Trial & Judgment

Witness Summons

A party desiring the attendance of any person to give evidence or produce any books, papers or documents in Court, may apply to the  Clerk for a witness summons requiring the person to attend at the place and time specified for the hearing.

A witness summons directed against an Officer of the State to attend and produce any books, papers and documents to the Court requires a Court order.  In the case of difficulty regarding the issue of a witnesses summons, application may be made to Court for an appropriate order.

A witness summons must be served personally or by registered post unless the Court otherwise directs. If the Court is of the opinion that the witness was not given reasonable time to enable him appear or that his reasonable expenses of attending have not been paid or offered to him, the Court may set aside or disregard the witness summons.

A witness summons, may be served and directed to, more than one person.

Where a witness summons requires a witness to attend and produce papers, documents and books to the Court, it may be directed to one person only, except in the case of partners. However, attendance of one member of the firm suffices to comply.

An Officer of Court who is required by a witness summons to attend with records or documents outside the Court district in which he is serving, may require the person requiring his attendance to deposit a sufficient sum of money to answer his reasonable charges and expenses for attendance and undertake to pay any further charges and expenses which may not be fully met by the deposit.

Where a witness has been duly served with a witness summons and fails without  lawful excuse to attend, give evidence, produce papers and documents or fails to attend throughout the hearing, then unless he has been excused, he may be fined by the Court or may be subject to such other order as the Court thinks just.

An application for a direction that a party participate by video conferencing may be made on notice.  It may be made in case management directions by the Court.

Mediation and Conciliation

The Court, on the application of either party or of its own motion, where it considers it appropriate and having regard to all the circumstances of the case, may order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient and invite the parties to enter an ADR process to settle or determine the proceedings and issue, or where the parties consent, refer the proceedings or issue to such process.  The Court may, for the purpose of such invitation or reference, invite the parties to attend such information session on the use of mediation, as the Court may specify.

Where the parties decide to use an ADR process, the Court may make an order extending the time for compliance by any party with any provision of the rules or any order of the Court in the proceedings.  It may make such further orders or give such further directions as the Court considers will facilitate the effective use of that process.

An application for an adjournment to facilitate ADR, may be made by a motion to the other party, or may be made without such motion when proceedings are before the Court, including at a case management hearing.

If all the parties to a proceeding consent to an ADR process on the terms of an order to be made, and including an order for the final disposition of proceedings, the Court may make such order.

Notwithstanding other rules, if a proceeding is referred to an ADR process, the time for taking any step in a proceeding under the Rules must be calculated as if time did not run during the period of adjournment to facilitate the ADR process.

Hearing

The court may hear two or more claims together on such terms as it considers just.  A counterclaim may be proceeded with separately. In this event, it may be treated as a claim, even if the original claim is withdrawn, stayed or dismissed.

A witness who is not party may be ordered by the court to leave the court until his evidence is required; or after his evidence has been give, or to remain in Court after his evidence has been given, until the trial is terminated or adjourned.

Judgment may be recorded for one or more claimants or against or in favour of one or more respondents.  There are prescribed forms of judgment.

The Judge may, if he or she thinks fit, in the interests of justice, postpone or adjourn a trial for such time and on such terms, as he thinks just.

Where a case is called in court and the claimant appears and the respondent does not appear, the claimant may prove his claim in so far as the burden of proof lies on him.  If, the respondent appears and the claimant does not appear, the respondent, if he or she has no counterclaim, is entitled to judgment dismissing the claim.  If he has a counterclaim, he may prove the counterclaim in so far as the burden of proof lies on him.

Proof of Facts

Unless otherwise agreed in writing by the parties to proceedings or as provided by the Rules of Court or the Law of Evidence, witnesses at the trial of any claim must be examined orally on oath in open Court.

The court may, at any time for such reasons as it thinks fit  order that a particular fact may be proved by affidavit or that the affidavit of a witness be read at the hearing or trial on such conditions, as the Court thinks reasonable.  Such an order may not be made where it appears to the Court that the other party in good faith requires the production of the witness for cross examination and that witness can be produced.

