In the High Court, the person who is bringing the case, that is, the person who is suing, is known as the plaintiff. The person who is being sued is known as the defendant.
To commence proceedings, that is, to start a legal action, the plaintiff's barrister prepares an originating summons. The purpose of this document is to state the case being made against the defendant.
When the defendant receives the summons, they must enter an appearance to show that they are now a party to the case.
Depending on the type of originating summons, the plaintiff may have to serve a statement of claim on the defendant. When the defendant has received the statement of claim, they will issue a defence, setting out why the defendant is not to blame.
If the defendant believes that they actually have a claim against the plaintiff, the defendant will include a counterclaim with the defence setting out their claim against the plaintiff.
Usually proceedings in the High Court are commenced by an originating summons.
After the summons has been prepared by your barrister, your solicitor takes it to the Central Office to be issued - this involves paying the stamp duty. After the stamp duty has been paid, the summons is stamped and it is ready to be served on the defendant. There is more information in Order 5 of the Rules of the Superior Courts.
There are 3 types of originating summons:
There is more information on originating summons on the Courts Service website.
All originating summonses must contain the following information:
To serve an originating summons, a copy of the summons must be handed to the defendant and they must be shown the original. The summons can be served on the defendant's solicitor if they accept service on behalf of their client and is authorised to do so. There is more information on serving a summons in Order 9 of the Rules of the Superior Courts.
When a defendant receives a plenary or a summary summons they should enter an appearance within 8 days. This time limit is not strict and in most cases, an appearance can be entered after the time has expired.
When a defendant receives a special summons they may enter an appearance at any time. They will not be heard at any proceedings unless they have entered an appearance.
Entering an appearance is a very important step as it indicates that the defendant intends to defend the proceedings.
To enter an appearance, the defendant must lodge a memorandum of appearance at the Central Office. The plaintiff's solicitor must then be notified by the defendant that an appearance has been entered.
Memorandum of appearance
The short form must contain the following information:
Further information on entering an appearance is available in Order 12 of the Rules of the Superior Courts.
If the case has been commenced by a plenary summons and the defendant has entered an appearance, then the next step is for the plaintiff to serve a statement of claim on the defendant.
The plaintiff has 21 days to deliver the statement of claim after the defendant has entered an appearance. If the plaintiff fails to deliver the statement of claim within the required time, the defendant can apply to the court to dismiss the action for want of prosecution.
It is not necessary to serve the statement of claim personally on the defendant – it may be sent by registered post.
The purpose of the statement of claim is to show the defendant the case that is being made against them and which they have to meet at the trial of the action.
The statement of claim must contain the following information:
Further information is available in Order 20 of the Rules of the Superior Courts.
The defendant must deliver a defence to the plaintiff and they must deliver the defence within 28 days of receiving the statement of claim. This time limit is not strict and in most cases, a defence can be delivered after the time has expired.
When they receive the statement of claim they may decide that not only have they done nothing wrong and the claim should not have been brought against them, but that they have a claim against the plaintiff. In those circumstances, they may wish to include a counterclaim with their defence.
There are no set rules about what must be contained in the defence. The document starts with the title of the proceedings and the record number.
It is up to the defendant to admit or deny the allegations that the plaintiff has made in their statement of claim. It is also up to the defendant to state any specific defence that they are relying on. For example, if the defendant is claiming that the plaintiff's claim has been brought outside of the time limits, then the defendant should specifically plead that fact in the defence.
If the plaintiff has made a specific allegation and the defendant fails to deny that allegation in the defence, it will be assumed that the defendant is admitting that the allegation is true. For example, if the plaintiff has claimed in the statement of claim that they were involved in a road traffic accident and the defence fails to deny that the road traffic accident occurred, then it is assumed that the defendant is admitting that the road traffic accident happened. It is not then necessary for the plaintiff to prove to the judge that the accident occurred.
On the other hand, when the defendant specifically denies a claim that the plaintiff has made, they are putting the plaintiff on proof of the allegation. This means that the plaintiff must prove that the claim is true. For example, if the defence specifically denies that the road traffic accident occurred, the plaintiff must prove it by introducing evidence in court.
If the defendant wishes to make a claim against the plaintiff, this can be done by adding a counterclaim section to the defence. This must clearly set out the allegations that the defendant is making against the plaintiff and what the defendant seeks from the court.
There is more information in Order 21 of the Rules of the Superior Courts.
It is often necessary to reply to points raised in a defence. If the plaintiff wishes to deliver a reply, they must do so within 14 days of receiving the defence unless the time is extended by the Court.
Where a counterclaim has been delivered by the defence, the reply is subject to the rules that apply to a defence.
Further information is available in Order 23 of the Rules of the Superior Courts.
If the defendant fails to enter an appearance, the plaintiff can apply to court for judgement in default of appearance. This means that because the defendant has failed to acknowledge the proceedings and indicate that they intend to defend them, the plaintiff may obtain a judgement from the court against the defendant without the need for a trial.
If the defendant fails to deliver a defence, the plaintiff can apply to Court for judgement in default of defence. This means that because the defendant has failed to send a defence to the plaintiff, the plaintiff may obtain a judgement from the court against the defendant without the need for a trial. There is more information in Order 27 of the Rules of the Superior Courts.
Where either plaintiff or defendant is unsure of the case they have to meet, they can seek particulars. It is a request for more information about the case. They can also seek further and better particulars about any matter stated in any pleading.
They can apply for the particulars by letter or seek an order from the Court.
Further information is available in Rules 7 and 8 of Order 19 of the Rules of the Superior Courts.
In general, in actions commenced by plenary summons a notice of trial (Form 18 or 19) is served by the plaintiff on the defendant and is set down for trial in the Central Office. At least 21 days’ notice must be given, unless shorter notice has been agreed. A motion to set aside the notice of trial must be brought within 4 days of the service of the notice.
If the plaintiff does not give notice of trial within 6 weeks after the close of the pleadings, or within such extended time as the Court may allow, the defendant may give notice of trial or may apply to the Court to dismiss the action for want of prosecution.
Notice of trial is given before setting down the action for trial. If the action is not set down by either party within 14 days of notice of trial being served, the notice of trial will no longer be in force.
The party setting down the proceedings for trial does so by delivering to the Central Office a copy of the notice of trial together with 2 copies of the whole of the pleadings (and of any letter or notice for particulars and reply to it), one of which is for the use of the judge at the trial.
Further information is available in Order 36 of the Rules of the Superior Courts.
When the case is set down for trial, it is assigned to the relevant listing for the type of case. Information on listing procedures is available on the Courts Service website.
The stamp duty that must be paid when a summons is issued is €190. The stamp duty for entering an appearance is €60.
There is no fee or stamp duty for lodging a defence.
Further information on High Court fees is available on the Courts Service website.
Your solicitor and barrister will also charge fees for their services.
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000. The Phone Service will operate Monday to Friday, 9am to 6pm during January 2017. You can also visit your local Citizens Information Centre.