{"id":21350,"date":"2018-08-28T22:21:42","date_gmt":"2018-08-28T22:21:42","guid":{"rendered":"https:\/\/legalblog.ie\/trial-judgment\/"},"modified":"2018-08-28T22:21:42","modified_gmt":"2018-08-28T22:21:42","slug":"trial-judgment","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/trial-judgment\/","title":{"rendered":"Trial &#038; Judgment"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Witness_Summons\" title=\"Witness Summons\">Witness Summons<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Mediation_and_Conciliation\" title=\"Mediation and Conciliation\">Mediation and Conciliation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Hearing\" title=\"Hearing\">Hearing<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Proof_of_Facts\" title=\"Proof of Facts\">Proof of Facts<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Judgment\" title=\"Judgment\">Judgment<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Judgment_in_Default\" title=\"Judgment in Default\">Judgment in Default<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Referral_to_Court\" title=\"Referral to Court\">Referral to Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Default_Judgement_Issues\" title=\"Default Judgement Issues\">Default Judgement Issues<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Default_Judgment_in_Non-Debt_Claims\" title=\"Default Judgment in Non-Debt Claims\">Default Judgment in Non-Debt Claims<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Discontinuance_Withdrawal\" title=\"Discontinuance &amp; Withdrawal\">Discontinuance &amp; Withdrawal<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/trial-judgment\/#Costs\" title=\"Costs\">Costs<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Witness_Summons\"><\/span>Witness Summons<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A party desiring the attendance of any person to give evidence or produce any books, papers or documents in Court, may apply to the\u00a0 Clerk for a witness summons requiring the person to attend at the place and time specified for the hearing.<\/p>\n<p>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.\u00a0 In the case of difficulty regarding the issue of a witnesses summons, application may be made to Court for an appropriate order.<\/p>\n<p>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.<\/p>\n<p>A witness summons, may be served and directed to, more than one person.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>Where a witness has been duly served with a witness summons and fails without\u00a0 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.<\/p>\n<p>An application for a direction that a party participate by video conferencing may be made on notice.\u00a0 It may be made in case management directions by the Court.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Mediation_and_Conciliation\"><\/span>Mediation and Conciliation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>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.\u00a0 It may make such further orders or give such further directions as the Court considers will facilitate the effective use of that process.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Hearing\"><\/span>Hearing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The court may hear two or more claims together on such terms as it considers just. \u00a0A 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.<\/p>\n<p>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.<\/p>\n<p>Judgment may be recorded for one or more claimants or against or in favour of one or more respondents.\u00a0 There are prescribed forms of judgment.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 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.\u00a0 If he has a counterclaim, he may prove the counterclaim in so far as the burden of proof lies on him.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Proof_of_Facts\"><\/span>Proof of Facts<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>The court may, at any time for such reasons as it thinks fit \u00a0order 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.\u00a0 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.<\/p>\n<p>Documents put in evidence must be marked by an Officer of the Court.\u00a0 Subject to the Court\\&#8217;s direction, a party who tenders evidence is entitled to its return.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Judgment\"><\/span>Judgment<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>The court may stay execution on foot of any judgment or order for such period and on such terms as the Court considers just.<\/p>\n<p>The Court may give judgment on the claim; dismiss the claim on the merits or without prejudice to the claimant\u2019s right to proceed, by a new claim notice.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 The Court may order that a judgment issue only in respect of the larger sum due, net of the smaller sum.<\/p>\n<p>A respondent who is not represented by a solicitor or a counsel may consent to a judgment being made against him.\u00a0 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.<\/p>\n<p>Interest on the recovery of a sum over \u20ac190.46, carries interest at the rate specified for the time being under the Debtors (Ireland) Act 1840.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Judgment_in_Default\"><\/span>Judgment in Default<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>Government Departments and certain other State bodies may give a certificate of the amount due in lieu of an affidavit.\u00a0 A consent to judgment may be filed in lieu of an affidavit of debt.<\/p>\n<p>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.\u00a0 Evidence of compliance may be given by affidavit.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Referral_to_Court\"><\/span>Referral to Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>On application to the Court,<\/p>\n<ul>\n<li>an order may be made as sought in the terms of the application;<\/li>\n<li>further affidavits may be required;<\/li>\n<li>directions may be given;<\/li>\n<li>refuse to make the order sought in the application; or<\/li>\n<li>\u00a0make any other order it considers appropriate.<\/li>\n<\/ul>\n<p>If the Court \u00a0directs 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Default_Judgement_Issues\"><\/span>Default Judgement Issues<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 If the claimant recovers by enforcement, the \u00a0full 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.<\/p>\n<p>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.<\/p>\n<p>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..<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Default_Judgment_in_Non-Debt_Claims\"><\/span>Default Judgment in Non-Debt Claims<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>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 \u00a0application 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.\u00a0 Copy of the affidavit verifying the claim must be served on the respondent with the notice of motion.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 It may direct further affidavits to be filed. It may adjourn the application for the hearing of further evidence.\u00a0 It may refuse to make an order or make any order it considers appropriate.<\/p>\n<p>If a claimant obtains a judgment in default against a respondent, it may enforce the order and continue the proceedings against other respondents.\u00a0 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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Discontinuance_Withdrawal\"><\/span>Discontinuance &amp; Withdrawal<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 He may withdraw any part or parts of the alleged cause of action by written notice.<\/p>\n<p>Where a claimant serves a notice above, it must pay the respondent\\&#8217;s costs of the proceedings or if the claim is not wholly discontinued, the costs occasioned by the alleged cause of action withdrawn.\u00a0 This does not apply to small claims.\u00a0 If not agreed, the applicable scale of costs may be determined by the court.<\/p>\n<p>Discontinuance and withdrawal is not a defence to any subsequent claim other than in the above circumstances.<\/p>\n<p>Other than in the above circumstances, a claim may not be withdrawn without permission of the Court.\u00a0 The Court may at the trial or hearing on the claimant\u2019s 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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Costs\"><\/span>Costs<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 If there is no scale of cost, the Court may determine the amount of costs.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-21350\" data-postid=\"21350\" class=\"themify_builder_content themify_builder_content-21350 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>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\u00a0 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[316],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21350"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=21350"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21350\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=21350"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=21350"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=21350"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}