Documents put in evidence must be marked by an Officer of the Court.  Subject to the Court\’s direction, a party who tenders evidence is entitled to its return.

In any case, when it appears necessary in the interest of justice, the Court may make an order that a witness or other person be examined on oath. An order may permit a party to the proceedings to give the examination or deposition in evidence in the proceedings, on such terms as the court directs.

Judgment

When a Court has pronounced a judgment or made an order, it may order the time and times when, and by what instalments, the debt or damages or costs of the judgment or the amount stated in the order must be paid.  If an order for instalments is made, no order for execution may issue against the respondent until after default of payment or default of some instalment according to the order.

The court may stay execution on foot of any judgment or order for such period and on such terms as the Court considers just.

The Court may give judgment on the claim; dismiss the claim on the merits or without prejudice to the claimant’s right to proceed, by a new claim notice.

Where a claim was previously dismissed without prejudice, the claimant may not proceed until the cost due on foot of that order have been paid to the respondent.

If cross judgments are made in the same matter, between the same parties and there are at the same time unexecuted or only partially executed judgments of the Court between the same parties, the Court may, on the application of either party, order that the judgments be set off against each other.  The Court may order that a judgment issue only in respect of the larger sum due, net of the smaller sum.

A respondent who is not represented by a solicitor or a counsel may consent to a judgment being made against him.  The respondent must sign a consent which must be proved either in open Court or by affidavit verifying its execution. The court may give a judgment in accordance with the consent.

Interest on the recovery of a sum over €190.46, carries interest at the rate specified for the time being under the Debtors (Ireland) Act 1840.

Judgment in Default

Where a respondent served with a claim notice in a debt claim does not file an appearance or serve a defence within the time prescribed, the claimant may apply for an order for judgment in default. The application may be filed with the District Court Clerk.  It must be accompanied by proof of service, an affidavit proving the debt, a certificate that there has been no appearance and a form of judgment.

Government Departments and certain other State bodies may give a certificate of the amount due in lieu of an affidavit.  A consent to judgment may be filed in lieu of an affidavit of debt.

Where the claim is served abroad, a judgment in default may not be given until the Court is satisfied that the provisions of either the relevant EU Service Regulation or Hague Convention, have been complied with.  Evidence of compliance may be given by affidavit.

If an application is made for judgment in default, an order may be made otherwise than at a sitting of a Court by the Judge. The costs and interest are in accordance with the Schedule of Costs and the general provision in relation to interest.

Referral to Court

If the Judge is not satisfied that such an order should be made, the Judge must, refer the matter to the Court for decision. The application must be then assigned a court date for hearing before the Court.

On application to the Court,

• an order may be made as sought in the terms of the application;
• further affidavits may be required;
• directions may be given;
• refuse to make the order sought in the application; or
•  make any other order it considers appropriate.

If the Court  directs a further affidavit or affidavits to be filed, the Court may make a peremptory order which is effective on the filing of such affidavit or affidavits, without the application being heard again before the Court. The Clerk must notify the claimant of an order made by the Judge in any decision or order of the Court, if the matter is referred to the Court.

Default Judgement Issues

A claimant who obtains an order for judgment in default against the respondent may enforce the order and continue the proceeding against any other respondent.  If the claimant recovers by enforcement, the  full amount of his claim against any respondent, further proceedings must be stayed save in respect of any further costs as may be claimed against the other respondent.

If a respondent serves a counterclaim which is a debt claim, the above provisions apply as if the respondent were the claimant and the claimant were the respondent. Reference to an appearance refer to an appearance to the counterclaim.

A party against whom a judgment in default has been obtained may make application to the Court to vary the judgment or set it aside on the ground that it was obtained by fraud, misrepresentation, surprise, mistake or other sufficient ground. The service of the notice of motion to set the judgment inside does not operate as a stay on enforcement, unless the respondent lodges the amount of the judgment and the amount fixed for costs..

Default Judgment in Non-Debt Claims

Where in a non-debt claim, the respondent does not serve and file an appearance or defence; the claimant may apply for judgment in default by motion on notice to the respondent.  Before issuing a notice of motion for judgment, the claimant must at least 14 days before issue of motion, write to the respondent giving him notice of his intention to serve a motion for judgment and consenting to the late entry of appearance and defence within 14 days of the date of that letter.

