S.I. No. 14/1989:

RULES OF THE SUPERIOR COURTS (No. 1), 1989.

RULES OF THE SUPERIOR COURTS (No. 1), 1989.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48) and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 16th day of January, 1989.

I concur in the making of the annexed Rules of Court

Dated this 24th day of January, 1989

Gerard Collins,

Aire Dlí agus Cirt

S.I. No. 14 of 1989.

RULES OF THE SUPERIOR COURTS (NO. 1), 1989.

1. The following additional Rule shall be inserted immediately after Order 4, rule 1, viz.

"1A. Where an indorsement of claim on an originating summons concerns a claim which by virtue of the 1988 Act, the Court has power to hear and determine, the following provisions shall apply:

(1) The originating summons shall be indorsed before it is issued with a statement that the Court has power under the 1988 Act to hear and determine the claim, and shall specify the particular provision or provisions of the 1968 Convention under which the Court should assume jurisdiction, and

(2) The originating summons shall be indorsed before its issue with a statement that no proceedings between the parties concerning the same cause of action is pending between the parties in another Contracting State.

(3) In this rule, the "1968 Convention" and "the 1988 Act" have the same meaning as in Order 11A, rule 8."

2. Order 5, rule 14 shall be deleted and the following substituted therefor.

"14 (1) Save as is otherwise provided for in these Rules, no summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without leave of the Court.

(2) An originating summons to which Order 11A, rule 2 applies and which is to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, may be issued without leave of the Court, if, but only if, it complies with the following conditions--

( a ) each claim made by the summons is one which, by virtue of the 1988 Act, the Court has power to hear and determine; and

( b ) the summons is indorsed before it is issued with a statement that the Court has power under the 1988 Act to hear and determine the claim and specifying the particular provision or provisions of the 1968 Convention under which the Court should assume jurisdiction; and

( c ) the summons is indorsed with a statement that no proceedings concerning the same cause of action are pending between the parties in another Contracting State.

(3) In this rule--

"the 1968 Convention", "Contracting State" and "the 1988 Act" have the same meaning as in Order 11A, rule 8."

3. Order 11, rule 1 is hereby amended by the insertion immediately before the words "Service out of the jurisdiction of an originating summons" of the following: "Provided that an originating summons is not a summons to which Order 11A applies", and the preamble to the said rule 1, as so amended, is set out in the Table to this Article.

TABLE

1. Provided that an originating summons is not a summons to which Order 11A applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court whenever--

4. The following additional order shall be inserted immediately after Order 11.

"ORDER 11A

SERVICE OUT OF THE JURISDICTION UNDER THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT, 1988.

1. The provisions of this Order only apply to proceedings which are governed by the terms of the 1968 Convention and the 1988 Act.

2. Service of an originating summons or notice of an originating summons out of the jurisdiction is permissible without the leave of the Court, if, but only if, it complies with the following conditions:

(1) The claim made by the summons is one which by virtue of the 1988 Act the Court has power to hear and determine; and

(2) No proceedings between the parties concerning the same cause of action is pending between the parties in another Contracting State; and

(3) Either

( a ) the defendant is domiciled in any Contracting State, or

( b ) the proceedings commenced by the originating summons are proceedings to which the provisions of Article 16 of the 1968 Convention concerning exclusive jurisdiction apply, or

( c ) the defendant is a party to an agreement conferring jurisdiction to which the provisions of Article 17 of the 1968 Convention concerning prorogation of jurisdiction apply.

3. Where an originating summons or notice of an originating summons is to be served out of the jurisdiction under rule 2, the time to be inserted in the summons within which the defendant served therewith shall enter an appearance (including an appearance entered solely to contest jurisdiction by virtue of Article 18 of the 1968 Convention) shall be --

(1) five weeks after the service of the summons exclusive of the day of service where an originating summons or notice of an originating summons is to be served in the European territory of another Contracting State, or

(2) six weeks after the service of the summons exclusive of the day of service where an originating summons or notice of an originating summons is to be served under rule 2 in any non-European territory of a Contracting State.

4. (1) Where two or more defendants are parties to proceedings to which the provisions of Order 11A apply, but not every such co-defendant is domiciled in a Contracting State, then the provisions of Order 11 requiring leave to serve out of the jurisdiction shall apply to each and every such co- defendant.

(2) This rule shall not apply to proceedings to which the provisions of Article 16 of the 1968 Convention concerning exclusive jurisdiction or Article 17 of the 1968 Convention concerning prorogation of jurisdiction apply. Service of such proceedings on all co-defendants shall be governed by the provisions of Order 11A.

