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District Court Rules

Order: 42

Defence, particulars and counterclaim : S.I. No. 17 of 2014
1 — APPEARANCE AND DEFENCE

1 Appearance and defence

1. (1) A respondent who intends to defend civil proceedings must give, or send by post, to the claimant or solicitor for the claimant an appearance and defence, in the Form 42.01, Schedule C, not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

(2) Where a claim notice or other originating document (or notice thereof) is served outside the State in accordance with these Rules and any order of the Court, the time within which a respondent served outside the State must serve his or her appearance and defence on the claimant and file a copy of his or her appearance with the Clerk is:

      (a) five weeks after the service of the claim notice or other originating document (or notice thereof) exclusive of the day of service where the claim notice, other originating document or notice is served in the European territory of another Member State of the European Union, or

      (b) six weeks after the service of the claim notice or other originating document (or notice thereof) exclusive of the day of service where the claim notice, other originating document or notice is served in any non-European territory of a Member State of the European Union.

(3) A defence must—
      (a) contain a statement that the respondent intends to defend the claim notice; and

      (b) state the name and address of the respondent and an address for service in the European Union at which documents required to be served on the respondent may be left; and

      (c) if the respondent defends by a solicitor, state the name or firm and business address within the European Union of the solicitor and also, if the solicitor is an agent of another, the name or firm and business address of the principal.

(4) Where a civil summons which does not require the delivery of a written defence (or notice thereof) is served outside the State in accordance with these Rules and any order of the Court, the respondent may notify his or her intention to appear and contest the claim by serving an appearance in Form 42.02, Schedule C on the claimant and filing a copy of his or her appearance with the Clerk within the period specified in sub-rule (2). A respondent on whom a civil summons which does not require the delivery of a written defence is served within the State is not required to serve or file such an appearance.

2 Appearance and defence to debt claim

2. (1) An appearance and defence in a debt claim must be in Form 42.03, Schedule C. A respondent who intends to defend a debt claim must give, or send by post, to the claimant or solicitor for the claimant his or her appearance and defence not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

(2) A defence in a debt claim must state whether the claim is:

      (a) disputed as to both liability and amount;

      (b) disputed only as to amount and if so, what amount is admitted to be due;

      (c) admitted in full and if so, whether the respondent proposes to pay immediately or requires time for payment.

3 Appearance and defence in claims other than debt claims

3. (1) Unless the respondent requires further particulars of statement of claim, a respondent to a claim other than a debt claim who contests or disputes all or part of a claimant’s claim must serve an appearance and defence in Form 42.01, Schedule C on the claimant at the address for service stated in the claim notice and must file a copy of the appearance with the Clerk.

(2) A defence must state which of the facts stated in statement of claim are—

      (a) admitted;

      (b) denied;

      (c) not admitted.

(3) A respondent who, in the defence, does not state whether a fact stated in statement of claim is—
      (a) admitted;

      (b) denied;

      (c) not admitted—

must be taken to admit the fact.

(4) A respondent who states that a fact stated in statement of claim is denied must—

      (a) give reasons for denying the fact; and

      (b) if the respondent intends to prove a fact different from that stated in the statement of claim, state, with necessary particulars, the fact that the respondent intends to prove.

(5) The respondent must state specifically, with particulars, any fact or matter which—
      (a) makes the claim of the claimant not maintainable; or

      (b) if not stated specifically, might take the claimant by surprise; or

      (c) raises questions of fact not arising out of the statement of claim. (6) If the defence arises by or under any enactment, the defence must identify the specific provision relied on.

(7) A defence must be divided into paragraphs numbered consecutively, and each fact or matter stated, so far as is practicable, must be contained in a separate paragraph.

(8) A defence must contain a list of all correspondence and other documents (other than any documents already identified in the statement of claim) on which the respondent will rely at the trial including the date if any and a brief description of each document.

(9) The respondent may not rely on the defence of tender unless, within seven days after filing an appearance and defence, the respondent pays to the Clerk the amount alleged to have been tendered.

(10) Despite sub-rule (1), a respondent who has entered an appearance and defence in a debt claim which complies with the requirements of rule 2 is not required to serve and file a defence which complies with the requirements of this rule unless an order has been made in the application for judgment on affidavit refusing judgment and giving permission to defend, in which case, the respondent must serve and file a defence which complies with the requirements of this rule within 21 days after the order is made.

4 Late filing and service of appearance and defence

4. A respondent may serve an appearance and defence and file an appearance at any time after the service of a claim notice with the written consent of the claimant, but an appearance and defence may not be served, except by permission of the Court, if the claimant has obtained judgment in default of appearance.

5 Amendment of defence where particulars given

5. Despite rules 2 and 3, a respondent who has required further particulars of the claimant’s statement of claim may serve and file an amended defence:

      (a) not later than 28 days after receipt of further particulars of the claimant’s statement of claim; or

      (b) at any other time with the permission of the Court.

