High Court of Ireland Decisions

THE HIGH COURT

[2025] IEHC 202

RECORD NO. 2024 4898 P

BETWEEN

AGNIESZKA NOWAK

Plaintiff

-AND-

 

THE COURTS SERVICE OF IRELAND

Respondent

Ex Tempore JUDGMENT of Ms. Justice Nuala Jackson delivered on the 1^st April 2025.

INTRODUCTION

1.      While it is not for me to make findings of fact in respect of the substantive dispute between the parties and, indeed, I could not and do not do so in circumstances in which I have the benefit only of affidavit evidence relating to a very confined issue, there would appear to be a good degree of consensus in relation to the background circumstances which arise from the notice given to the Plaintiff of an application which came before the court in the context of the restrictions of the Covid pandemic era.  The litigation concerned was between the Plaintiff and a third-party and the Defendant herein was not a party to such litigation.  There have been a variety of subsequent applications arising in the context of that original litigation but it does not appear to me that the substance of such earlier proceedings have any significant relevance to the issue before me which is a net issue.

2.      The Plaintiff asserts negligence on the part of the Defendant in relation to circumstances arising in the context of the original litigation and she has issued proceedings in this regard.  In the absence of having received a Defence within the statutorily prescribed time limits, the Plaintiff has issued a motion for judgment in default of defence and the Defendant responds arguing that an extension of time is the appropriate order to be made.

3.      The timeline is agreed.  The assiduous timekeeping by the Plaintiff cannot be questioned.  She is to be complimented in this regard.  Of course, it must be remembered that Plaintiffs have very considerable time available in terms of the time for preparation prior to the date when they decide to issue proceedings (subject to limitation periods).  The time afforded for responding to such litigation is considerably more curtailed and the legal principles applicable in this context must be viewed in that context.   Here the chronology is as follows:

i.        Plenary Summons issued on the 6^th September 2024.  It was served on the same date and service is endorsed on the Summons.

ii.      The Statement of Claim accompanied the Summons and is likewise dated the 6^th September 2024.

iii.    What is commonly called "a 28-day letter" was served by the Plaintiff on the 4^th November 2024.  This letter references Order 21, rule 1(b) of the Rules of the Superior Courts and the fact that a defence has not been delivered within the eight week period set down in the Rules of Court:

"1. Where a defendant enters an appearance to a plenary summons he shall, subject to the terms of any order of the Court made in the proceedings, including any order made in accordance with Order 122,  rule 7, deliver his defence and counterclaim (if any):

(a) in case he does not by notice require a statement of claim, within eight weeks from the entry of appearance; or
(b) in any other case within eight weeks from the date of delivery of the statement of claim or from the time limited for appearance, whichever shall be later."

The letter proceeds to consent to late delivery of the Defence within 28 days of the date of the letter.  This period expired on the 2^nd December 2024.

iv.    A Notice for Particulars was served by the Defendant under cover of a letter of the 26^th November 2024.  It is accepted by Counsel for the Defendant herein that the service of such Notice does not "stop the clock" for the purposes of pleading time periods.  The letter does expressly state that the particulars are required by the Defendant in order to deliver a defence on behalf of their client.

v.      Yet again, displaying her most admirably prompt actions in relation to the within proceedings, the Plaintiff responded to these Particulars by email on the 29^th November 2024. In this email, the Plaintiff re-iterated that the extension of time for the filing of a Defence afforded by the 28-day letter was expiring within a short period of days and she indicated that she intended, as she was undoubtedly entitled to do, to file a default of defence motion once that period had expired.

vi.    On the 4^th December 2024, the Defendant wrote indicating that the Replies to Particulars were being considered and that it was unreasonable to expect the Defence to be delivered less than one week after receipt of same.  The deadline was indicated to be the 5^th December 2024.  However, the letter does indicate that progress is being made.  It states that the defence is at an advanced stage and will shortly be delivered.  There is an express request to refrain from issuing a motion in default within such a short timeframe.

vii.  On the same day, the Plaintiff (by email) sets out her dissatisfaction with this and indicates that the Defendant has had 3 months and that the delay is unacceptable.  She proceeds to indicate that the Defendant has no defence as the error was admitted by the Defendant.  Clearly, the Plaintiff may hold this view but the position is not so straight forward.  The Defendant is entitled, by way of defence, to (a) put the Plaintiff on proof of what she asserts; (b) to contest liability at law and (c) to contest sequelae arising, in particular, quantum of loss.  It should be noted that the case referenced by the Plaintiff in this email concerned an entirely different piece of litigation to which the Defendant was not a party and which does not relate to the matters at issue between the parties in this litigation as addressed at (a) to (c) above.   In any event, the Plaintiff made it clear that she was proceeding to issue the motion in default in any event as she was not happy with the delay and lack of compliance with times as set out in the Rules of Court.

viii.   This motion then issued on the 5^th December 2024.

ix.    There was then correspondence subsequent to issuing putting forward proposals in relation to dealing with the motion.  The Defendant suggested an agreed extension of time.  The Plaintiff disagreed.  She wishes me to grant judgment in default of Defence.

 

4.      In this context, I am asked to consider Order 27 of the Rules of the Superior Courts.  This Order provides for time extensions in various contexts (including defaults of pleadings (SOC) by plaintiffs).  The relevant rule here is Rule 9 of Order 27:

"1) In all actions other than those in the preceding rules of this Order mentioned, if a defendant being bound to deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 10, set down the action on motion for judgment; and on the hearing of such application the Court shall, where it is satisfied that the defendant has been served with notice of the application, give to the plaintiff such judgment for such specific relief claimed in the statement of claim to which it considers the plaintiff to be entitled, unless the Court is satisfied, for reasons to be recited in the order, that that it is necessary in the interests of justice that the time for delivery of the defence should be extended, in which case the provisions of sub-rule (2) will apply.

