CIRCUIT COURT PROCEDURES.

 

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Click here for precedent documents and correspondence for Circuit Court Civil Proceedings at www.legalprecedents.ie

 

Take a file reference number

Download Litigation Data File and fill in the details available.  Create a Folder for the case in the Client’s Folder and save the data file.

Merge the data file with Preliminary Correspondence Set. (use Preliminary Correspondence Set as it may not be clear at this point what Court the proceedings will ultimately be taken in.)

Complete Attendance Note.

Note any monies received on account from the client which goes into the client account must be receipted on the file e.g. monies for medical reports, Expert Reports etc.

INITIAL LETTERS.

The first thing to do is to decide who should be sued.  If there is a doubt about who is responsible and none of the parties thought to be responsible are admitting liability it is prudent to sue each of the parties involved but issue O’Byrne letters to each.  Once the judgement is obtained you can seek payment from any of the defendants in accordance with the Judgement.  Choose the relevant initial letters to send from the Preliminary Correspondence set e.g.;

to defendant(s). O’Byrne letter where there is more than one defendant.

to defendant’s insurance company (if applicable) – Ask them to confirm cover by open letter i.e. not a Without Prejudice letter.

to client with s.68 letter  including costs details

to Gardai

 

to client’s GP.

 

BRIEF FOR COUNSEL 

Put together Brief For Counsel to advise on case and/or draft Pleadings.  The Brief will be amended/added to as the matter progresses and contains the following; 

Case for Counsel (outlines  the facts to date) 

In most cases (apart from debt recovery) the Civil Bill will need to be drafted by Counsel or the opinion of Counsel will be needed to determine whether to proceed or not and it will be necessary to prepare Case for Counsel.  The case to counsel will outline the position to date as seen by you (agent) having gathered information from your client (Querist). 

The Case for Counsel is forwarded along with all relevant material held on file which Counsel is likely to require to draft the Civil Bill or to give opinion on proceeding.  This material along with the Case for Counsel is termed the  Brief for Counsel and is put together in booklet form with all documents itemised with page numbers. The Index  will include;

  1. Case for Counsel
  2. Attendances on Querist
  3. Witness statements if available.
  4. Deeds
  5. Documents
  6. Correspondence etc.

Expert Reports 

Any expert reports that are to had will also be sent in a separate booklet.

Book of Pleadings 

A Booklet of Pleadings to date will also be forwarded where pleadings have already issued and Brief for Counsel is being forwarded to Counsel for drafting Notice for Particulars, Replies to Particulars or for Opinion on any matter arising or for any other reason.

DRAFTING CIVIL BILL

The body of a Civil Bill must contain such facts as show the jurisdiction of the Court as follows;

Title – should disclose the names of the parties and  the Circuit and County.  Where the plaintiff is a minor he will need to sue by a next friend.  The next friend should be a parent or other close relative and must sign a Consent of Next Friend form prior to issuing proceedings.

Body – should contain an averment as to jurisdiction e.g. rateable valuation does not exceed €253.95 ( £200 )etc.  (Apply for a PLV Cert )

Endorsement of Claim – must state the following;

The Nature of the claim

The Extent and grounds on which the proceedings are brought,

The Relief sought.  (Include claim for costs)Where it is a money claim, the amount of the claim and the amount and rate of interest.

Where there is more than one claim, similar particulars must be given in respect of each claim and each relief sought.

The insertion of 6 day costs is optional.

When the draft Civil Bill is received from Counsel it is engrossed and can then to sent to the Circuit Court to issue

ISSUING A CIVIL BILL 

  1. Draw up the Civil Bill . Sign and date it.
  2. Have (stamped with Court Fees) .
  3. The Stamped Civil Bill and the copy are then lodged in the Circuit Court Office where they are stamped with a date, sealed and assigned a record no. The Civil Bill is now deemed to be issued and the Statute of Limitations begins to run.
  4. The original stamped Civil Bill ( the one without the Court Fees stamped on it) is returned to the Solicitor to be served. This is now the Solicitor’s Original Civil Bill. The copy of the stamped Civil Bill is retained by the Circuit Court Office.

The Civil Bill is then deemed to be entered.

Note:  the name and address of the Defendant must be on the face of the Civil Bill even if to be served on the Solicitor for the Defendant

SERVING A CIVIL BILL

The Civil Bill is then served by registered post or by Summons Server or other person authorised to effect service.  Must be served by Summons Server where there is one appointed for the jurisdiction.

On Solicitor for Defendant

By Registered Post

The original and a copy of the stamped and issued Civil Bill is sent by registered post to the Solicitors for the defendant.  The Solicitor for the Defendant is requested to endorse acceptance of service on the Original Civil Bill and an undertaking to lodge an appearance within the time prescribed by the rules and return  the Original, keeping the copy for reference.

