{"id":3941,"date":"2018-09-01T19:58:24","date_gmt":"2018-09-01T19:58:24","guid":{"rendered":"https:\/\/legalblog.ie\/3941-2\/"},"modified":"2023-06-29T19:43:56","modified_gmt":"2023-06-29T19:43:56","slug":"3941-2","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/3941-2\/","title":{"rendered":"Commencing Proceedings"},"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\/3941-2\/#Issue_of_Summons\" title=\"Issue of Summons\">Issue of 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\/3941-2\/#Issue_Requirements\" title=\"Issue Requirements\">Issue Requirements<\/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\/3941-2\/#Issues_in_Particular_Cases\" title=\"Issues in Particular\u00a0 Cases\">Issues in Particular\u00a0 Cases<\/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\/3941-2\/#Assignment_of_Certain_Types_of_Summons\" title=\"Assignment of Certain Types of Summons\">Assignment of Certain Types of Summons<\/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\/3941-2\/#Period_for_Service_Extension\" title=\"Period for Service &amp; Extension\">Period for Service &amp; Extension<\/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\/3941-2\/#Service_and_Renewal_Issues\" title=\"Service and Renewal Issues\">Service and Renewal Issues<\/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\/3941-2\/#Discontinuance\" title=\"Discontinuance\">Discontinuance<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Issue_of_Summons\"><\/span>Issue of Summons<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A Summons must be issued from the court offices.\u00a0 A number of draft copies are brought to the Central Office and filed.\u00a0 One is sealed with the High Court seal and details of the record number.\u00a0 Copies are issued for service. There are different codes in the record numbers depending on the type of summons.<\/p>\n<p>Sealing of the summons stops the time limit for the statutory limitation.\u00a0 The summons, however, must be served within a certain period.\u00a0 These summonses are entered in cause books or court records. The summons must be stamped with the relevant court fees.<\/p>\n<p>Certain categories of claims are assigned to particular judges. Where this occurs subsequent steps in the proceedings are as far as possible to be heard by the same judge whose particulars are marked on the paper.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Issue_Requirements\"><\/span>Issue Requirements<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Central Office is to maintain Cause Books in which proceedings commenced by originating summons, issued out of the Central Office, are to be entered. \u00a0They are to be entered consecutively in order of issue.\u00a0 They shall be distinguished by the date and the year and the number in consecutive order, with or without a distinguishing letter or other sign.\u00a0 They constitute the record number of the proceeding.<\/p>\n<p>Every originating proceeding shall bear the date of issue and be authenticated in the name of the Chief Justice or the President of the High Court if the Chief Justice\u2019s office is vacant.\u00a0 Every summons shall be sealed and marked with a record number by the proper officer and shall be deemed thereby issued.\u00a0 No originating summons shall be served until the same has been sealed and marked.\u00a0 One or more duplicates of every originating summons shall be sealed and marked on the application of the plaintiff or his solicitor.<\/p>\n<p>The plaintiff, other party or his solicitor shall, on presenting the original summons for sealing, leave written or printed copies, partly written and printed copies, on paper of the prescribed description, of such summons and all indorsements thereon and the copy shall be signed by the solicitor leaving the same or by the plaintiff if he sues in person. An officer receiving the copy summons shall cause it to be marked with the record number and filed and shall cause an entry of the particulars thereof to be made in the Cause Book.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Issues_in_Particular_Cases\"><\/span>Issues in Particular\u00a0 Cases<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The issue of a summons in probate proceedings shall be preceded by the filing of an affidavit made by the plaintiff or one of the plaintiffs in verification of the indorsement on the summons.\u00a0 On issuing the summons, the plaintiff, if he has not already so done, shall lodge a caveat in the Probate Office in respect of the estate of the deceased person.<\/p>\n<p>Every petition to the Court shall be presented by leaving it with the proper officer of the Central Court. The general provisions above shall apply to petitions in the same manner as an originating summons.\u00a0 References to the plaintiff shall refer to the petitioner and references to the originating summons shall refer to the petition.<\/p>\n<p>At the foot of every petition presented and every copy, a statement is to be made of the persons, if any, intended to be served.<\/p>\n<p>No summons for service out of the jurisdiction shall be issued without the leave of the Court.\u00a0 This is subject to separate provisions in relation to Judgments Convention and other Conventions. See separately the detailed separate requirement for a summons which is to be served under EU and international conventions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Assignment_of_Certain_Types_of_Summons\"><\/span>Assignment of Certain Types of Summons<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The following original summons shall, at time of issue, be assigned to such judges as the President of the High Court may assign, subject to the power of transfer, every originating summons in respect of<\/p>\n<ul>\n<li>the administration of estates of deceased persons;<\/li>\n<li>the dissolution of a partnership or the taking of partnership accounts;<\/li>\n<li>the redemption of mortgages; raising of portions on charges on land;<\/li>\n<li>the sale and distribution of the property subject to any lien or charge;<\/li>\n<li>the execution of trusts, charitable or private;<\/li>\n<li>the rectification of deeds or setting aside other instruments;<\/li>\n<li>the specific performance of property contracts and any other contracts in respect of which specific performance may be issued;<\/li>\n<li>the partition of land and property;<\/li>\n<li>matters formerly within the exclusive jurisdiction of the Courts of Chancery other than wardship;<\/li>\n<li>every other originating summons as may be prescribed by Rules from time to time; and every special summons relating to any particular class of claim;<\/li>\n<\/ul>\n<p>Where an originating summons has been assigned to a particular Judge or where a step has been heard by a particular judge, them each subsequent summons, notice of motion, petition, relating to the matter or so connected with it so as to be conveniently dealt with by the same Judge, shall whenever practicable be marked by the proper officer with the name of such Judge.