S.I. No. 101/1994 - Rules of the Superior Courts (No. 3), 1994.


S.I. No. 101 of 1994.

RULES OF THE SUPERIOR COURTS (No. 3), 1994.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48) and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 29th day of July, 1992.

Thomas A. Finlay,

Liam Hamilton,

Anthony J. Hederman,

Hugh J. O'Flaherty,

Declan Costello,

Mella Carroll,

Harry Hill,

Gordon Holmes.

I concur in the making of the annexed Rules of Court.

Dated this 28th day of April 1994.

M?IRE GEOGHEGAN-QUINN,

Aire Dlí agus Cirt.

S.I. No. 101 of 1994.

RULES OF THE SUPERIOR COURTS (No. 3), 1994.

1. The following Order shall be inserted as Order 11B of the Rules of the Superior Courts immediately after Order 11A thereof.

"ORDER 11B

SERVICE OF DOCUMENTS OUTSIDE OF THE JURISDICTION.

1. In this Order unless the context or subject matter otherwise requires:—

"An Authority" means an authority competent by law to forward documents to the Central Authority of another State and includes those declared to be so by Rule 2 (3).

"Central Authority" means the Master of the High Court and in relation to another State means the authority or authorities designated to receive requests for service of documents under the Convention.

"The Convention" means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on the 15th November 1965.

"A Convention Country" means a country which is party to the Convention.

"Document" includes any extrajudicial document.

"Judicial Officer" means a Judicial Officer competent by law to forward documents to the Central Authority of another State.

"Request" includes a request to authorise the transmission of a request.

Application of Order

2. (1) This Order applies to the service of any summons, notice, document, citation, petition, affidavit, pleading, order or any form either:

( a ) Issued pursuant to these Rules, or

( b ) Lodged for service under this Order, and where such service requires to be effected out of the jurisdiction and in a Convention country, and where for such service, leave has been granted or is unnecessary and where a request for service has been made to the Central Authority in the form prescribed.

(2) This Order is without prejudice to any other method of service prescribed by these Rules or permitted under the Convention or by a State a party to the Convention or which is otherwise compatible with the law of the State in which service is to be effected.

(3) For the purposes of this Order, the following are declared to be competent authorities or competent judicial officers for the purposes of article 3 of the Convention.

( a ) The Central Authority.

( b ) A practising Solicitor.

( c ) A County Registrar.

( d ) A District Court Clerk.

3. (1) Any party to any proceedings of a civil or commercial nature instituted under or pursuant to these Rules and any competent authority or judicial officer who wishes to have a document served pursuant to the Convention may lodge with the Central Authority:

( a ) A request for service of the document in the form specified in the Annex to the Convention and a copy thereof.

( b ) Two copies of the document to be served with an additional copy thereof for each person to be served.

( c ) A translation of each document into the official language or one of the official languages of the State addressed unless the said document is already in the official language or one of the official languages of the State addressed.

( d ) An undertaking to pay the costs of service, payment or reimbursement of which is or may be sought by the Central Authority of the State addressed under Article 12 of the Convention.

(2) In any case in which the request is lodged with the Central Authority by a person who is not a competent authority or a competent judicial officer, the Central Authority shall, on being satisfied that the request complies with the requirements of rule 3, forward the said request and all accompanying documentation to the Central Authority of the State in which service is to be effected.

(3) In any case in which a request is lodged with the Central Authority by a competent authority or by a competent judicial officer the Central Authority may certify that

( a ) The person who has submitted the request to the Central Authority is under the law of the State an authority or a judicial officer, competent to forward a request under the Convention as the case may be.

( b ) The document sought to be served is one which requires to be served in the State addressed.

( c ) The request otherwise complies with the requirements of the Convention.

( d ) The Central Authority has authorised the transmission of the request,

and having so certified the Central Authority shall return the request to such competent authority or competent judicial officer with such certificate for transmission by him directly to the Central Authority of the State addressed.

(4) If any request does not comply with the provisions of rule 3 the Central Authority shall inform the applicant and specify the objections to the request.

(5) The Central Authority shall maintain a list of all countries whch are Convention countries and the official languages thereof and shall maintain therewith a list of the Central Authority or Authorities in each such country with the address thereof. Such list shall be available for inspection during Central Office hours and copies thereof available on request.

(6) On receipt of any certificate of service under Article 6 of the Convention from the Central Authority of the State addressed the same shall be transmitted forthwith to the party who lodged the request and any such certificate purporting to have been issued by such Central Authority in the form prescribed shall be prima facie evidence of the facts stated therein.

4. (1) Where any proceedings have been issued for service under Order 11A, rule 2 and transmitted abroad for service under this Order, judgement shall not be given unless the party seeking judgement complies with the requirements of Order 13A in addition to the requirements of this rule.

(2) Judgement shall not be given or entered in default of appearance in any proceedings which have been served pursuant to this Order until it is established that

( a ) The document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

( b ) The document was actually delivered to the defendant or to his residence by another method provided for by the Convention,

and that in either case the service or delivery was effected in sufficient time to enable the defendant to defend.

(3) Judgement in default of appearance shall only be entered with leave of the Court.

(4) An application for leave to enter judgement in default shall be made by motion on notice and shall be supported by an affidavit verifying the plaintiff's claim for relief and verifying the steps taken in the proceedings and supported by adequate proof thereof.

(5) Notwithstanding rule 4 (1) the Court may give leave to enter judgement if no certificate of service or delivery has been received from the Central Authority of the State addressed, provided that

( a ) The document was transmitted by one of the methods provided for in the Convention.