The Original must then be, within three days at most of service, endorsed with the name of the person who served it, the day of the week and date upon which and in the manner in which and place where such service was made.

The service is then authenticated by Affidavit or Statutory Declaration by the person serving the document and must mention the date on which the above indorsements were made.  This can be endorsed on the original document.

Personal Service

Personal Service can be by duly appointed Summons Server or by other person authorised to do so.

Prior to delivering the Original  Civil Bill and copy  the person serving same must compare the copy with the Original and endorse his name on the copy.

Service of the Civil Bill or other originating document is effected by delivery of the Original Civil Bill together with a copy to the office of the Solicitor for the Defendant. The Solicitor for the Defendant is requested to  endorse acceptance of service on the Original Civil Bill and also endorse an undertaking to lodge an appearance within the time prescribed by the rules.  He must then return  the Original, keeping the copy for reference.

The Original must then be, within three days at most of service, endorsed with the name of the person who served it, the day of the week and date upon which and in the manner in which and place where such service was made and the person whether husband or wife or relative or employee, upon, whom it was served (SI 500 of 1997.)

The service is then authenticated by Affidavit or Statutory Declaration by the person serving the document and must mention the date on which the above indorsements were made.  This can be endorsed on the original document.

On Defendant

By Registered Post

A copy of the stamped and issued Civil Bill is sent by registered post to the defendant.   The copy of the Civil Bill should be endorsed with the name of the person serving it before service.

The Original must then be, within three days at most of service, endorsed with the name of the person who served it, the day of the week and date upon which and in the manner in which and place where such service was made

The service is then authenticated by Affidavit or Statutory Declaration by the person serving the document and must mention the date on which the above indorsements were made.  This can be endorsed on the original document.

Personal Service

Personal Service can be by duly appointed Summons Server or by other person authorised to do so.

Prior to delivering the Original  Civil Bill and copy  the person serving same must compare the copy with the Original and endorse his name on the copy.

Service of the Civil Bill or other originating document must be on the defendant personally or at the defendant’s residence upon the husband or wife of the defendant or upon some relative or employee of the defendant over the age of 16 and apparently resident there.  The defendant is given the copy document and shown the Original.

The Original must then be, within three days at most of service, endorsed with the name of the person who served it, the day of the week and date upon which and in the manner in which and place where such service was made and the person whether husband or wife or relative or employee, upon, whom it was served (SI 500 of 1997.)

The service is then authenticated by Affidavit or Statutory Declaration by the person serving the document and must mention the date on which the above endorsements were made.  This can be endorsed on the original document.

The person authorised to effect service must within four days of serving the Summons, return the original of same properly endorsed as prescribed by the rules and outlined above, to the Solicitor or other person from whom it was received.

Note: After the Civil Bill is served there is no need to enter it in court with proof of Service as is the procedure in the District Court.  The Court is already aware of the Civil Bill as it is issued by the Court.  A Civil Summons is only comes to the attention of the court when it is entered.  Prior to being entered, it is only necessary stamp the Civil Summons before serving it on the Defendant.  A Civil Summons is drawn up and a District Court date inserted in it.  It can then be stamped in a Solicitors office and served on the Defendant without going near the Court.  Even where the Civil Summons is stamped in the District Court no record of it is retained.  In fact it is possible to have a no. of blank Civil Summons stamped at the one time in the District Court and kept for future use.  It is entered so that the Court has a note of the matter and it can be put in a list of matters to be heard before the District Court on the date in the Civil Summons.

Service by Registered Post

Proof of Service is only required by the Court when application is made for Judgment

SUBSTITUTED SERVICE 

Note: ensure that, in the Affidavit accompanying the Application for Substituted service that you outline what enquires you have made to establish where the Defendant lives.

Make the application for this and every other Pleading in the proceedings.

AMENDING A CIVIL BILL

Application is made by way of Motion on Notice to the County Registrar’s Court.  When the order is granted to amend the Civil Bill the order is taken up from the Circuit Court.  The Amended  Civil Bill is then drafted in duplicate with the amendments underlined in red.  The Amended Civil Bill and Duplicate is lodged in the Circuit Court together with the Order allowing amendment.  When the amended Civil Bill is returned by the Circuit Court Office it is served on the other side.

MOTIONS

Once Proceedings have been instituted all applications to court in relation to matters arising pre-trial are brought before the court by way of Motion.

In Motions on Notice the other side must be served with a Notice of Motion.  The Notice of Motion is in fact the Motion application itself which is served on the other side in addition to being lodged in the Court office.  As the Motion is not an originating document like a Civil Bill or Civil Summons it is not necessary to send the original to the Defendant or  opposing Solicitor to accept service of same.  It is sufficient to serve and copy on them by registered post.

