28/08/1923: Dail Eireann Courts (Winding Up) Rules, 1923.

PROVISIONAL RULES

MADE BY THE COMMISSIONERS BY VIRTUE OF SECTION TWENTY-ONE OF THE DAIL EIREANN COURTS (WINDING UP) ACT, 1923, AND DATED THIS 28TH DAY OF AUGUST, 1923.

WHEREAS section 21 of the Dáil Eireann Courts (Winding Up) Act, 1923, provides that the Commissioners appointed under that Act shall as soon as conveniently may be after their appointment make and publish rules regulating their procedure and may by such rules prescribe the forms to be used in proceedings before them;

And Whereas under the provisions of section 2 of the said Act James Creed Meredith was, on the 14th day of August, 1923, duly appointed to be Chief Judicial Commissioner, and Diarmaid Crowley and St. Laurence Devitt were duly appointed to be puisne Judicial Commissioners for the purposes of the said Acts;

Now, We, the said three Commissioners so appointed, have made and do hereby certify under our hands the rules and forms hereinafter set forth, and we do further certify that on account of urgency the said rules shall come into operation forthwith as provisional rules and shall continue in force until amended, supplemented, or rescinded as hereinafter provided.

1. (1).—These Rules may be cited as the Dáil Eireann Courts (Winding Up) Rules, 1923, and shall come into operation on the date hereof.

(2) Non-compliance with these Rules shall not render any proceedings void if the Commissioners shall otherwise direct; and the Commissioners may grant any extension of time or make any amendments and deal with any proceedings in such manner as the Commissioners shall think fit.

(3) These Rules may be amended, supplemented, or rescinded in whole or in part by the Commissioners from time to time.

(4) The Interpretation Act, 1889, shall apply for the purpose of the interpretation of these Rules as it applies for the purpose of the interpretation of an Act of Parliament

(5) In these Rules:—

The expression "The Act" means the Dáil Eireann Courts (Winding Up) Act, 1923.

The expression and words "the Commissioners," "Register," "registered decree," "Registrar," "Accountant," "Decree," "Dáil Court," and "Minister," have the meanings respectively assigned to them in the definitions in sub-section (1) of section 1 of the Act.

The word "pending" means pending in any Dáil Court at the date when the authority of such Court was withdrawn.

The word "Court" used in reference to proceedings under these Rules means the Commissioners, Commissioner, or Assistant Commissioner sitting for the hearing of the particular application or appeal in question.

2. (1) The Seal of the Commissioners shall be formed by three concentric circles between the inner two of which shall appear the words Between the outer and the next inner circle there shall be an appropriate border of Celtic design, and in the centre there shall be a Celtic design the pattern for which has been deposited with the Registrar and identified by the signatures of the Commissioners. The seal shall be affixed to all orders, judgments, and decrees registered under the Act, the prescribed time for appealing against the registration of which has expired, and on all certificates of the same, and on every warrant under section 19 of the Act, and on every information under section 9 of the Act, and shall be authenticated by the signature of the Registrar or one of the Commissioners.

(2) Pending the making of the seal as described in the last preceding paragraph of this Rule the private seal of the Chief Commissioner authenticated by the signatures of two of the Commissioners and of the Registrar may be used in cases of urgency as a temporary seal of the Commissioners in substitution for the regular seal.

3. (1)—Applications for the registration of decrees of a Dáil Court shall be made before the 25th day of October, 1923, the date prescribed by the Minister of Home Affairs under section 12, sub-section (1) of the Act.

(2) All such applications shall be in Form 1 in the Appendix, and may be sworn by any person cognisant of the facts.

(3) Every decree shall form the subject of a separate application.

(4) In any case in which it has not been possible to obtain the decree, or a copy thereof, the applicant shall state as nearly as possible the date on which it was made, and also the general nature of the decree.