(2) Where the Court is satisfied to extend the time for delivery of the defence under sub-rule (1), the Court shall, to the extent possible, determine the specific relief claimed in the statement of claim to which it considers the plaintiff to be entitled in the event of the failure of the defendant to deliver a defence, and shall make an order:

(a) extending the time for delivery of a defence for such period as the Court considers necessary in all of the circumstances and directing the filing of a copy of the defence within that period in the Central Office, and

(b) further providing that, in the event that the defendant fails to deliver and file the defence within that period, the plaintiff shall have liberty to enter judgment (without further order) for the specific relief claimed in the statement of claim to which the Court has found the plaintiff to be entitled as aforesaid."(emphasis added)

5.      The applicable test under the Rules is clear;-  Am I satisfied that it is necessary in the interests of justice that the time for the delivery of the defence should be extended?

6.      This provision has been considered in a number of decisions.  Clarke J. in Comcast International Holdings Inc & Ors v Minister for Public Enterprise & Ors [2012] IESC 50 considers the term "interests of justice" in the context of an earlier provision of Order 27 (default by a Plaintiff).  He states

"It seems to me that O.27 r. 1 and r. 1A are primarily designed as a method of speeding up proceedings even though the form of the order which may ultimately be sought, is to dismiss for want of prosecution.  That situation is analogous to that which now pertains under Order 27 r. 8 where, in the cases to which that rule applies, a plaintiff is required to write a similar letter extending time for defence prior to initiating a motion for judgment in default of defence.  While the ultimate order which would be sought in the absence of the defence being filed within the extended period granted by the letter is an order for judgment nonetheless the primary purpose of the order is to provide a mechanism whereby the filing of a defence may be speeded up rather than the proceedings brought to an end."

7.      The defendant also references the judgment of Dignam J. in Bergin v. McGuinness [2022] IEHC 151, also a motion to dismiss for want of prosecution, where the words of Clarke J. are agreed with and are endorsed (at paragraph 57 of the judgment).

8.      I have also had regard to the decision of Hogan J. in Gokul v. Aer Lingus [2013] IEHC 432.  This case involved extending time for the entry of an Appearance but I believe it to be most useful guidance in the context of interpreting the Rules of the Superior Courts and the interests of justice principle.  At Paragraph 14, Hogan J. states:

"It might also be observed that a construction of the Rules of the Superior Courts which insisted on perfect and undeviating compliance with the requirements of the Rules would be at odds with fundamental principles regarding the constitutional right of access to the courts. The contemporary case-law is clear that legislative provisions which regulate the right of access to the courts must be interpreted in a manner which respects these fundamental principles: see, e.g., Re MJBCH Ltd. (in liquidation) [2013] IEHC 256,  Dunmanus Bay Mussels Ltd. v. Acquaculture Licence Appeals Board [2013] IEHC 214 and O'Higgins v. University College, Dublin [2013] IEHC 431."

9.      I have also considered the authorities referenced by the Plaintiff herein.  The Nowak v Courts Service [2024] IECA 266 decision concerned the commencement of judicial review proceedings, proceedings the institution of which are subject to strict time limits under the Rules of Court subject to a provision to apply for an extension of time which had not been invoked in that case.  This is clearly set out in paragraphs 15 and 16 of the judgment of Costello J. (as she then was).  This is an entirely different statutory provision to the present with different principles applicable.  The judgment of Simons J. in Farrell v. RAS Medical Ltd t/a Auralia Clinic & Ors [2024] IEHC 369 relates to the tests applicable to the setting aside of judgments obtained subsequent to the granting of an unless order.  The test in that instance is one of special circumstances, a different test to the present, which is the interests of justice.

10.  The Defence here is ready, indeed, it has been delivered, albeit out of time.

11.  I am required by Order 27, rule 9(1), in the event that I determine an extension of time ought to be granted, to recite the reasons why I consider it to be in the interests of justice to grant an extension of time.   I have so determined.  The reasons for my so doing are:

i.        The defence has been delivered.  The Plaintiff has had it now since 5^th February 2025.

ii.      The delay concerned, while it was a delay, was not inordinate.

iii.    The issue of particulars did arise and, while not stopping the clock, it may result in efficiencies in due course to have the particulars addressed prior to the defence being filed, and it may indeed avoid issues of possible amendments of pleadings subsequently. In my view, the raising of particulars and, in particular, the replies to them were dealt with promptly on all sides.

iv.    There was ongoing engagement between the parties and the Plaintiff was not ignored. Her correspondence was not ignored. The Plaintiff was kept informed of progress at all times

v.      This is the first motion and these proceedings are progressing with reasonable expedition, undoubtedly, assisted by the prompt responses and actions of the Plaintiff for which she is to be commended.

vi.    Most importantly, no prejudice of any substantial nature has been caused to the Plaintiff in this matter. However, substantial will be caused to the Defendant if not permitted to defend.  I reference again the judgment of Hogan J. in Gokul v. Aer Lingus [2013] IEHC 432 - there is a right of access to the court which is a fundamental principle of constitutional justice in Ireland, which principle avails not only Plaintiffs but Defendants also.

 

12.  In those circumstances I will extend time by seven days.  I am making an indicative order of no order as to costs (on the basis that the Defendant was in default but was successful in the arguments made at the hearing of the motion herein) but I will give either party liberty to apply within 7 days if they are not satisfied.  There was a delay and one which the Plaintiff was entitled to move along by the issuing of a default motion but there was also constructive engagement with which the Plaintiff was unprepared to engage and the Defendant has succeeded in the point argued at hearing.