All Circuit Court applications by way of Motion (ex parte or On Notice) in the Galway Circuit must first be brought before the county Registrars Motions Court.  Motions must be lodged strictly no later than the Tuesday before the Monday on which the motion is to be heard.  Once the list is published no more motions will be added to it.

The County Registrar’s Court sits c.  every two weeks at 10.00am on the 2nd and 4th  Monday of each month.  A list of the Motions coming before the County Registrar is published by the Circuit Court office and can be obtained on the morning of the court. The following are the likely outcomes in most applications;

  • It may be a matter within the jurisdiction of the County Registrar to deal with in which case the County Registrar will grant or refuse the Order sought or adjourn the matter to the next sitting in order to give the sides time to resolve the matter.
  • If it is matter which is not within the jurisdiction of the County Registrar he will put the matter in the Judges Motions List for the next sitting of the Circuit Court Judge. The matter will then be heard before the Circuit Court Judge.
  • The matter might have been resolved between the time when the application was lodged and the coming before the County Registrar.

 

There are two types of Motion i.e. Ex Parte Motions and Motions on Notice.

On Notice

Documents

  1. 21 day warning letter.
  2. Motion on Notice application
  3. Grounding Affidavit. ( If required)
  4. Letter to District Court to Stamp Motion (€.00) (and Affidavit  €11.00)
  5. Letter to Circuit Court lodging  Motion, Affidavit (if applicable) and Declaration of Service of Motion

 

Procedure

  1. Send 21 day warning letter. If no response to the warning letter do the following;
  2. Draft Motion addressed to the County Registrar and to the other party or  Solicitor acting for the other party.
  3. Draft Affidavit setting out the reasons the Order is sought, where required, and sworn by the party or his Solicitor.
  4. Send the Motion (and Affidavit ) to be stamped.
  5. Serve a copy of the Motion (and of the Grounding Affidavit if applicable) on the respondent or his Solicitor. Endorse with name of person serving  before serving.  Both the Motion and Grounding Affidavit must be stamped before service can be effected.  If the motion is to be served personally on the defendant 4 clear working days notice must be given.  If there is a Solicitor on record then only 2 days notice is required.
  6. Draft the Declaration of Service and have sworn. If the Motion was served by registered post there must be sufficient time between the date of posting and the date of the Declaration to allow for the return of the registered post if not successfully delivered.  The Declaration should not be sworn less than 10 days after service.
  7. Send the originals of the Motion (and Affidavit ) along with the Declaration of Service of Motion to be filed in the Circuit Court. 

Note: If not already lodged, lodge the  Affidavit of Service of the Civil Bill or other originating document at this point 

Note : Keep copies of the sworn Affidavit and of the Motion on File.  Attach only copies of any exhibits to an Affidavit.

Diary the date of the hearing of the Motion

On the day of the hearing bring the File to Court as the applicant’s solicitor or if Counsel dealing with the matter he should have with him;

  1. A copy of the Motion
  2. A copy of the grounding Affidavit ( if any)
  3. The original of any Exhibits
  4. Declaration of Service.

 Ex Parte

In an ex parte Motion the application to the court is made by one party to the action and without notice to the other side.

Documents

As above except for Declaration of Service.

Procedure

As above except no need to serve on other side.

MOTION FOR JUDGMENT IN DEFAULT OF APPEARANCE/DEFENCE

Documents

  1. Motion for Judgement in Default of Appearance/Defence
  2. Affidavit Grounding the Motion (not required in Galway)
  3. Declaration of Service of Motion
  4. Certificate of No Appearance (Certificate of No Defence is not required as the Defence is no longer lodged in the Circuit Court.
  5. Letter to Circuit Court to sign Certificate of No Appearance.
  6. Letter to District Court stamping section
  7. Registered letter to Defendant or Solicitor for Defendant serving Motion
  8. Letter to Circuit Court entering Motion.

Note:  A Certificate of No Appearance should be obtained from the Circuit Court  but a Certificate of No Defence is not required as the Defence is no longer lodged in the Circuit Court.

Procedure

According to Circuit Court rules the Defendant should be given 14 days notice of your intention to issue a Motion for Judgement in Default of Defence in cases where a possession Order is sought and according to a practice direction 14 days notice should also be given in all other cases.  Note however that the 14 days Notice is not required where there is a default of Appearance.

Note: all documents must be lodged within 14 days of the swearing of the Affidavit.

  1. Draft Motion for Judgement in Default of Appearance/Defence (and grounding Affidavit.)
  2. Have Affidavit signed by relevant person and sworn.
  3. Send the Motion  and Affidavit to the District Court Office to be stamped.
  4. Serve a copy of the Motion and copy  grounding affidavit to the defendant or solicitor for the defendant
  5. Send the following to the Circuit Court requesting that the Motion be entered for the next Motions day.
  1. Motion stamped
  2. (Grounding Affidavit stamped)
  3. Statutory Declaration of Service.