(5) A notice of registration shall be in Form 2 in the Appendix, and must be completed and lodged with the Registrar at the same time as the application, and must be accompanied by one additional copy, which will be marked and returned, and a further additional copy for every interested party named in paragraph 5 of the application, with a stamped addressed envelope (of a suitable size for enclosing the form) for service of the notice on each such person.

(6) Where the Registrar refuses to register a decree he shall, as soon as may be, send notice of refusal to the applicant. Within fourteen clear days from the date of transmission of such notice, the applicant may lodge with the registrar notice of appeal. The Registrar shall list the appeal for hearing by the Commissioners, and shall give seven clear days' notice of the hearing to the applicant.

(7) When the Registrar has entered a decree in the Register, he shall transmit the notice in Form 2 to the interested parties. Within fourteen clear days from the date of the transmission of such notice any person objecting to the registration may lodge with the Registrar notice of appeal. The Registrar shall list the appeal for hearing by the Commissioners, and shall give seven clear days' notice of the hearing to the applicant.

(8) All appeals or notices in respect of the registration of decrees shall be prepared on Judicature paper.

(9) The Registrar may act on such evidence of the granting and terms of a decree as seems to him sufficient, notwithstanding any objection to the legal form of such evidence, but without prejudice to any right of appeal to the Commissioners against the decision of the Registrar.

(10). The powers exercisable by a Commissioner under paragraph (2) of Rule 1 may be exercised in the same way by the Registrar in all proceedings under this Rule.

4. (1) All appeals that were pending for hearing by the Dáil Supreme Court and all proceedings that were pending for hearing by a Circuit Court in Dublin, a list of which so far as appears from the records of the Dáil Courts at the date when the authority of such courts was withdrawn appeared in Iris Oifigiúil on the 14th day of August, 1923, shall be disposed of at the earliest opportunity, and, notwithstanding anything hereinafter contained, any person entitled to apply to have any such appeal or proceeding heard may apply to the Commissioners to fix the date of hearing of the same, and the Commissioners on such application being made shall give such directions for the hearing and direct such notices to be served as they shall think proper. Any person aggrieved by any omission from such list may apply to the Commissioners to have any additional entry made.

(2) Where the Registrar has notice, from the records of the Dáil Courts or otherwise, that a considerable number of proceedings were pending for hearing by a Circuit Court in any particular town or towns, arrangements may be made for a Commissioner to visit such town or towns for the purpose of disposing of such proceedings prior to the general circuit referred to in the next succeeding Rule. Due notice of the sitting of a Commissioner in any such town or towns and of the proceedings to be disposed of at such sitting shall be published in Iris Oifigiúil or given directly to all parties concerned by the Registrar. At any such sitting the Commissioner may dispose of any other proceedings awaiting a hearing, and of which due notice has been given.

5. A Circuit of all towns in which Dáil Circuit Courts were accustomed to be held and of such other towns as shall appear convenient shall be made by the Commissioners or by Assistant Commissioners as soon as practicable, and the list of towns to be visited and the dates on which sittings will be held shall be published in Iris Oifigiúil at least one clear week in advance. Such subsequent circuit or circuits shall be held as may be necessary to dispose of any outstanding local business.

6. Save where an application is made under Rule 4 of these Rules, all applications under section 4 of the Act for the hearing of pending proceedings or appeals and all appeals under section 5, sub-section (1) shall be on notice in Form 3 in the Schedule hereto. Fourteen clear days' notice shall be given to the Registrar in the case of proceedings or appeals that were pending in a Dáil Circuit Court or in the Dáil Supreme Court or, of appeals against registered decrees of Dáil Circuit Courts, and in all other cases seven clear days' notice.

7. (1) A notice under the last preceding Rule shall be served on all proper persons, and a copy lodged with the Registrar:—

(a) In the case of applications under section 4 of the Act not later than the 25th day of October, 1923;

(b) in the case of appeals from registered decrees of Dáil Parish Courts or of ordinary sittings of Dáil District Courts not later than fourteen clear days from the date of notice of registration of the decree;

(c) in the case of appeals from registered decrees other than those specified in the last preceding paragraph not later than twenty-one clear days from notice of registration of the decree.