5. (1) Subject to the provisions of the 1968 Convention, where the parties to any contract have agreed without conferring jurisdiction for the purpose of Article 17 of the 1968 Convention, that service of any summons in any proceedings relating to such contract may be effected at any place within or without the jurisdiction on any party or on any person on behalf of any party or in any manner specified or indicated in such contract, then, in any such case, notwithstanding anything contained in these Rules, service of any such summons at the place (if any) or on the party or on the person (if any) or in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident. If no place, or mode, or person be so specified or indicated, service shall be effected in accordance with these Rules.

(2) Where a contract contains an agreement conferring jurisdiction to which the provisions of Article 17 of the 1968 Convention concerning prorogation of jurisdiction apply and the originating summons is issued for service out of the jurisdiction without leave under rule 2 of this Order and is duly served in accordance with these Rules, the summons or notice of a summons shall be deemed to have been duly served on the Defendant.

6. Where the defendant is not, or is not known or believed to be a citizen of Ireland, notice of the summons, and not the summons itself, shall be served upon him.

7. Subject to the provisions of this Order, notice in lieu of summons shall be given in the manner in which summonses are served.

8. For the purposes of this Order-- 

"domicile" is to be determined in accordance with the provisions of Articles 52 and 53 of the 1968 Convention and section 13 of the 1988 Act.

"Contracting State" means Contracting State as defined by section 1 (1) of the 1988 Act.

"the 1968 Convention" means the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (including the Protocol annexed to the Convention) signed at Brussels on the 27th September, 1968 and is to be construed in accordance with section 1 (3) of the 1988 Act.

"the 1988 Act" means the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 ."

5. Order 12, Rule 2 shall be deleted and the following substituted therefor:

"2 (1) Save as otherwise provided for in rule 2 (3), an appearance to any plenary summons, or summary summons shall be entered within eight days after the service of the summons, exclusive of the day of service, unless the Court shall otherwise order.

(2) Save as otherwise provided for in rule 2 (3), a defendant in proceedings commenced by special summons may enter an appearance thereto at any time, but shall not, without the leave of the Court, be entitled to be heard in such proceedings unless he has entered an appearance.

(3) An appearance to an originating summons in respect of proceedings issued for service out of the jurisdiction under Order 11A, rule 2 (including an appearance entered solely to contest jurisdiction by virtue of Article 18 of the 1968 Convention) shall be entered --

(a) within five weeks after the service of the summons exclusive of the day of service where an originating summons or notice of an originating summons is to be served in the European territory of another Contracting State, or

(b) within six weeks after the service of the summons exclusive of the day of service where an originating summons or notice of an originating summons is served in any non-European territory of a Contracting State or on any co-defendant who is not domiciled in a Contracting State.

(4) In this rule, "Contracting State", "the 1968 Convention" and "domicile" have the same meaning as in Order 11A, rule 8."

6. The following additional order shall be inserted immediately after Order 13:

"ORDER 13A

DEFAULT OF APPEARANCE UNDER THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT, 1988 .

1. Where an originating summons has been issued for service out of the jurisdiction under Order 11A, rule 2, the plaintiff shall not be entitled to enter judgment under this Order except with leave of the Court.

2. An application for leave to enter judgment shall be made on notice and shall be supported by an affidavit stating that in the deponent's belief:

(1) Each claim made by the summons is one which by virtue of the 1988 Act the Court has power to hear and determine;

(2) No other Court has exclusive jurisdiction within the meaning of the 1968 Convention to hear and determine such claim; and

(3) Where the summons or notice of the summons is served out of the jurisdiction under Order 11A, rule 2, such service satisfies the requirements of the 1968 Convention;

and giving in each case the source of grounds of such belief.

3. In the case of default of appearance by any defendant to an originating summons, the plaintiff shall:

(1) in the case of a plenary summons, deliver a statement of claim by filing the same in the Central Office; or,

(2) in the case of a special summons, file a grounding affidavit in the Central Office; or,

(3) in the case of a summary summons, file an affidavit in the Central Office verifying the facts relied upon;

and thereupon may apply to Court for judgment in default of appearance.

4. Subject to the provisions of this Order, Order 13 shall, so far as practicable, apply to applications under this Order for leave to enter judgement.

5. For the purpose of this Order--

"the 1968 Convention" and "the 1988 Act" have the same meaning as in Order 11A, rule 8."