No need to send in the stamped and issued Civil Bill (if not already entered) this is only required when looking for Judgement/Order.  The original Civil Bill and statutory declaration of Service should be brought to court on the day of the hearing of the Motion for production to the court if asked for.

The matter will then be listed for the next County Registrars Motions Court, where the defendant is usually given c. 3 weeks to file the appearance/defence.

If Order applied for in the Motion is granted then the Order is taken up and a copy of same is sent to the Defendant or Solicitor for the Defendant demanding compliance with the Order.

JUDGMENT IN THE OFFICE FOR DEFAULT OF APPEARANCE/DEFENCE

Can be obtained in Summary proceedings where there is a liquidated sum.

The following documents are sent to the Circuit Court Office to obtain judgement using

Documents

  1. Affidavit of Debt
  2. Letter to Plaintiff to sign Affidavit of Debt
  3. Letter to District Court to stamp documents.
  4. Letter to Circuit Court sending in documents
  5. Certificate of No Appearance (will be signed by the court where a Civil Bill was issued)
  6. Request for Judgement in Default of Appearance (stamped with €  court fees)
  7. Judgement by Default of Appearance ( include Fees Sheet in this)
  8. Original Civil Bill with endorsement of Service and Declaration of Service.
  9. Copy Judgement by Default of Appearance (stamped with € court fees to obtain certified copy of the Judgement.

Can also send in;

 

Request for an Execution Order

Execution Order (attach up-to-date fees Order to back of Execution Order. The Execution Order or Fi Fa Order is good for one year).

Procedure

 

  1. Send the Affidavit of Debt to the Plaintiff for signing.
  2. Send the  Request for Judgement and Duplicate Judgement for stamping.
  3. When both returned sign and date all documents where required and forward all to the Circuit Court.
  4. The Judgement will be issued by the County Registrar and a certified copy of the Judgement (where requested) together with an Execution Order (where requested) will be returned to you.
  5. Send a copy of the Judgement to the Defendant or Solicitor for the Defendant demanding compliance with same.

Note: When sending an execution Order to the Sheriff’s office, the € fee must be paid by cheque.  The office does not take stamped dockets.

(If request for execution Order is lodged at the same time as the request for Judgement there is no extra court fee for this.  If lodged at a later time there is a fee of €)

A Certified Copy of an Order can be obtained by stamping a duplicate of the Order with relevant court fees and writing in requesting a Certified Copy.

APPEARANCE

Note:  Unconditional appearance is a submission to the jurisdiction of the Irish Courts and moreover a Defendant waives any defects in the Civil Bill or service by so entering.

The Defendant is given 10 days from the date of Service of the Civil Bill to enter an Appearance.  The Appearance should be sent to the Plaintiff’s Solicitor (by ordinary post) and filed in Court.  If no Appearance is filed then the Defendant can proceed to seek Judgement in Default of Appearance. Note however that a Notice of Motion for a default Judgement shall not issue unless the Plaintiff has at least 14 days prior thereto given written notice to the Defendant of his intention to issue same and consenting therein to the late delivery of the defence within 14 days.

If no Appearance is filed within the 10 days the Defendant may seek consent to filing of a late appearance.  This is usually given. If not given the Defendant can apply to Circuit Court (County Registrar’s Motions Court) by way of Motion for Order allowing the filing of a late appearance.

DEFENCE

No need to stamp or lodge the Defence in court.  Simply send the Defence to the other side.  Not necessary to send by registered post but may be advisable.

NOTICE FOR PARTICULARS

VOLUNTARY DISCOVERY

 

Documents

  1. Affidavit of Discovery (affdi)
  2. Letter to District Court to stamp Affidavit (€6.00 stamps on Affidavit)
  3. Letter to Circuit Court lodging Affidavit.
  4. Letter to solicitors serving Affidavit of Discovery.

Procedure

  1. Request is received from opposite side for voluntary discovery of any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing or any copy of any extract from any such document or any other document whatsoever relating to the matters in question in this suit or any of them or wherein any entry has been made relative to such matter or any of them in the custody, possession or power of your client or his/her solicitor or agent or in the custody possession or power of any other person or persons on his/her behalf The request will usually for general discovery. Should always reciprocate the request and seek discovery of all documents held by the other side.
  2. Write to other side agreeing the terms of discovery. Once it has been agreed to make Discovery a failure to comply can entitle one party to seek a court order for the defaulting party to be penalised.  If the terms cannot be agreed or if Voluntary Discovery is refused, the other side may make and application to court to have the Discovery made on their terms. (see below Discovery by Court Order)
  3. Prepare Affidavit of Discovery in consultation with client, listing all documents in the custody, power or possession of the client, for which privilege is not claimed and which will be shown to the other side.
  4. Have the Affidavit sworn by the client.
  5. Stamp the Affidavit (£6.00)
  6. File the Affidavit in court.
  7. Send a copy to the other side.
  8. Arrange to inspect the other side’s documents.