(2) An application for leave to appeal against a registered decree of the Dáil Supreme Court shall be made within seven clear days from the date of notice of registration of the decree.

8. In the case of applications or appeals to be heard in the city of Dublin the time and place of hearing shall be ascertained from the Registrar before service of the notice and shall be specified in the notice. In the case of applications or appeals to be heard elsewhere than in the city of Dublin the notice shall specify as the place of hearing the town on the circuit list published under Rule 5 at which an analogous application or appeal would, if the claim were sufficient, have been heard by a Circuit Court under the practice of the Dáil Courts, and shall be for the first sitting of a Court to be held under these rules in the town specified after the expiration of seven, or, as the case may be, fourteen clear days from the date of the service of the notice.

9. No application or appeal under Rule 6 of which notice has not been given in accordance with the provisions of Rule 7 shall be entertained except with the leave of the Court, which leave shall only be granted on special grounds.

10. Applications under sections 8 or 9 of the Act shall be made on notice and shall be grounded upon affidavit. Copies of the notice and affidavit shall be lodged with the Registrar from whom the date of hearing shall be ascertained. The notice shall be served upon all proper persons three clear days before the hearing, provided that in cases of urgency the Commissioners may deem any notice actually given or service effected sufficient.

11. (1)—No appeal shall lie from an order of a Court consisting of not less than two Commissioners.

(2) No appeal shall lie from an order of a Commissioner or Assistant Commissioner made in a matter that was pending in a Dáil Parish Court, or made on appeal from a decree of a Dáil Parish Court, or from an order of a Commissioner made on appeal from the Registrar in relation to the registration or non-registration of a decree of a Dáil Court.

(3) An appeal from the order of a Commissioner or Assistant Commissioner shall be on notice in Form 4. in the Schedule to these Rules. The notice shall be served fourteen clear days before the date of hearing, and not later than one calendar month from the date of the order, provided that, where the appeal is on the report of the Commissioner or Assistant Commissioner and application for a copy of such report has been made within twenty-one clear days from the date of the order, the time shall be extended to one calendar month from the date on which such copy is furnished.

(4) All appeals on the report of a Commissioner or Assistant Commissioner shall be heard in Dublin by a Court consisting of not less than two Commissioners.

12. (1)—The following applications and appeals shall be heard by a Court consisting of not less than two Commissioners, one of whom, in the case of applications under (c) hereunder, shall be the Chief Commissioner:—

(a) Appeals pending in the Dáil Supreme Court;

(b) Appeals from registered decrees of a Circuit Sitting of Dáil Court;

(c) Applications under sections 8 or 9 of the Act.

(2) Where an application or appeal is heard by two Commissioners only and there is disagreement as to the decision the application or appeal shall be re-heard before a court consisting of not less than three Commissioners.

(3) Where an application or appeal is heard by three or more Commissioners the decision of the majority shall be the decision of the Court.

(4) Where an application or appeal is heard by four Commissioners and opinion is equally divided the Chief Commissioner shall have a casting vote which shall determine the decision of the Court.

(5) In all cases not herein otherwise provided for a Commissioner sitting alone shall constitute a quorum within the meaning of sub-section (2) of section 21 of the Act.

13. Where, in the case of any proceedings that were pending in the Dáil Supreme Court, the Judge's notes are not forthcoming, or are imperfect, the Commissioners may make any order that appears just and reasonable as to the re-hearing of such proceedings in whole or in part, or as to the trial of any particular issue, or as to the receiving of any additional evidence, and the Commissioners may in any such case accept a press report of the hearing, with such corrections or amendments as may be shown to be proper, or any agreed statement of the facts, and in general shall deal with the appeal in such manner as seems to them right or proper.

