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Possession proceedings


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Representing yourself in the Circuit Court

The following is a simple guide for those of you who are representing yourselves in possession proceedings before the Circuit Court. It covers some of the things you can do to prepare for your court hearing, and what you should and should not do inside the courtroom.

Remember that judges and court staff cannot give you legal advice. However, assistance and advice in some important respects is available to you from the Money Advice and Budgeting Service (MABS) and the Insolvency Service of Ireland (ISI). You should consider contacting these agencies.

If you have already received a date to appear in court, both MABS and the ISI are providing a support service in court buildings on the days possession cases are listed for hearing. You may wish to avail of this useful service.

The law and the rules of court

It is important that you inform yourself about the law and the procedures of the courts as, unless you are employing a solicitor, you have to prepare your own case and all the necessary documents. You also have to present your case in court.

This website is a useful source of information. You will find the most commonly used legislation and court rules which apply to possession proceedings. It is not comprehensive information - the law which applies to your case may not be included. It is up to you to research the relevant law.

You will also find useful information about Circuit Court procedure and practice and the various steps in the possession process in A Guide to Possession Proceedings in the Circuit Court. This guide, published by Community Law & Mediation, FLAC, and Phoenix Project Ireland, with the support of the Citizens Information Board, is available on www.communitylawandmediation.ie or through your local court office.

The possession process

The following is a brief summary of the possession process. You will find more details in the guide mentioned above.

Possession civil bills

When a financial institution commences proceedings to possess a property, it must issue a court document called a ‘Civil Bill for Possession’ in the Circuit Court Office in the county where the property is located.

There will be general information on the front of the civil bill as to how the case is to proceed including the date, time and venue of the court where the case will be first listed for hearing. This date is called ‘the return date’ and it is essential that you note it carefully.

The financial institution must serve the civil bill on you in advance of the return date. This may be done by a Summons Server or it could be sent to you by registered post.

The civil bill is usually accompanied by an affidavit - a document sworn by the financial institution setting out the claim being made against you.

Appearance and defence

If you are not consenting to the making of an order for possession of your property, you should consider contacting the MABS or ISI staff in the court building to discuss your case (if you have not already done so).

If you decide to contest the proceedings, you must complete and file a document called an ‘Appearance’ within 10 days of receiving the civil bill.

The form for an appearance is available in the Court Rules section of this site.

You should also file (lodge in the Circuit Court office) an affidavit replying to the claims the financial institution is making against you at least four days before your return date (your court date).

You should bring, or send, three copies of the completed appearance to the court office where the proceedings were issued. One copy will be placed on the court file, while the other two will be returned to you.

One of these copies must be served on the solicitors representing the financial institution which is taking the proceedings and you should retain the other copy.

There is no charge for filing the appearance form.

If you believe that there are technical errors or serious issues with the proceedings and you wish to defend them, you are required to prepare a further document called a ‘Defence’.

This sets out the grounds under which the court should not make the order in favour of the financial institution. This must be served on the solicitors for the financial institution within 10 days of serving them with the appearance.

Situations where a defence arises are not common so it is very important that you seek legal advice if you intend to issue a defence.

Getting ready for court

Make sure you have all your documents clearly organised. Bring copies of the documents that you have been served with. Bring a note pad and pen.

Locate the relevant court building by consulting the Offices & Maps section of this site.

Arriving at court

You should arrive at least 30 minutes early to give yourself plenty of time to find the courtroom. If you have any problems finding the right courtroom, ask court staff.

Note the following important information:

  • A courtroom is a formal environment so please ensure that you are appropriately dressed and groomed for the occasion
  • Do not bring any food or beverage into the court and do not chew gum in court
  • Do not bring children to the court
  • Remove hats and/or sunglasses, unless for medical or religious reasons
  • Turn off electronic equipment, including mobile phones before you enter the courtroom
  • Recording devices are not allowed in courtrooms. However there is an official digital recording system which records evidence given during a case. A digital clock may light up when the recording is taking place.

 

Inside the courtroom

The call over

The courts that deal with possession cases are presided over in the first instance by the county registrar for the county in which the proceedings are taking place.

