That a Plaintiff be required to serve the motion on the defendant in all applications for judgment in default of appearance.<\/li>\n<\/ul>\nWhat does this mean for parties?<\/h3>\n
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 \u201cunless order\u201d in motions for default of pleading, particularly defendants as they are most often the party subject to a motion in default of pleading.<\/p>\n
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 \u201cshall\u201d grant\u00a0judgment, 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.<\/p>\n
Once the new rules take force, these matters will no longer be at the courts\u2019\u00a0discretion. Even where the court finds that justice requires an extension of time, it will be obliged to make an \u201cunless order\u201d. 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\u00a0for the purposes of obtaining judgment in default of pleading.<\/p>\n
Where judgment in default of defence is entered in claims commenced by personal injuries summons, the plaintiff\u2019s claim will proceed by way of assessment of damages only.<\/p>\n
There is a provision in the rules for judgment to be set aside by the court in \u201cspecial circumstances\u201d. It remains to be seen how the court will approach these applications but it is likely that these \u201cspecial circumstances\u201d\u00a0will be found in very limited cases.\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n
When will these rules apply?<\/h3>\n
The commencement date is\u00a013 November 2021.\u00a0The 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.<\/p>\n
Conclusion<\/h3>\n
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.<\/p>\n
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.<\/p>\n<\/p><\/div>\n
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