2 — CHANGE OF SOLICITOR

6 Notice of change, appointment or discharge of solicitor

6. (1) A party suing or defending by a solicitor may change his or her solicitor, or discharge his or her solicitor and sue or defend in person.

(2) A party suing or defending in person may appoint a solicitor without an order for the purpose.

(3) Notice of any change, discharge or appointment of a solicitor (Form 42.04 or 42.05, Schedule C as appropriate) must be filed with the Clerk, and served on the opposite party, or his solicitor (if any), and on the solicitor discharged.


3 — NOTICE REQUIRING COPY DOCUMENTS OR FURTHER PARTICULARS

7 Does not apply to debt claims or small claims

7. This Part does not apply to small claims and unless otherwise ordered by the Court, this Part does not apply to debt claims.

8 Copy documents or further particulars from claimant

8. A respondent may at any time before or at the time of delivery of a defence apply to the claimant in writing:

      (a) for copies of all or any of the documents listed in the statement of claim on which the claimant relies or referred to in the statement of claim (Form 42.06, Schedule C);

      (b) requiring the claimant to provide further particulars which the respondent asserts are reasonably necessary as to specified matters in the statement of claim (Form 42.07, Schedule C).

9 Copy documents or further particulars from respondent

9. A claimant may within 28 days after delivery of a defence apply to the respondent in writing:

      (a) for copies of all or any of the documents listed in the defence on which the respondent relies or referred to in the defence (Form 42.06, Schedule C);

      (b) requiring the respondent to provide further particulars which the claimant asserts are reasonably necessary (Form 42.07, Schedule C).

10 Failure to give copies or particulars

10. (1) If a party fails to comply with a notice requiring copies of listed documents or requiring further particulars within 21 days of service of the notice, the Court may make an order requiring the party to provide the copies or the necessary particulars within a time specified by the Court.

(2) Such an order may provide that on failure to do so—

      (i) if the party is a claimant, that the claim notice be dismissed; or

      (ii) if the party is a respondent, that the party's defence, if any, be struck out.

(3) An application for an order under sub-rule (1) must be made before a date is fixed for hearing of the claim notice.

11 Amendment of pleading where particulars given

11. A party who has required further particulars of another party’s pleading may serve and file an amended statement of claim or other pleading:

      (a) not later than 28 days after receipt of further particulars; or

      (b) at any other time with the permission of the Court.

12 Application to counterclaims and third party claims

12. This Order applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a civil proceeding.

13 Costs of particulars

13. Unless otherwise ordered by the Court:

      (a) the costs of requesting particulars may only be allowed as part of the successful party’s costs against the unsuccessful party where, and only where, the particulars are certified as necessary by the Court; and

      (b) the costs of replying to particulars may be recovered by the unsuccessful party against the successful party where the particulars are not certified as necessary by the Court.

4 — COUNTERCLAIM

14 When counterclaim permitted

14. (1) A respondent may set off or set up any right or claim the respondent alleges he or she has against the claimant as a counterclaim against the claim of the claimant, whether the respondent’s claim is a claim in damages or not.

(2) A set off or counterclaim has the same effect as a cross action, so as to enable the Court to determine both the claim and the counterclaim at the same trial.

(3) The Court may, on the application of the claimant before the trial, refuse permission to the respondent to avail himself or herself of the counterclaim if in the opinion of the Court, the set off or counterclaim cannot be conveniently disposed of in the trial of the claimant’s claim, or ought not to be allowed.

(4) These Rules apply to a counterclaim as if the claimant were the respondent and the respondent were the claimant.

(5) A respondent who counterclaims must file and serve the counterclaim with his or her defence, unless the Court otherwise permits.

(6) A counterclaim must be in Form 42.08, Schedule C.


5 — STAY OR DISMISSAL OF CLAIM AND STRIKING OUT STATEMENT OF CLAIM OR DEFENCE

15 Stay or order in proceeding

15. (1) The Court may at any stage of the civil proceedings order to be struck out or amended any matter in any pleading which is unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the civil proceedings.

(2) The Court may in any such case, if it thinks fit, order the costs of the application to be paid as between solicitor and client.

(3) The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the claim or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the claim to be stayed or dismissed, or judgement to be entered accordingly, as the Court considers just.

16 Striking out a pleading

16. (1) If a statement of claim or defence or any part of a statement of claim or defence—

      (a) does not disclose a cause of action or defence; (b) is scandalous, frivolous or vexatious;

      (c) may prejudice, embarrass or delay the fair hearing of the proceeding; or

      (d) is otherwise an abuse of the process of the Court—

the Court may order that the whole or part of the statement of claim or defence be struck out or amended.

(2) This rule, with any necessary modification, applies where the respondent counterclaims or claims against a third party.