The county registrar is a court official and is not a judge. Where a complicated issue arises, such as one relating to the jurisdiction of the court, the county registrar may refer the case to a court list presided over by a Circuit Court judge.

Cases listed before a county registrar or a judge are called out by the court registrar at the start of the day. This is known as a ‘call over’ and is to enable the county registrar / judge ensure that the parties are present in court and to find out other matters about the case. All parties who have cases listed before the court on the day should be in court at the call over.

When your case is called out, it is important that you identify yourself to the county registrar/judge. If you have had discussions with the financial institutions about finding a settlement or are making payments, it is very important to tell the county registrar/judge.

You may have to go to court more than once because, in practice, many cases are postponed or ‘adjourned’. This can happen for a number of reasons including:

  • either you or your financial institution need to file more documents
  • there is still hope of agreeing an alternative repayment plan and prevent the possession
  • to give you a chance to see if you are eligible for a ‘Personal Insolvency Arrangement’ (a solution offered by the Insolvency Service of Ireland).

 

Courtroom etiquette

Stand each time the court commences or adjourns. The court registrar or judge’s assistant will announce this by saying ‘silence in court, all rise’ or ‘please stand’.

When your case is called, go to the top of the courtroom to the bench reserved for parties and/or their legal representatives. Normally each party (or their legal representatives) sits at opposite sides of the bench (solicitors will sit facing the barrister where a party is represented by both a solicitor and a barrister).

You should address the judge as ‘judge’. If you are in the county registrar’s court address him/her as ‘county registrar’.

Always stand when addressing the judge /county registrar - no matter for how brief a period unless the judge indicates otherwise - and do not sit down until the county registrar/judge invites you to do so.

You must establish the reasons why you believe you are entitled to the court order you are seeking, or the reasons why you believe the other party is not entitled to the court order they are seeking.

Evidence can be in the form of ‘testimony’ (spoken evidence given under oath or affirmation) by the parties and witnesses called by them. Evidence can also be ‘written’ e.g. affidavits.

Refer to the legal representatives and the other party in a formal way. You should speak clearly and politely. Do not point, use abusive language, raise your voice or shout or interrupt others.

The judge may ask questions and interrupt you. Listen carefully and answer as clearly as you can.

Decision

Based on the information presented, the judge/county registrar may:

  • grant the order for possession
  • strike out or dismiss the case, or
  • adjourn the case to allow time for both you and your financial institution to reach an agreement.

 

The court may grant an order for possession with or without a ‘stay’.

A ‘stay’ delays orders from coming into effect for a time. Where the court grants a stay, for example for six months, the financial institution cannot seek to take possession or sell the property for at least six months. If no stay is granted, the financial institution can seek to take possession once the order for possession has been drawn up.

When the judge announces his/her decision, listen carefully to the reasons given and write down the orders made.

It is important that you understand what the county registrar / judge has decided in relation to your case before you leave the courtroom. If you do not understand, do not be afraid to ask. You can ask for the orders to be repeated if you missed any.

Once orders are made, your case is finished and you are free to leave. The court registrar/court clerk will draw up the court order and send it out to the solicitor that acts for the financial institution.

If you wish to have a physical copy of any order, there is a €15 stamp duty fee. You are entitled to inspect the court file in the court office and it is important to bring identification when you intend to do this. Copies of documents on the court file cannot be provided without paying the €15 stamp duty fee per copy.

Appeals

Appeals of decisions of the county registrar can be madeto a Circuit Court judge. Appeals of a decision of a Circuit Court judge can be made to the High Court. Your local court office can provide information on the procedure but usually, it involves the issue of a ‘notice of motion’ which is supported with an ‘affidavit’.


Further information:

The Insolvency Service of Ireland (ISI) is an independent government body set up to help tackle personal debt problems. Visit www.backontrack.ie.

The Money Advice and Budgeting Service (MABS) is the State’s money advice service, guiding people through dealing with problem debt for more than twenty years. Visit www.mabs.ie.

The Citizens Information main website provides information on public services and entitlements in Ireland. Visit www.citizensinformation.ie.

A separate Citizens Information website www.keepingyourhome.ie provides information for people who are in mortgage arrears, or who are having difficulty paying the rent or mortgage.






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