14. (1)—All appeals pending in Dáil Courts, other than appeals pending for hearing by the Dáil Supreme Court, and all appeals to the Commissioners from registered decrees of Dáil Courts shall be by way of re-hearing, except where the proceedings were heard before a Judge of the Dáil Supreme Court or a Judge of a Dáil Circuit Court, and such Judge shall furnish an adequate report of the proceedings.

(2) In the case of applications or appeals to the Commissioners it shall be in the absolute discretion of the Commissioner or Assistant Commissioner hearing the case to take a note or not to take a note for the purpose of any appeal that may be brought, and if the Commissioner or Assistant Commissioner shall take such a note and make a report which he certifies to be adequate, the appeal shall be on the report, and otherwise shall be by way of rehearing.

(3) A party intending to appeal shall only be entitled to a copy of the report of the Commissioner or Assistant Commissioner on payment of one-quarter of the Court fee payable on appeal (credit for which payment will be given in the event of the appeal being brought) in addition to any proper office charges.

15. Where, at the hearing by a Commissioner of any application or appeal, the parties consent to the employment of a stenographer the order of the Commissioner shall provide for the payment of the stenographer's fee, and, notwithstanding anything hereinbefore contained, if a stenographer is sworn, and a copy of his notes supplied to the Commissioner, any appeal from the order of the Commissioner shall be on the report of the Commissioner, which shall incorporate, summarise, or otherwise utilise the stenographer's notes in such manner as the Commissioner shall deem proper for the purpose of furnishing an adequate report. Where, in the report of a Commissioner in any such case, the stenographer's notes are not incorporated, the actual notes, or any part of them, may, if the Court shall think fit, be referred to, on the application of any party, or at the instance of the Court, on any appeal. Notice of any intended application by any party to refer to the actual notes of the stenographer in any such case shall be served three clear days before the hearing.

16. (1)—Service of any notice under these rules may be effected:—

(a) personally; or

(b) on a Solicitor who appeared for the person to be served in the original proceedings or in any proceeding under these rules, and who endorses acceptance of service on the copy of the notice lodged with the Registrar; or

(c) by registered letter.

(2) In the case of service by registered letter the date of service shall be the date at which the letter would reach the person served in the ordinary course of post.

(3) The Court may in any case direct any further or other service if not satisfied that due notice has been given by the service actually effected.

17. The venue for all appeals by way of re-hearing shall be the local venue unless otherwise ordered, and for all other appeals shall be the Court of the Commissioners, Dublin Castle.

18. A warrant under section 19 for the execution of a registered decree or order shall be in the appropriate form in the Schedule hereto, with such modifications as may be required, and may be obtained on a written application to the Registrar.

19. (1) The costs of all proceedings under these Rules shall be in the absolute discretion of the Court, and shall either be measured by the Court, or be referred for taxation to a Solicitor named by the Commissioners, either generally or specially, for the purpose.

(2) Where the costs are referred to a Solicitor for taxation they shall be taxed:—

(a) in the matter of proceedings that originated in a Dáil Parish Court or in a Dáil District Court, on a scale analogous to that on which costs are taxed in equity proceedings in the County Courts;

(b) in the matter of proceedings that originate in the Dáil Supreme Court, on a scale analogous to that on which costs are taxed in the High Court;

Provided that the costs of all appeals that were pending in the Dáil Supreme Court and of all appeals from a registered decree of a Dáil Circuit Court, heard by a Court consisting of not less than two Commissioners, shall be taxed on a scale analogous to that on which costs are taxed in the High Court.

(3) Where costs are taxed on a scale analogous to that on which costs are taxed in any of the Courts referred to in the last preceding paragraph, and a right of appeal from the taxation exists in such Court an analogous right of appeal to the Commissioners shal exist under this Rule.

(4) The fee to be paid to the Solicitor named under paragraph (1) of this rule shall be at the rate of £2 per cent. on the first £100 and £1 per cent. on each succeeding £100, and shall be paid by the Solicitor presenting the bill of costs, and shall be added to the bill before the latter is certified. The minimum fee shall be £2. In the event of one-sixth of the amount of the bill being taxed off the costs of taxation shall be disallowed.