<\/p>\n<p>The party or solicitor presenting such summons, motion or petition, shall, if there is to his knowledge such relation or connection, so certify. The certificate is to be in a prescribed form and is to be countersigned by the Judge\u2019s Registrar to whom the originating summons had been assigned or by whom such originating summons had been heard, as the case may be.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Period_for_Service_Extension\"><\/span>Period for Service &amp; Extension<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An original summons shall be in force for no more than twelve months from its date.\u00a0 If any defendant named in it has not been served, the plaintiff may apply before expiration to the Master for leave to renew the summons. After twelve months, the application to extend time must be made to the Court.<\/p>\n<p>The Master on an application if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for three months from the date of such renewal inclusive.<\/p>\n<p>If the summons has been lost or destroyed, the Court may, if satisfied as to destruction or loss and the correctness of a copy, order that such copy shall be sealed and served in lieu of the original summons.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Service_and_Renewal_Issues\"><\/span>Service and Renewal Issues<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The summons must be served within 12 months.\u00a0 After this period it may only be served if it has been renewed. After the expiration of twelve months, application to extend time for leave to renew the summons shall be made to the Court. \u00a0The Court on an application may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order.<\/p>\n<p>The summons shall, where an order of renewal has been made, be renewed by being stamped with the date of the day, month and year of such renewal; a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.<\/p>\n<p>The application to renew is made on the one-sided application. The defendant\/respondent party may issue a motion to set aside the renewal before entering an appearance.\u00a0 If there are other relevant facts which have not been disclosed by the applicant in his ex-parte application then the court may make a different decision. In any case where a summons has been renewed ex parte, the defendant shall be at liberty before entering an appearance, to apply by notice of motion to set aside the order.<\/p>\n<p>The Irish courts have been willing in the past to renew summons after the periods when the statute of limitations had expired.\u00a0 However, in more recent times the courts less readily grant extensions and may not do so, where, for example, \u00a0the delay has prejudiced the defendant in making his defence.\u00a0 Broadly, the Master or court will renew the summons where the injustice to the plaintiff outweighs the injustice to the defendant.<\/p>\n<p>The plaintiff who does not serve within 12 months may issue a new summons although he may be subject to the statute of limitations if he is outside the relevant period.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Discontinuance\"><\/span>Discontinuance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The claimant may at any time after receipt of the defendant\u2019s defence (or after receipt thereof before taking any other step other than an interlocutory application) may by notice in writing, wholly discontinue the claim against all or any of the defendants or withdraw any part or parts of the alleged claim.<\/p>\n<p>He shall thereupon pay the defendant\\&#8217;s cost of actions. \u00a0If the action is not wholly discontinued he shall pay the costs occasioned by the matter withdrawn. \u00a0Such costs may be taxed.<\/p>\n<p>The claimant may however at any time prior to setting down of the trial wholly discontinue his action with or without cost to be paid by any party upon producing consent in writing signed by all parties or by their solicitors. Such costs, if any, may be taxed.<\/p>\n<p>Discontinuance or withdrawal, as the case may be, \u00a0shall not be a defence to any subsequent action.\u00a0 Unless otherwise specifically provided by rule, \u00a0a party may not discontinue an action without leave of court.\u00a0 The court may before or after hearing \/ trial, upon such terms as to costs and such other action or otherwise as may be just, order the action to be discontinued or any part or allege cause or complaint to be struck out.<\/p>\n<p>The court in like manner and with the like discretion as to terms upon the application of defendant order the whole or any part as the alleged grounds of defence or counterclaim to be struck out. \u00a0A defendant may not withdraw his defence or any part of it without leave of court.<\/p>\n<p>Where a claim has been entered for trial, it may be withdrawn by either claimant or defendant upon producing to the court offers a consent in writing signed by the parties or by their solicitors.<\/p>\n<p>A defendant may enter judgment for the costs of an action if it is wholly discontinued against him or for the cost occasioned by the matter withdrawn if the action is not wholly discontinued if such costs are not paid within four days of taxation.<\/p>\n<p>If any subsequent action shall be brought before payment of the costs of a discontinued action for the same or substantially the same cause, \u00a0the court may order a stay of such action until such costs\u00a0have been paid.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-3941\" data-postid=\"3941\" class=\"themify_builder_content themify_builder_content-3941 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Issue of Summons A Summons must be issued from the court offices.\u00a0 A number of draft copies are brought to the Central Office and filed.\u00a0 One is sealed with the High Court seal and details of the record number.\u00a0 Copies are issued for service. There are different codes in the record numbers depending on the [&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":[314],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/3941"}],"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=3941"}],"version-history":[{"count":3,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/3941\/revisions"}],"predecessor-version":[{"id":21602,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/3941\/revisions\/21602"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=3941"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=3941"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=3941"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}