DISCOVERY BY COURT ORDER

Procedure

  1. Write to other side requesting discovery of documents and setting out the terms of the discovery required. This letter must later be produced before the court as evidence of the terms of discovery sought.
  2. When voluntary discovery is not forthcoming, after waiting a reasonable period, apply to the County Registrar’s Court by Motion on Notice for an Order compelling the other side to discover the documents.
  3. The Motion must be supported by an Affidavit verifying the fact that voluntary discovery has not been forthcoming or that the terms of the Discovery could not be agreed. (See Motions) Invariably a cross order will be sought by the party against whom the discovery is made.

DISCOVERY AGAINST NON-PARTIES

O.31 Rule.29

A party to proceedings can obtain an Order directing a non-party (also called “Notice Party” or confusingly “Third Party”) to make Discovery provided certain conditions are met.

SETTING DOWN FOR TRIAL

Set of Documents

  1. Notice of Trial (stamped with Court Fees)  The following information must be endorsed on the top right hand corner of the Notice; 1. Nature of the Action. 2. Nature of the Issues. 3. Estimated duration of the Trial.
  2. Notice to Produce
  3. Book of Pleadings
  4. Letter of Consent to setting down from other side.
  5. If Order allowing set down without Consent of otherside has been obtained this should be taken up and sent in when setting down.

Procedure

When counsel’s advices on Proofs have been complied with a Notice of Trail can be served.  The Consent of the other side is required and a request should be made to them for a letter of consent.  If the other side fails without reasonable explanation to furnish a Consent letter within eight weeks of being requested to, you can apply informally to the County Registrars court for liberty to set the action down for trial and the application will be grounded on the correspondence which has taken place between the parties.

When consent to service of Notice of Trial is obtained the commencement  date of the next scheduled sitting of the Circuit Court is inserted in it and the said Notice is stamped with €25.00 court fees.  The date inserted is not the date of the actual hearing of the matter but merely indicates that the matter is returnable for that date and will be listed for the relevant venue for the court sittings commencing at that date.

A Call Over of the list of cases set down will take place a few weeks before the commencement of the particular Circuit Court sittings and you will be notified of this by the Circuit Court Office.  The case will be inserted for hearing on a particular date at the Call Over.  If there is a difficulty with any particular date of the sittings this should be indicated at the call over and a suitable date obtained.

A copy of the Notice of Trail is served on the Defendant or Solicitors for the Defendant.  At least 10 days notice is required.  It is not required to be sent by registered post.

The Notice of Trial is then lodged in the Circuit Court together with a full Book of Pleadings and the letter of Consent to setting down.  (Note:The Notice of Trial is not included in the Book of Pleadings).  The Notice of Trial and Book of Pleadings must be lodged not later than 7 clear days before the date in the Notice of Trial.   The matter is then put in the list.

Attend at the call over which takes place prior to the Circuit Court sittings to determine what cases are going to go ahead.  A date for hearing is obtained at the call over.

BRIEF FOR COUNSEL

Include Case to Counsel and Advice on Proofs.

Book of Pleadings

The Pleadings are contained in a Booklet of Pleadings which is a separate booklet to the Brief for Counsel.

Advice on Proofs

SPECIAL DAMAGES

Special Damages are the out of pocket expenses that the plaintiff has incurred as a result of the wrong committed against him e.g.  damage to property, travel expenses, medicines, doctors fees,

Medical Reports, which are compiled for the purposes of court proceedings don’t constitute part of the Special Damages.  They come under costs, like Solicitor’s fees and counsel’s fees, stamp duty etc. as they are costs incurred in running the case

Social Welfare Payments?

Other insurance payments?

SUBPOENA OF WITNESSES

(same fees and procedure for District Court Summons)

Can have up to 4 different witnesses on a Duces Tecum Summons or one on an Ad testificandum  summons.

Documents

Requisition for the issue of a Witness Summons franked with the appropriate court fees. (In Dublin and Cork area only)

  1. Witness Summons ( to be stamped with court fees on summons
  2. Letter to District Court to stamp.
  3. Letter to Circuit Court to sign and issue Summons
  4. Letter to subject(s) of the Summons serving Summons and furnishing viaticum.

SERVICE : According to the Circuit Court Rules Witness Summonses must be served in person  or where the party is represented by a Solicitor by serving the Summons on the Solicitor personally or by sending to his/her office by pre-paid  post.  When serving a Summons personally it is the practice to show the original Summons to the witness and hand him/her a copy along with the viaticum (i.e. reasonable expenses to get to the Court)

In some instances it is possible to serve the summons by registered post although this is not permitted by the rules.

