S.I. No. 7/1962 - District Court Rules (No. 1), 1962

S.I. No. 7 of 1962.

DISTRICT COURT RULES (No. 1), 1962

The District Court Rules Committee, in exercise of the powers conferred on them by section 91 of the Courts of Justice Act, 1924 , section 72 of the Courts of Justice Act, 1936 , and section 48 of the Courts (Supplemental Provisions) Act, 1961 , and with the concurrence of the Minister for Justice, do hereby make the following Rules :—

1. These Rules may be cited as the District Court Rules (No. 1), 1962.

2. These Rules shall come into operation on the 1st day of March, 1962, and shall be read together with the District Court Rules, 1942 ( S. R. & O. No. 144 of 1942 ), the Principal Rules, the District Court Rules (No. 2), 1948 ( S.I. No. 270 of 1948 ), the District Court Rules (No. 3), 1948 ( S.I. No. 431 of 1948 ), the District Court Rules, 1955 ( S.I. No. 83 of 1955 ), the District Court Rules (No. 2), 1955 ( S.I. No. 84 of 1955 ), and the District Court Rules, 1956 ( S.I. No. 277 of 1956 ).

3. In these Rules " the Principal Rules " means the District Court Rules, 1948 ( S. R. & O. No. 431 of 1947 ).

4.—(1) Service out of the jurisdiction of a Civil Process or other originating document, or notice thereof, may be allowed by the Court in the following cases :

(a) in proceedings for ejectment where the premises sought to be recovered are within the jurisdiction;

(b) in proceedings founded on a contract where such a contract is

(i) made within the jurisdiction, or

(ii) by its terms or implications to be governed by Irish law;

(c) in proceedings brought in respect of a breach committed within the jurisdiction of a contract wherever made even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

(d) in proceedings founded on a tort committed within the jurisdiction;

(e) where any relief is sought against a person domiciled or ordinarily resident within the jurisdiction;

(f) where any person out of the jurisdiction is a necessary or proper party to an action properly brought against another person duly served within the jurisdiction.

(2) Every application for leave to serve a Civil Process or other originating document or notice thereof on a Defendant out of the jurisdiction shall be made ex parte and shall be supported by an affidavit stating that in the belief of the deponent the Plaintiff has a good cause of action and showing in what place or country such defendant or person to be served is or probably may be found and whether such defendant or person to be served is or is not a citizen of Ireland and the grounds on which the application is made, and no such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under these Rules. Such affidavit shall, when no proceedings are pending, be entitled as between the parties to the intended proceedings and " In the matter of the Courts of Justice Acts, 1924 to 1961 ".

(3) An Order giving leave to effect service or to give notice out of the jurisdiction shall be signed by the District Justice making the same and such Justice shall fix the date of hearing of the proceedings and in fixing such date shall have regard to the place or country where or within which the document is to be served or notice given.

(4) Service out of the jurisdiction of a Civil Process or other originating document or notice thereof may be effected by registered post and, save where the Court may otherwise direct, a certificate of posting of the registered postal packet shall be sufficient evidence of the service thereof. Such service shall be deemed to have been effected at the time when such postal packet would have been delivered in the ordinary course of post.

(5) Where the person to be served is not a citizen of Ireland, notice of the document and not the document itself shall be served upon him.

(6) Whenever an Order shall be made giving leave to serve a document or notice thereof on a person out of the jurisdiction, a copy of such Order shall be served with the document or notice.

(7) In this Rule " jurisdiction " means the jurisdiction of the State.

5. The following Rules shall be substituted for Rule 46 and Rule 47 of the Principal Rules and Rule I of the District Court Rules (No. 3), 1948 :

" 46.—(1) (a) Where a Complainant is an officer or member of the Garda Síochána or a Minister of State or the Attorney General or an officer of the Revenue Commissioners, the summons may be served by a member of the Garda Síochána or other person authorised by statute.

(b) A summons under the School Attendance Act, 1926 , as amended and extended by subsequent enactments, may be served by any officer of the appropriate School Attendance Committee.

(c) In all other cases a summons shall be served by a Summons Server unless a Justice by endorsement on a summons authorises service by some other person. No member of the Garda Síochána, School Attendance Officer or Summons Server shall serve a summons in which he himself is the Complainant.

(2) In all cases in which it is provided by paragraph 1 hereof that a summons shall be served by a Summons Server

(a) if it shall happen that there is at any time no duly appointed Summons Server for a particular Court Area, or

(b) where the Justice of the District is satisfied that service of summonses cannot or will not be effected conveniently by a duly appointed Summons Server in a Court Area or any part thereof comprised in such District,

then and in either such case, the Justice of the District may by order in writing direct that service may be effected by sending the summons by registered post to the defendant addressed to him at his last or most usual place of abode.