SEUMAS C. MACMUIREADAIT.

DIARMAID Ó CRUADHLAOICH.

L. MAC DEIBID

BETWEEN

APPLICATION FOR REGISTRATION OF UNEXECUTED DECREE/ORDER.*

I,        of     the   in these proceedings make oath and say, as follows:—

1. On the  day of  19, I obtained a decree/dismiss/order* at the sitting of the above-named Court in proceedings entitled as set out above.

2. The particulars of the said decree/dismiss/order* are correctly set out in the Schedule hereto.

3. I rely on the following evidence of the said decree/dismiss/order* viz., (a)

4. The said decree/dismiss/order * is unexecuted to the following extent, that is to say:—

5. No person is interested in the said decree/dismiss/order* as Plaintiff or Defendant, or otherwise entitled to notice of this application other than the following (b):—

6. There was not on the day of any appeal pending against the said decree/dismiss/order *. (or The said served notice of Appeal against the said decree/dismiss/order* but the said Appeal was never heard, and this application is made subject to the right of appeal by the

said      ).

7. I apply to have the said decree/dismiss/order* registered for the purpose of execution.

SCHEDULE.

_______________________________________________________________________________________________

* Strike out any word which is not applicable, and in District Court cases state whether Ordinary or Circuit Sitting.

(a) Set out fully the evidence relied on as to terms of decree/order, dismiss, exhibiting any necessary documents.

(b) Set out in full names and addresses and post towns of persons interested.

FORM 2.

NOTICE OF REGISTRATION.

BETWEEN

TAKE Notice that an application has been lodged by the above-named     with the Registrar appointed under the above Act to have the Decree/Dismiss/Order/Judgment dated the   day of    19 . given in the above-mentioned proceedings entered on the Register with a view to its enforcement, and that the said Decree/Dismiss/Order/Judgment a copy of which is set out in the Schedule hereto has, in accordance with Section 12 (2) of the Act been entered in the Register.

And take further Notice that any person aggrieved by the registration of the said Decree/Dismiss/Order/Judgment may, not later than fourteen clear days from the date of this notice, lodge with the undersigned a notice of appeal to the Commissioners against the said registration, and that if no such notice of appeal is lodged within the time aforesaid the registration of the said Decree/Dismiss/Order/Judgment will be conclusive.*

Caisleán Bhaile Atha Cliath.

_______________________________________________________________________________________________

*NOTE.—An appeal against a decree when registered lies under Section 5 although no appeal has been lodged under Section 12 (4) against the registration of the Decree.

† Strike out any word which is not applicable, and in District Court Cases state whether Ordinary or Circuit Sitting.

FORM 2.

NOTICE OF REGISTRATION.

BETWEEN

TAKE Notice that an application has been lodged by the above-named     with the Registrar appointed under the above Act to have the Decree/Dismiss/Order/Judgment dated the   day of    19 , given in the above-mentioned proceedings entered on the Register with a view to its enforcement, and that the said Decree/Dismiss/Order/Judgment a copy of which is set out in the Schedule hereto has, in accordance with Section 12 (2) of the Act been entered in the Register.

And take further Notice that any person aggrieved by the registration of the said Decree/Dismiss/Order/Judgment may, not later than fourteen clear days from the date of this notice, lodge with the undersigned a notice of appeal to the Commissioners against the said registration, and that if no such notice of appeal is lodged within the time aforesaid the registration of the said Decree/Dismiss/Order/Judgment will be conclusive.*

Caisleán Bhaile Atha Cliath.

_______________________________________________________________________________________________

*NOTE.—An appeal against a decree when registered lies under Section 5 although no appeal has been lodged under Section 12 (4) against the registration of the Decree.

† Strike out any word which is not applicable, and in District Court Cases state whether Ordinary or Circuit Sitting.

FORM 3.

DAIL EIREANN COURTS (WINDING UP) ACT, 1923.