Registered letter to subject(s) of the Summons serving Summons and furnishing viaticum.

Declaration of service of Summons.

Procedure

  1. Draw up Summons to Witness. Insert date of the hearing from the Court list which is compiled and sent out to offices prior to the Court sittings. If this is not available insert the date of the commencement of the court sittings.
  2. Send for stamping.
  3. When returned from stamping send to Circuit court to be issued. The Circuit will not normally issue the Summons until such time as the matter, be it a hearing of the case or a Motion, has been listed before a Judge.
  4. Serve a copy of the stamped and issued Summons on the Witness.  The witness must be given  reasonable notice i.e. 10/14 days is considered reasonable but a shorter period can be given depending on the circumstances.  This can be by registered post (check rules) or in person.  If in person the original is shown to the witness and  a copy of same served on him.  Ensure that a viaticum is included.
  5. A Declaration of Service is not required if Summons Served personally. It is sufficient to endorse the fact of service along with date and place it was served, on the back of the original Summons in the following form:

 

“I AB served a true copy of the within Witness Summons by personally handing same to

____________________________ at_______________________________

_____________________________________________________________

on the _____________________________having first shown the original.

 

Dated              day of

 

Signed_____________________________

 

 

 

The viaticum is generally in the amount of €25.00 for a witness in the vicinity of the Court.  It is not the full amount  in respect of expenses to which the witness may be entitled but merely to cover expenses in getting to court.  The amount of the viaticum will therefore increase in proportion to the distance the witness has to travel.

 

Note. It is good practice to issue Summonses for all witnesses and hold them on file in case they are needed.  Also issue separate Summons for those who are likely to be summoned and those that are unlikely to be summoned.

Note: If you have an expert witness hired, you will not be serving a subpoena on him.

NOTICE TO PRODUCE

Every party to an action is entitled at any time, by notice in writing, to give notice to the other party in whose pleadings or affidavit or list of documents reference is made to any document, to produce such document for the inspection of the party giving such notice, or his solicitor, and to permit copies thereof to be taken.

General Notice to Produce.

A general Notice to Produce is customarily served by ordinary prepaid post by each party upon the other party prior to trial.  This compels the other side to produce the original of all documents in the dispute e.g. you might be asking the other side to produce the original of Discovery documents.  Subject to certain Statutory exceptions the original of all documents in dispute must be available before the court and if not available must be satisfactorily accounted for.

The costs of producing documents which are specifically referred to in a Notice to Produce and which are not necessary must be borne by the party giving such notice.

NOTICE TO ADMIT

CALL OVER

Procedure whereby the Judge goes through the list of cases listed for that morning/afternoon to check what their present status is i.e. going ahead, offer being made, settled etc.

SETTLEMENT

TRANSFER TO THE HIGH COURT

Application to Circuit Court 

Documents 

  1. Notice of Motion  to County Registrar seeking Transfer to High Court
  2. Affidavit Grounding the Motion by Solicitor exhibiting Medical Reports.
  3. Declaration of Service.

Procedure

  1. Draft Motion and Affidavit.
  2. Have both stamped.
  3. Serve copy Motion and Affidavit on Solicitors for other side by registered.
  4. Enter Motion, Affidavit and Declaration of Service in Circuit Court Office no later than the Tuesday before the Monday on which  the Motion is to be heard.
  5. Motion is heard before the County Registrar who may transfer it to the Judges list.
  6. Order transferring is Granted.
  7. Take up Order from Circuit Court.

Adoption by High Court. 

  1. Draft/have Counsel Draft Motion addressed to the Chief Registrar, Central Office, Four Courts, Dublin 7. and to the other party  or  Solicitor acting for the other party.
  2. Have Counsel Draft Affidavit setting out the reasons the Order is sought, where required, and sworn by the party or his Solicitor.  (Where Motion is to adopt High Court Proceedings in the High Court, a copy of the Circuit Court Order is sufficient)
  3. Send the Motion( and Affidavit/Order ) in triplicate to Law Agents to be stamped, issued  and served.  Both must be stamped before service can be effected.
  4. Serve the Motion and Order on the Defendant’s Solicitor.  If the motion is to be served personally on the defendant 4 clear days notice must be given.  If there is a Solicitor on record then only 2 days notice is required.
  5. The Motion will already have been entered in the Central Office so nothing else need be sent to the High Court.
  6. Send following to Counsel to attend and move the motion;
    1. Copy Notice of Motion (original with copy exhibits is in the Central Office of the High Court)
    2. Original Exhibits.

Note: Counsel is to be attended on by Law Agents, send the Originals of the exhibits as above to the Law Agents and send copies to Counsel.

Law Agents can do simple applications without Counsel e.g strike out by consent, adjourn by consent etc. 

