Analysis: Significant procedural changes in civil litigation in the High Court
Kevin Healy, solicitor at Comyn Kelleher Tobin, provides an overview of coming changes to the practice and procedure of civil litigation in the High Court.
A variety of reforms to the practice and procedure of civil litigation in the Superior Courts is due to commence on 13 November 2021 through the introduction of the Statutory Instrument 490 of 2021 (SI 490/2021). These reforms will be implemented through the amended Rules of the Superior Courts and will have potentially adverse effects on the parties to litigation, in particular defendants.
The intention of these amendments is to improve the procedure in applications to the High Court for orders in default of defences, statements of claim and appearances and to both tighten and standardise time limits for the delivery of warning letters and pleadings.
What are the changes?
In particular, the new Rules provide for the following:
- That judgment be entered in a motion for judgment in default of defence or statement of claim except where justice requires an extension of time and, in that event, the court shall make an “unless order”, thus requiring one court hearing only. This is a significant departure from current practice where such an order would often only be made on a second motion to the court where a party had failed to comply with an earlier motion;
- The time allowed for the delivery of a statement of claim or a defence shall be eight weeks in all cases;
- The requirement to deliver a 28-day warning letter prior to bringing an application for judgment in default of pleading; and
- That a Plaintiff be required to serve the motion on the defendant in all applications for judgment in default of appearance.
What does this mean for parties?
Whilst the requirement for a 28-day warning letter and the standardisation of the time allowed to deliver certain pleadings is certainly a positive development, parties to litigation should be acutely aware of the impact of the introduction of a mandatory “unless order” in motions for default of pleading, particularly defendants as they are most often the party subject to a motion in default of pleading.
The current position is that it is quite rare for judgment to be granted on hearing of the first motion. Usually, the court will grant an extension of the time allowed by a certain number of weeks. In current practice, it is only on the hearing of a second motion that a court “shall” grant judgment, unless it is satisfied that special circumstances exist which explain and justify the failure to deliver the pleading in question. Even in such a case, it is not unheard of for a court to grant a further extension of time.
Once the new rules take force, these matters will no longer be at the courts’ discretion. Even where the court finds that justice requires an extension of time, it will be obliged to make an “unless order”. What this means is that unless the pleading is delivered within that further period of time, judgment shall be entered for the plaintiff without the necessity for further application to the court for the purposes of obtaining judgment in default of pleading.
Where judgment in default of defence is entered in claims commenced by personal injuries summons, the plaintiff’s claim will proceed by way of assessment of damages only.
There is a provision in the rules for judgment to be set aside by the court in “special circumstances”. It remains to be seen how the court will approach these applications but it is likely that these “special circumstances” will be found in very limited cases.
When will these rules apply?
The commencement date is 13 November 2021. The new rules will apply to all High Court proceedings, regardless of whether issued before or after the commencement date. They will not, however, apply to motions issued in advance of commencement.
The new rules bring about significant changes to both the timelines for delivery pleadings and the consequences for non-delivery. The removal of judicial discretion and the necessity for second or even third motions in default should have an impact on court motion lists.
These changes are significant for all parties to litigation and their solicitors and indicate a strong commitment by the court rules committee to improve and streamline procedures for applications to the High Court.