If the appearance and defence is not served within 14 days, the claimant may issue a motion for judgment with return date not less than 14 days from the date of the service of the notice of motion. The  application must be supported by evidence of service of the claim, a certificate endorsed on the affidavit that there has been no appearance, an affidavit verifying the claim notice and a form of judgment.  Copy of the affidavit verifying the claim must be served on the respondent with the notice of motion.

If after the service of motion for the judgment, the respondent delivers a defence not less than six days before the return date, the notice for a judgment must be struck out. The respondent is liable to pay the costs in accordance with the Schedule of Costs in the Rules.

Where the claim was served outside the jurisdiction under the Hague Convention on EU Service Regulations, the Court shall not give judgment unless it is satisfied that the provisions of the Regulations .or the Convention as the case may be, have been complied with.

On the return date for the application, the Court may hear the evidence as it considers appropriate and give judgment in such amount as it is satisfied is just. It may give permission to the respondent to defendant the whole or part of the claim.  It may direct further affidavits to be filed. It may adjourn the application for the hearing of further evidence.  It may refuse to make an order or make any order it considers appropriate.

If a claimant obtains a judgment in default against a respondent, it may enforce the order and continue the proceedings against other respondents.  If he recovers by enforcement, the full amount of claim including costs against any respondent, further proceedings against the remaining respondents must be stayed, save in respect of costs as may be claimed by the other respondent(s). Equivalent procedures apply in the case of a counterclaim to which there is no appearance or defence is entered.

A party against whom a judgment in default has been obtained may apply by motion to the court to set the judgment aside on the ground that it was obtained by fraud, misrepresentation, surprise, mistake or other sufficient grounds. Service of the motion does not stay the proceedings unless the respondent lodges the amount of the judgment in Court and the amount fixed for costs.

If a party fails to comply with an order made by the Court in civil proceedings, the Court may where it considers just to do, dismiss the proceedings or strike the defence or counterclaim and proceed to give judgment as if the party in default had not pleaded.

Discontinuance & Withdrawal

The claimant may before the appearance and defence is received or after it is received but before taking any other step in the proceedings, other than an interlocutory application, wholly discontinue the claim against all or any of the respondents by a written notice served on the respondents and filed with the Clerk.  He may withdraw any part or parts of the alleged cause of action by written notice.

Where a claimant serves a notice above, it must pay the respondent\’s costs of the proceedings or if the claim is not wholly discontinued, the costs occasioned by the alleged cause of action withdrawn.  This does not apply to small claims.  If not agreed, the applicable scale of costs may be determined by the court.

Discontinuance and withdrawal is not a defence to any subsequent claim other than in the above circumstances.

Other than in the above circumstances, a claim may not be withdrawn without permission of the Court.  The Court may at the trial or hearing on the claimant’s application, order or permit the claim to be discontinued or any part of the alleged claim of action to be struck out, on such terms as to costs, and as to any other action and otherwise as the Court considers just.

The respondent may apply to have all or part of his defence struck out, on such terms as to costs, as the Court considers just.

A party who has filed an appearance and defence in a proceeding may not withdraw the defence or any part of it other than with Court consent.

Where a claim which is the subject of a claim notice has been settled or compromised and does not require to proceed before the Court, the parties must produce a written consent signed by both parties or their solicitors confirming that the claim is not proceeding.

Costs

A respondent is entitled to judgment for costs in any proceedings which are wholly discontinued against him or for the costs occasioned by the matter withdrawn, if the action is not wholly discontinued, if the costs concerned are not paid within four days after their amount is agreed or fixed by the Court.

Any subsequent claim brought before payment of the costs of a discontinued claim, for the same or substantially the same cause of action, the Court may stay until the costs of the discontinued claim have been paid.

If the amount of costs is not specified in the Schedule of Costs or not agreed, the Court may, on the application of the claimant or respondent, as the case may be, determine the scale of costs to apply.  If there is no scale of cost, the Court may determine the amount of costs.