Note : Keep copies of the sworn Affidavit and of the Motion on File.  Attach only copies of any exhibits to an Affidavit.

Diary the date of the hearing of the Motion

On the day of the hearing the applicant’s solicitor or law agent dealing with the matter  should have with him;

  1. A copy of the Motion
  2. A copy of the grounding Affidavit /Order( if any)
  3. The original of any Exhibits
  4. Affidavit of Service.

HEARING

COSTS

 

Generally two scenarios arise;

  1. An order for costs is obtained from the Court or an agreement to pay costs as part of a settlement is made an order of the Court, usually with a proviso that they be taxed in default of agreement.
  2. A settlement is reached whereby one side agrees to pay the costs of the other but it is not made an order of court. In this scenario if the costs are not paid within a reasonable time the only option is to issue fresh proceedings suing on the settlement.

O.18 r.5

Costs should be sought on all Orders granted with a proviso that they be taxed in default of agreement.  If there is dispute over the exact amount then the bill of costs is presented for taxation before the County Registrar who goes through the bill of costs in front to the parties and fixes  the appropriate amount which should be charged for each item on the bill of costs/ statement of account.  The bill of costs can be drawn up by a legal accountant.

Costs may be  agreed without the need to go to taxation.   The agreement on costs should be  but not paid then the party in whose favour the costs are ordered can proceed to enforcement by;

  1. Registering a judgement mortgage.
  2. Examination proceedings /Instalment Order Proceedings(Summons for Attendance of Debtor) and Committal. For individuals only.
  3. Execution Order to the Sheriff.
  4. Registration of the Judgement.
  5. Receiver by way of Equitable Execution.
  6. Garnishee.
  7. Bankruptcy.
  8. Liquidation.
  9. injunction.

TAXATION AND ENFORCEMENT

Where costs cannot be agreed they go before the County Registrar for taxation.

Procedure

  1. A decision is taken to have the Bill of Costs presented for taxation.  If the client wishes to have the bill of costs taxed he/she should be sent a Requisition to Tax which is signed by the client and returned to the Solicitor to be sent to the County Registrar for taxation.  The client can either appear personally at the taxation of appoint another Solicitor to represent him/her and this will be stated in the Requisition to Tax.
  1. If not already done it is advisable to have a professional  Bill of Costs drawn up itemising all the costs in the case.  This is can done by a cost drawer/costs accountant ( Derry Buckley in the District Court office, is a costs drawer and does this, (Charge is not recoverable from the other side and has to be borne by the party presenting the bill of costs e.g. the Solicitor)  The outlays go in one column and solicitors fees in another.  The Bill of costs takes the following form being laid out in columns; 1. Date: 2.Items of work : 3. particulars of work: 4. Outlay:  5. deductions from outlay by taxing master:6. Solicitors. Prof. Fees: 7. deductions from fees by taxing master: 
  1. The Bill of Costs is sent to the County Registrar with
    1. Requisition to Tax (asking the County Registrar to issue a Summons to Tax.)
    2. Summons to Tax (stamped with €8.89 ) and copy.
  1. County Registrar is requested to issue the Summons to tax.   County Registrar issues the Summons to Tax specifying the  time and date of Taxation in the  Summons.
  2. When the  Summons is issued,  a copy is served on the other party together with copy Order and copy Bill of Costs.
  3. On the date of the Summons both parties appear before the County Registrar.  The Bill of Costs is gone through and both sides argue for and against amounts listed in the Bill of Costs.
  4. The County Registrar makes any deductions he deems necessary and a final amount is settled.  A Tax in the amount of 5% of the final bill is levied by the County registrar + €12.70 for a Certificate of Taxation.  The total amount of final bill + 5% + €12.70 is the amount of costs awarded. In Solicitor and Client taxations if more that one sixth of the amount claimed is disallowed the client will not be liable for the 5% duty and the duty is payable by the Solicitor presenting the bill of costs.
  5. A Certificate of Taxation is then drawn up and sent with 5% tax and €12.p.00 fee on the Certificate to the County Registrar.

This is similar to an Order and can be enforced like an Order as follows;

  1. An Execution Order can be sought in relation to same from the Court and forwarded to the Sheriff’s Office,
  1. Can be registered as a Judgement Mortgage,
  1. In the case of a Company it can be registered in the Central Judgements Office of the High Court
  1. The examination procedure can be invoked on foot of it.

TAKE UP CIRCUIT COURT ORDER

Set of Documents

  1. Draft Order
  2. Letter to Circuit court sending for approval.
  3. Letter to district court stamps office.

Procedure

  1. Draft the Order.
  2. Send to the Circuit Court for Approval.
  3. Circuit Court will send back approved draft Order with any necessary amendments and showing the amount of the stamp duty thereon.
  4. Engross the approved draft Order and have it stamped with appropriate fees. Stamp copy also if certified copy is required.
  5. Return the following to the Circuit Court office;

Approved draft Order.

