order giving judgement within 28 days of being finalised. The other party may apply within 28 days to set aside the order. Certain fixed costs are payable. The time limit for setting aside may be extended in exceptional circumstances.

A party who obtains any verdict, order or judgment where any other party has not appeared at the trial shall serve on the party who has not appeared a copy of the order of the Court granting judgment within 28 days from the passing and perfection of such order. The  verdict, order or judgment may be set aside by the Court upon such terms as may seem fit, upon an application made no later than 28 days after such service of a copy of that order

Interlocutory Orders

An interlocutory order is an order  that is not a final order. In many proceedings interlocutory orders may be made in relation to routine matters such as discovery. There may be an interlocutory order by way of an injunction. An interlocutory order does not finalise the dispute and is not subject to the same principle of res judicata (finality).

The courts may vary and amend an interlocutory order. This is so even if the order has been made by consent. However the court will not readily allow a matter the subject of an interlocutory order to be re-litigated. Under the court rules an application may be made to vary an order for discovery where it is unreasonable in the circumstances.

Where any of the parties to a motion on notice fails to attend, the Court may proceed in the absence of such party.

Setting Aside Non-Appearance

A party who obtains an order against another party who did not appear on the hearing of original motion shall serve a copy of the Court’s order on the party who did not appear within 28 days from the passing and perfection of such order.

An application to set aside such order, upon such terms as the Court sees fit, may be made no later than 28 days after service of a copy of that order. The original motion shall not be reheard unless the Court is satisfied that the party failing to attend on the hearing of the original motion was not guilty of wilful delay or negligence.

Where the Court determines that it will rehear the original motion, the costs occasioned by the non-attendance at the first hearing shall be in the discretion of the Court, which may fix the same at the time, and may direct them to be paid by the party concerned or his solicitor before he shall be permitted to have the original motion reheard, or may make such other order as to such costs as it thinks just.