( b ) A period of time (of not less than six months) considered adequate by the Court has elapsed since the transmission of the document.

( c ) No certificate of any kind has been received and that every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

(6) An application to set aside any judgement obtained in default or to extend the time for appealing same shall be made by motion on notice and shall be grounded upon the affidavit of the moving party and the Court may, if satisfied that:

( a ) the application was made within a reasonable time after the defendant had knowledge of the judgement and

( b ) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend or knowledge of the judgement in sufficient time to appeal, as the case may be and

( c ) the defendant has disclosed a prima facie defence to the action on the merits,

set aside the judgement or extend the time for appealing same, as the case may be, on such terms and conditions as appear just.

5. The Central Authority shall issue a certificate when requested to do so certifying the fact of and the date of transmission of any request or of the authorisation of such transmission or of the receipt of any request or of the receipt of any certificate from any other Central Authority."

2. The following Order shall be inserted as Order 121A of the Rules of the Superior Courts immediately after Order 121.

"ORDER 121A

SERVICE OF FOREIGN PROCESS

1. In this Order, unless the context or subject matter otherwise requires:—

"The Central Authority" means the Master of the High Court.

"The Convention" means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on the 15th November 1965.

"A Convention Country" means a country which is party to the Convention.

"Foreign Country" means any country which is not a Convention country.

"Foreign Process" means any document initiating or relating to proceedings in a Convention country or in a foreign country which have been forwarded to the Central Authority for service in the State.

"Person" includes any body corporate.

"Proceedings" means any civil or commercial proceedings in any Court or Tribunal of a Convention country or of a foreign country.

"Process Server" means the Chief State Solicitor or any person designated by him for that purpose or by the court.

Application of this Order

2. This Order applies to the service of any foreign process on any person in the State where the Central Authority:

( a ) has received a written request for service on that person from the Central Authority of another Convention country or from an authority or judicial officer competent under the law of the State in which the documents originate, or

( b ) has received from the Department of Foreign Affairs a letter of request for service of process from a Court or Tribunal of a foreign State on a person in the State with a recommendation from the Minister for Foreign Affairs that it is desirable that effect should be given to such request.

3. When the Central Authority receives any request for service in accordance with rule 2 (a) or (b) the following procedure shall be adopted:—

(1) If the said request is not a convention request and is not in English then it shall be accompanied by a translation thereof and all requests shall also be accompanied by two copies of the document to be served and two copies of the translation thereof and by two summaries of the document to be served and two copies of the translation thereof, such translations to be certified as correct by a person competent to do so. Such translations shall be into one of the official languages of the State.

(2) In the case of a request from a Convention country the Central Authority shall be satisfied that it conforms to the form set out in the Annex to the Convention and the Central Authority shall promptly inform the Applicant of any request which it considers does not comply with the provisions of the Convention and shall specify its objections to the request.

(3) If any particular method of service is requested, the Central Authority may direct service in the manner requested unless satisfied that such method is incompatible with the law of the State or the practice and procedure of the Court.

(4) If no particular method of service is requested or if the method requested is either incompatible with the law of the State or the practice and procedure of the Court the Central Authority shall direct that personal service be effected upon the person concerned.

Such service to be effected by delivery to and leaving with the person concerned one copy of the document to be served and of any translation thereof.

(5) The Central Authority shall direct that service under (3) or (4) above shall be effected by the Chief State Solicitor or by some person or persons designated for that purpose by him or by the Central Authority.

(6) After service has been effected, the process server shall return to the Central Authority one copy of the process together with an affidavit evidencing the service actually effected by the process server and including all circumstances relevant thereto or if service has not been effected he shall return the documents with an affidavit evidencing such attempts at service as may have taken place and the reason why the same has not been effected.

(7) Such affidavit shall contain particulars of and shall verify the cost of effecting or attempting to effect such service and the Central Authority may, in such cases where the cost of the use of a particular requested form of service exceeds the normal cost of effecting service, certify the costs actually incurred and shall certify the cost of service if effected by a competent person or judicial officer.

(8) (i) The Central Authority shall certify in every case in which service has been effected of any process forwarded from a Convention country in the form set out in the Annex to the said Convention and shall forward the same directly to the Applicant together with proof of service of the process.

(ii) The Central Authority shall certify in every case in which service has been effected of any process forwarded from a foreign country in the form set out in the Annex to the Convention but omitting any reference thereto and shall forward the same to the Minister for Foreign Affairs together with proof of service of the process.

(9) In any case in which service has not been effected or in which a particular requested form of service has not been effected, the Central Authority may, on the application of the Chief State Solicitor, in any case in which it appears appropriate either:—

( a ) make such order for substituted service as appears necessary, or

( b ) return the request having certified the reasons why service has not been effected.

(10) The Central Authority may prescribe such time for service as appears appropriate and necessary and may, after the expiry of such time or if no time has been fixed after one month from a direction under subrule (5) direct the process server to explain why service has not been effected or has not been effected within the time prescribed or why no affidavit has been filed in accordance with subrule (6), as the case may be and may make such order as appears proper in the circumstances."

3. Order 121 rule 9 is hereby deleted from the Rules of the Superior Courts.

4. These rules shall come into operation the 4th day of June 1994.

5. These rules shall be construed together with the Rules of the Superior Courts 1986-1994.

EXPLANATORY NOTE.

These Rules, which come into operation on 4 June 1994, regulate the practice and procedure of the Superior Courts with respect to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.