7. The following additional rule shall be inserted immediately after Order 19, rule 3, viz.

"3A Where a statement of claim concerns a claim which by virtue of the 1988 Act, the Court has power to hear and determine, the following provisions shall apply:

(1) The statement of claim shall be indorsed with a statement that the Court has power under the 1988 Act to hear and determine the claim and shall specify the particular provision or provisions of the 1968 Convention under which the Court should assume jurisdiction; and

(2) The statement of claim shall be indorsed with a statement that no proceedings between the parties concerning the same cause of action are pending between the parties in another Contracting State.

(3) For the purposes of this Order--

"the 1968 Convention", "Contracting State" and "the 1988 Act" have the same meaning as in Order 11A, rule 8."

8. The following additional rules shall be inserted immediately after Order 29, rule 7, viz.

"8. No defendant shall be entitled to an order for security for costs in proceedings for the enforcement of a judgment under the 1988 Act solely on the ground that the plaintiff is a foreign national or that he is not domiciled or resident in the State.

9. For the purposes of rule 8, "domicile" and "the 1988 Act" have the same meaning as in Order 11A, rule 8."

9. The following additional Order shall be inserted immediately after Order 42, viz.

"ORDER 42A

PROTECTIVE MEASURES AND ENFORCEMENT OF JUDGMENTS, AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS UNDER THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT, 1988 .

1. An application for provisional, including protective, measures under section 11(1) of the 1988 Act shall be made ex parte to the High Court.

2. An application for such provisional, including protective measures shall be made ex parte grounded upon affidavit specifying the said measures pursuant to section 11 (1) of the 1988 Act. The affidavit by which an application is made, in addition to setting out the information and exhibiting the documents necessary to ground the application, shall:

(a) state the nature of the proceedings or intended proceedings and exhibit a certified true copy of the document or documents used or proposed to be used to institute the proceedings;

(b) specify the Contracting State (other than the State) in which the proceedings have been commenced or are to be commenced; and

(c) state the particular provision or provisions of the 1968 Convention by which the Court of the Contracting State (other than the State) has assumed jurisdiction or, in the case of intended proceedings, would be entitled to assume jurisdiction.

3. The Court may make ex parte any interim order pursuant to section 11 (1) of the 1988 Act upon such terms as to costs or otherwise or subject to such undertaking, if any, as the Court may think just; and any party affected by such order may move to set aside. Every application for an interlocutory order pursuant to section 11 (1) of the 1988 Act shall be brought by notice of motion.

4. An application for enforcement of a judgment under section 5 of the 1988 Act shall be made ex parte to the Master of the High Court.

5. An application for such enforcement shall be made by motion ex parte grounded upon an affidavit specifying the protective measures (if any) requested by the applicant pursuant to section 11 (3) of the 1988 Act and exhibiting:

(1) The judgment which is sought to be enforced or a certified or otherwise duly authenticated copy thereof;

(2) In the case of a judgment given in default, the original or a certified copy of the document which establishes that the party in default was served with the document or documents instituting the proceedings or with an equivalent document or documents in sufficient time to enable him to arrange for his defence;

(3) Documents which establish that, according to the law of the state in which it has been given, the judgment is enforceable and has been served;

(4) Where appropriate, a document showing that the applicant is in receipt of legal aid in the state in which the judgment was given.

6. The affidavit grounding the application for enforcement shall also state:

(1) Whether the said judgment provides for the payment of a sum or sums of money;

(2) Whether interest is recoverable on the judgment or part thereof in accordance with the law of the state in which the judgment was given, and if such be the case, the rate of interest, the date from which interest is recoverable, and the date on which interest ceases to accrue;

(3) An address within the State for service of proceedings on the party making the application and, to the best of the deponent's knowledge and belief, the name and usual or last known address or place of business of the person against whom judgment was given;

(4) The grounds on which the right to enforce the judgment is vested in the party making the application;

(5) As the case may require, that at the date of the application the judgment has not been satisfied, or if the judgment has not been fully satisfied, the part or amount in respect of which it remains unsatisfied.

7. Where the party making the application under rule 4 does not produce the documents referred to in rules 5 or 6 of this Order, the Master of the High Court may, if he sees fit, adjourn the application in order to allow the applicant an opportunity to produce the said documents or, alternatively, accept equivalent documents, or, dispense with production of the said documents.

8. An order granting leave to enforce a judgment under section 5 of 1988 Act shall state in accordance with Article 36 of the 1968 Convention the period within which an appeal may be made against the order for enforcement, and shall contain a notification that execution of the judgment will not issue until after the expiration of that period and shall specify the protective measures (if any) granted pending execution.