In the Matter of Proceedings instituted in the Dáil Eireann Courts

and entitled:—

District Court of

[or Parish Court of

District of].

BETWEEN

Notice of Application [or Appeal] to the Commissioners

BETWEEN

TAKE Notice that the above-named

intends to apply to the Commissioners appointed under the Act to hear and determine the above-mentioned proceedings which were pending for hearing of a claim of which particulars are endorsed hereon, or, [intends to apply to the Commissioners, etc., to hear and determine the appeal that was pending in the      Court against the decree or [order] granted or [made] in the above-mentioned proceedings, particulars of which decree or [order] are endorsed hereon.]

or [intends to appeal to the Commissioners against the registered decree or [order] granted or [made] in the above-mentioned proceedings.]

And Further Take Notice that the said intended application or [appeal] will be listed for hearing on the  day of in the Court of the Commissioners, Dublin Castle,

or [at the sitting of a Court of the Commissioners to be held at on the  day of

or [at the first sitting of a Court of the Commissioners to be held at

after the expiration of seven or [fourteen] clear days from the service of this notice].

And Further take Notice that if you fail to appear on the hearing of the said application or [appeal] such order will in your absence be made in the premises and as to the costs of the said application or [appeal] as shall to the Court appear just.

To

FORM 4.

DAIL EIREANN COURTS (WINDING UP) ACT, 1923.

In the matter of proceedings instituted in the Dáil Eireann Courts,

and entitled:—

District Court of

[or Parish Court of

District of]

BETWEEN

Notice of Application [or Appeal] to the Commissioners

BETWEEN

TAKE Notice that the above-named      intends to appeal against the order of the Commissioner or [Assistant Commissioner] made in the above-mentioned matter and dated the   day of

And Further Take Notice that the said intended appeal will be listed for hearing on the   day of     in the Court of the Commissioners, Dublin Castle, or [will be listed for hearing at the first sitting of a Court of the Commissioners to be held at        after the expiration of fourteen clear days from the date of service of this notice [or, if the date of such sitting has been fixed, give the date]

Dated this   day of

To

FORM 5.

SAORSTÁT EIREANN.

DAIL EIREANN COURTS (WINDING UP) ACT, 1923.

Warrant of the Commissioners (under Section 19 of the Act) for the  execution of an Ordinary Decree Dismiss Order.

Folio No.

Insert title as appearing in the Register.

To the Under-Sheriff of the County of

WHEREAS it appears to the Commissioners appointed under the Act that by a decree dismiss [order] registered under the Act and entered on Folio No.  County of   of the    Register.

IT WAS ORDERED that the said      do recover from the said    the sum of £    together with the sum of £  for costs and expenses and £  for deposit or [Court] fee, and that the total sum of £   be levied off the goods of the said

Now you are hereby required to take in execution the goods of the said      to satisfy the said amount of £      , together with   , fee payable on the issue of this warrant, and   fee payable to the Under-Sheriff.

Dated this   day of       .

FORM 6.

SAORSTÁT EIREANN.

DAIL EIREANN COURTS (WINDING UP) ACT, 1923.

Warrant of the Commissioners under Section 19 of the Act for the Execution of a Decree or Order in Ejectment.

Folio No.

[Insert title as appearing in the Register.]

To the Under-Sheriff of the County of        .

WHEREAS it appears to the Commissioners appointed under the Act that by a Decree or Order registered under the Act and entered on Folio    No.   County of     of the Register.

IT WAS ORDERED that the said       do be put into possession of the premises mentioned in said Decree or Order and therein described as      "All that       " and that the said      do recover from the said

the sum of £    for costs and expenses and £     for deposit or Court fees, and that the total sum of £     be levied off the goods of the said

NOW YOU ARE HEREBY REQUIRED to put the said

into the possession of the said premises and TO TAKE IN EXECUTION the goods of the said       to satisfy the said amount of £ together with £     fee payable on the issue of this warrant and fee payable to the Under-Sheriff.

Dated this   day of      .