(3) The said order shall be in writing signed by the Justice and shall be deposited with the Clerk of the Court Area to which the same relates and shall remain in force until a Summons Server is appointed unless it shall be sooner revoked by the Justice.

(4) The following provisions shall apply to summonses served in accordance with paragraph (2) hereof :

(a) Service shall be deemed to have been effected at the time at which the registered postal packet containing the summons would have been delivered in ordinary course of post.

(b) The registered postal packet containing such summons may be posted by the person instituting the proceedings or by any other person acting on his behalf.

(c) Service of such summons shall be proved by the statutory declaration of the person posting the registered postal packet containing the summons. Such declaration shall exhibit the certificate of posting the registered postal packet and shall state that the declarant believes that the District Justice of the area wherein service is to be effected has made an order under paragraph (2) hereof and that, at the time of service, such order had not been revoked and that the defendant was within the jurisdiction and residing at the address to which such registered postal packet was sent.

(5) If a Justice is satisfied that any summons server has been or will be prevented by forcible resistance or by any other sufficient cause from serving a summons in any Court Area within the district of such Justice, he may by order in writing signed by him and deposited with the Clerk of the said Court Area, direct that the provisions of paragraph (2) hereof shall apply to the service of summonses in such Court Area. Such direction shall continue in force in respect of the service of all such summonses within such Court Area until it is revoked by the Justice.

47.—(1) (a) Every summons served by registered post in accordance with Rule 46 hereof shall be served at least twenty-one days before the date fixed for the hearing of the complaint and every other summons shall be served at least seven clear days before the date fixed for the hearing of the complaint.

(b) When a summons shall have been duly served it shall be lodged with the Clerk of the Court Area wherein the complaint is to be heard at least four days before the date fixed for the hearing.

(2) (a) A Summons may be served on a defendant to whom it is directed by delivering to him a copy thereof issued for service or by leaving such copy for him at his last or most usual place of abode or at his office, shop, factory, home or place of business with the husband or wife of the defendant or with a child or other relative (residing with the defendant) of the defendant himself or of his wife or her husband as the case may be, or with any agent, clerk or servant of the defendant, or with the person in charge of the house or premises wherein the defendant usually resides, provided that any person (otherthan the defendant himself) with whom such copy is left for the defendant is not under sixteen years of age and is not the complainant.

(b) In any case where under the provisions of Rule 46 hereof service is to be effected by registered post and the Justice is satisfied that such service cannot be effected, he may direct that service be effected by ordinary prepaid post or in cases in which possession of any premises is sought to be recovered by affixing a copy of the summons to the door of such premises.

(c) In any case in which a Justice is satisfied that none of the modes of service aforesaid is reasonably practicable he may direct that service be effected in such manner as he thinks proper. The Justice shall thereupon endorse on the original summons and on the copy issued for service particulars of such direction."

6. The following paragraph shall be added to Rule 65 of the Principal Rules :

" (7) Where a penalty within the meaning of this Rule has been imposed by a Justice and time is allowed for the payment thereof, the Clerk shall send a notice to the defendant stating that such penalty has been imposed, the amount thereof and the time within which the same is to be paid and notifying the defendant that if he fails to pay a warrant will be issued to distrain his goods or for his arrest, or both, as may be applicable. Such notice may be sent by ordinary letter post addressed to the defendant at his last known or most usual place of abode. The failure of the Clerk to comply with the provisions of this Rule, or any omission from or misstatement in the notice shall not in any way prejudice the issue by the Justice of any warrant."

7. The following Rule shall be substituted for Rule 149 of the Principal Rules :

" 149. (a) Any affidavit to be used in the District Court shall be made before a Commissioner to administer Oaths for the High Court, or, where a person making an affidavit resides outside the State, or is for the time being thereout, before any person duly authorised to administer Oaths in the country where such person ordinarily resides or is, and the signature of the person purporting to act as such Commissioner or the person duly authorised to administer Oaths shall be prima facie evidence that such affidavit was duly made.

(b) No affidavit shall be sworn before the Solicitor acting for the party on whose behalf the affidavit is to be used or before the partner, agent, correspondent or clerk of such Solicitor or before the party himself."

GIVEN this 30th day of January, 1962.

Cathal Ó Floinn, Chairman

Denis P. O'Donovan

James P. Crotty

Michael J. C. Keane

John Farrell

Henry Barron

John Kelly

Edward H. Byrne.

I concur in the making of the foregoing Rules.

Dated this 30th day of January, 1962.

Charles J. Haughey.

Minister for Justice.

EXPLANATORY NOTE

These Rules, which come into operation on the 1st March, 1962, revise the practice and procedure of the District Court in relation to the service of summonses and the service of documents outside the State and provide for the issue of notices to defendants of the imposition of fines.