9. Notice of an order granting leave to enforce a judgment under section 5 of the 1988 Act shall be served together with the order on the person against whom the order was made by delivering it to him personally, or in such other manner as the Master of the High Court may direct. Such notice and order may be served outside the jurisdiction without leave of Court and the provisions of Order 11A shall apply in relation to such a notice as they apply in relation to an originating summons.

10. The notice of enforcement shall state--

(a) full particulars of the judgment declared to be enforceable and the order for enforcement,

(b) the name of the party making the application and his address for service within the State,

(c) the protective measures (if any) granted in respect of the property of the person against whom judgment was given,

(d) the right of the person against whom judgment was given to appeal to the High Court against the order for enforcement, and

(e) the period within which an appeal against the order for enforcement may be made.

11. If enforcement is authorised by the Master of the High Court, the party against whom enforcement is sought may appeal against the order to the High Court within one month of service thereof. If that party is domiciled in a Contracting state other than the State, the time for appealing shall be two months and shall run from the date of service thereof. All such appeals shall be brought by notice of motion which shall be served on the party in whose favour the order for enforcement was granted by the Master of the High Court. The High Court shall have power to stay the proceedings, on such terms as it sees fit, if an ordinary appeal has been lodged against the judgment which is sought to be enforced in the Contracting State in which that judgment was given; or if the time for such an appeal has not yet expired, the High Court may specify the time within which such an appeal is to be lodged in the courts of that Contracting State.

12. If the application for enforcement of the judgment is refused, the applicant may appeal to the High Court within five weeks from the perfection of the order of the Master of the High Court. The appeal shall be brought by notice of motion grounded upon an affidavit establishing that the party against whom enforcement is sought has been notified of the appeal and the date specified for the hearing of the appeal in sufficient time to enable him to arrange for his defence or, alternatively, that all necessary steps have been taken to this end.

13. Execution shall not issue on a judgment declared enforceable under section 5 of the 1988 Act until after the expiration of the period specified in accordance with rule 11 of this Order, or if that period has been extended by the Court, until after the expiration of any such extended period. If an appeal is made to the High Court under rule 11, execution of the judgment shall not issue until after such appeal (including a further appeal on a point of law to the Supreme Court) is determined. Any party wishing to issue execution on a judgment declared to be enforceable under section 5 of the 1988 Act must produce to the appropriate officer an affidavit of service of the order granting leave to enforce a judgment under section 5 of the 1988 Act and of any order made by the Master of the High Court, the High Court or the Supreme Court (as the case may be) in relation to the judgment.

14. The following provisions shall apply to appeals on a point of law to the Supreme Court under Articles 37 or 41 of the 1968 Convention from a decision of the High Court granting or refusing recognition or enforcement (as the case may be) of a judgment:

(1) Every such appeal shall be by notice of appeal in accordance with Order 58, rule 1 of these Rules; and such notice of appeal shall be served within five weeks from the perfection of the order of the High Court.

(2) It shall be the duty of the Registrar of the Supreme Court to apply to the appropriate Registrar of the High Court for a signed copy of the note made by the High Court Judge of any question of law raised before him and of the facts and evidence relating thereto and of his decision thereon and on the question or matters submitted to him. Such copies shall be received for the use of the Supreme Court and shall be used and received at the hearing of the appeal. The Registrar of the Supreme Court shall further apply to such appropriate High Court Registrar for the transmission to him for the use of the Supreme Court of a file of all documents and papers relating to the case. If such note as aforesaid cannot be produced, the Supreme Court shall have power to hear and determine the appeal upon any other evidence or statement of what occurred before the High Court Judge which the Supreme Court may deem sufficient.

(3) Subject to the provisions of this rule, Order 58 shall, so far as practicable, apply to appeals on a point of law under Articles 37 or 41 of the 1968 Convention.

15. The foregoing rules of this Order shall apply to an application for recognition of a judgment as they apply to an application for enforcement of a judgment with the exception that the applicant shall not be required to produce the documents referred to in Order 42A, rule 5 (3) and (4).

16. The foregoing rules of this Order shall apply as appropriate to an application for the enforcement of an instrument or settlement referred to in Title IV of the 1968 Convention with the exception that the said application shall be made in the first instance ex parte to the High Court.

17. Where any judgment, order or document which is required for the purposes of this Order is not in one of the official languages of the State, a translation thereof into the Irish or English language certified by a person competent and qualified for the purpose in one of the Contracting States, shall be admissible as evidence of same. The competence and qualification of the translator shall be verified by affidavit.