Stamped engrossed approved draft Order and copy.

The Order is signed and sealed and retained by the Circuit Court Office and a certified copy is sent back to you where applied for.

EXECUTION OF JUDGMENT BY SHERIFF

Send the Execution Order together with Sheriff’s fees to the County Registrar/Sheriff’s Office ( if in Dublin or Cork send to Sheriff’s Office), requesting the Sheriff to execute the Judgement.

REGISTRATION OF A JUDGEMENT

Set of Documents;

  1. Memorandum of Registry of a Judgement (separate Memorandum required in respect of each Defendant against whom it is intended to have effect and the name of the Defendant is given as AB and another or AB and others)
  2. Letter to District court stamps office.
  3. Certificate of the Registry of a Judgement.(for the High Court Central Judgements office.) (separate Certificate required in respect of each Defendant against whom it is intended to have effect)
  4. Letter to town agent to file.
  5. Letter to Defendant.

Procedure 

This can be done prior to instituting Examination  Procedure or where the Defendant is a body corporate (which cannot be the subject of an Examination Procedure i.e. cannot be jailed which is the ultimate sanction of the Examination procedure).  The Defendant is warned of the consequences of such registration i.e. details of Judgement will appear in Stubbs Gazette and other trade journals.

File a memorandum of the Registry of a Judgement duly completed and stamped with  court fees (Court fees is required by the court where judgement was obtained, but a further Court fee is required to lodge in the High Court Central Judgements Office, so stamp with both fees if it is intended to lodge it straight away) in the Court where Judgement was obtained.  It will be returned to you with a note confirming that such a Judgement was obtained.

Lodge the stamped  Memorandum and a Certificate of the Registry of Judgement in the Central Office of the High Court where the Judgement will be noted and the Certificate of the Registry of a Judgement returned to you.

The Central Judgements Office does not accept documents by post so a town agent must be used to deliver the documents using the letter to town agent.

REGISTRATION OF A JUDGEMENT MORTGAGE

See www.legalprecedents.ie  Precedent/Litigation/Enforcement of Court Orders.

APPEAL OF CIRCUIT COURT ORDER TO THE HIGH COURT.

(Order 61 Supreme Court Rules 1986)

 NOTE: Notice of Appeal  must be served on all parties affected by the Appeal within 10 days of the Order being pronounced in open court. 

Where there is oral evidence given in the hearing of the matter the appeal will be heard by the High Court on Circuit.  Where no evidence is given the appeal is made to the High Court sitting in Dublin.

Hearing outside Dublin

Procedure

  1. Draft Notice of Appeal
  2. Have the Notice of Appeal stamped with € court fees in the District Court. (no court duty in family law cases)
  3. Serve copy of the Notice of Appeal  on all parties affected by the Appeal  within 10 days of the Order being pronounced in open court .
  4. Also within the 10 day period, endorse service on the Original Notice of Appeal and lodge along with copy Notice with the County Registrar.
  5. The Appeal is then automatically listed for the first available sessions of the High Court on circuit.
  6. Draft Affidavit of Service with (copy Certificate of registered post )of the Notice of Appeal on the other party or parties and have sworn.
  7. Prior to that date an attested copy of the Order or Judgement appealed must be lodged with the County Registrar along with an Affidavit of Service of the Notice of Appeal and where no oral evidence was given lodge also a copy of all documents and exhibits received in evidence or used upon the said hearing or determine.

Hearing in Dublin 

Notice of Appeal (plus copies thereof required) sent  to Law Agents asking them to

  1. Draft Notice of Appeal.
  2. Have Notice Stamped in District Court. (no stamp required in Family Law cases)
  3. Serve copy Notice of Appeal on other side by registered post and endorse service on the original.
  4. Send two copies of the endorsed Notice of Appeal to Law Agents along with the original certificate of registered post to be lodged in the Central Office of the High Court. A record no. will be allocated.
  5. Obtain copy of the Circuit Court Order and when same is available send same to Law Agents with two books of Pleadings (to include all pleadings in the Circuit Court hearing, the Notice of Appeal and the Order being appealed) to be lodged in the Central Office of the High Court and requesting Law Agents to obtain an Appeal number.
  6. Once the Booklet of Pleadings has been lodged the date for hearing should be about 4 to 6 weeks from that time.

WITHDRAWAL OF APPEAL

To withdraw a Notice of  Appeal lodge a letter consenting to the withdrawal of the Appeal with the Central Office of the High Court through Law Agents.

MONIES FROM COURT ON ATTAINING MAJORITY.

For documentation and correspondence see www.legalprecedents.ie Precedents/litigation/Circuit Court……/minor monies from Court

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