18. In the case of a judgment of the High Court or the Supreme Court sought to be enforced in another Contracting State, a Registrar of the High Court or the Registrar of the Supreme Court (as the case may be) shall, at request of an interested party, give such party a copy of the order and the written judgment (if any) of the Court duly authenticated.

19. (1) In the case of a judgment of the High Court or the Supreme Court sought to be enforced or recognised in another Contracting State, an application under section 12 (b) of the 1988 Act for a certificate signed by a Registrar of the High Court or the Registrar of the Supreme Court (as the case may be) shall be made on affidavit to the said Registrar.

(2) The affidavit by which an application is made shall:

(a) state the nature of the proceedings,

(b) state the particular provision or provisions of the 1968 Convention by which the Court assumed jurisdiction,

(c) state the date on which time for the lodging of an appeal against the judgment will expire or, if it has expired, the date on which it expired,

(d) state whether notice of appeal against, or in any case where the defendant does not appear, a notice to set aside, the judgment has been entered,

(e) state whether the judgment is for the payment of a sum of money, the rate of interest, if any, payable on the sum and the date from which interest is payable,

(f) include annexed thereto two certified true copies of the originating summons or other process by which the proceedings were begun together with one copy of all the pleadings.

(3) The certificate signed by the Registrar of the Court shall be in accordance with Form No. 1 in Part III of Appendix F and shall be sealed with the seal of the High Court (or, the Supreme Court, as the case may be), having annexed to it a certified true copy of the originating summons or other process by which the proceedings were commenced.

(4) In the case of a judgment in default of appearance, the affidavit grounding an application under sub-rule 2 above shall, in addition, for the purpose of applying for a document certified under section 12 (c) of the 1988 Act, exhibit a certified true copy of the document which establishes that the person in default was served with the document instituting the proceedings.

20. In this Order--

"the 1968 Convention", "Contracting State", "the 1988 Act" and "domicile" have the same meaning as in Order 11A, rule 8."

10. The following additional rule shall be inserted immediately after Order 121, rule 2, viz .

"2A The delivery or service of any document under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 , for which personal service is not required, shall be effected by leaving the document or a copy thereof (as may be appropriate) at, or sending the document or copy thereof (as may be appropriate) by registered pre-paid post to, the residence or place of business of the person to be served or the place of business of the Solicitor or Notary or other duly authorised agent (if any) acting for him in the proceedings to which the document relates."

11. These rules shall be construed together with the Rules of the Superior Courts and may be cited as the Rules of the Superior Courts (No. 1), 1989.

12. These rules shall come into operation on 1 February, 1989.

APPENDIX F

PART III.

0.42A

CERTIFICATE

No. 1.

Certificate under section 12 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988

THE HIGH COURT

[or THE SUPREME COURT]

I, E.F., a Registrar of the High Court of Ireland [or the Registrar of the Supreme Court of Ireland] hereby certify:

1. That the originating summons [or, other originating process as the case may be], a certified true copy of which is annexed hereto was issued out of the Central Office of the High Court of Ireland on the day of 19, by A.B. the above-named plaintiff against C.D., the above-named defendant for (here state nature of the proceedings and the relief claimed).

2. That the Court assumed jurisdiction in these proceedings pursuant to the particular provision(s) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (including the Protocol annexed to the Convention) signed at Brussels on the 27th September, 1968 (here state the particular provision(s) of the 1968 Convention).

3. That the said originating summons [or other originating process as the case may be] was duly served on the   day of    19 , upon the said C.D. by (state mode of service).

4. That C.D. entered an appearance [or did not enter an appearance].

5. That C.D. was represented [or was not represented] at the hearing of the proceedings.

6. That the said plaintiff [or defendant] obtained judgment against the said defendant [or plaintiff] in the High Court [or Supreme Court] for (state relief ordered) [together with an order for costs].

7. That the said judgement carries interest at the rate of ------ per cent per annum on the judgement debt and costs from date of judgment until payment.

8. That the time for lodging an appeal against the judgment expired [or will expire] on the day of 19 .

9. That no application to set the judgment aside [or no appeal against the judgment] has been brought within the time prescribed.

10. That enforcement of the judgment is not for the time being stayed or suspended and that the time available for its enforcement has not expired.

11. This certificate is issued under section 12 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 .

Dated the  day of , 19 .

(Signed) E.F. a Registrar of the High Court of Ireland [or the Registrar of the Supreme Court of Ireland]

EXPLANATORY NOTE

These rules, which come into operation on 1 February, 1989, regulate the practice and procedure of the Superior Courts under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 which makes provision in relation to the reciprocal recognition and enforcement of judgments in civil and commercial matters as between the State and certain Member States of the European Communities.