ORDER 15

APPEARANCE, DEFENCE, LODGMENT, OFFER OF PAYMENT IN LIEU OF LODGMENT AND COUNTERCLAIM

1.[1] (1) If a defendant intends to defend a Civil Bill or other proceeding, he shall enter an Appearance in the Office in the prescribed form as provided for in Form 5 of the Schedule of Forms.

(2) The defendant’s Appearance shall be lodged with or sent by post to the County Registrar so as to reach the Office before the expiration of the time limited for appearance.

(3) A copy of the Appearance shall at the same time be lodged with or sent by post or, where the Civil Bill signifies consent to such means, by electronic mail, to the plaintiff (if he sues in person) or to his or her solicitor, subject to the provisions of Order 5, rule 4.

(4) The solicitor for a defendant shall state in the Appearance:

(i) his or her registered place of business, or
(ii) where the defendant’s solicitor consents to the receipt of documents in the proceedings by electronic mail, his or her electronic mail address (in lieu of his or her registered place of business) to which documents may be sent in electronic form

(5) A defendant appearing in person shall state in the Appearance:

(i) an address for service where documents may be left for him or her, or
(ii) where the defendant consents to the receipt of documents in the proceedings by electronic mail, his or her electronic mail address (in lieu of his or her address for service) to which documents may be sent in electronic form.

(6) In—

(a) any proceedings where entry of an Appearance is not required, or
(b) any case where consent to the receipt of documents in the proceedings by electronic mail has not been endorsed in accordance with Order 5, rule 3 or sub-rule (4) or (5) of this rule

a solicitor or party may give notice of such consent by letter in writing sent by ordinary pre-paid post to the other party or, if that party is legally represented in the proceedings, that party’s solicitor.

2. Save where otherwise provided by these Rules, the time for entering an appearance shall be ten days from the service of the Civil Bill, exclusive of the day of service, or such further time as may be agreed between the parties unless the Court shall otherwise direct.

3. [7] (1) Where no appearance has been entered, within the time allowed, to a Civil Bill, for a defendant who is a child, the plaintiff shall, before further proceeding with the action against the said defendant, apply in the Office in the manner prescribed in Order 19 for an order that some proper person be assigned guardian ad litem of such defendant by whom he or she may appear and defend.

(2) Where no appearance has been entered, within the time allowed, to a Civil Bill or other originating document, for a defendant who is a person whose capacity to conduct proceedings is in question or may shortly be in question, but in respect of whom no decision-making representation order has been made under section 38(2)(b) of the Assisted Decision-Making (Capacity) Act 2015 which is in force, the plaintiff shall, before further proceeding with the action against the said defendant, apply to the Court under Order 6, rule 8. 

4. A defendant who has entered an Appearance as aforesaid shall within the further period of ten days thereafter, deliver to the plaintiff or his Solicitor a notice in writing in these Rules referred to as the Defence which shall be dated and which shall be in accordance with Form 6A of the Schedule of Forms annexed hereto or such modification thereof as may be appropriate.

5. The Defence shall state clearly the grounds upon which the defendant disputes the plaintiff’s claim. Subject to the provisions of Order 65 no defence shall be admitted to defeat the claim or any part thereof unless, in the opinion of the Judge, it could fairly have been inferred from the particulars given in the Defence.

6. Every defendant in ejectment proceedings shall be entitled to plead every defence which he may have at law or in equity.

7. A defendant in an action may set off or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set off or counterclaim is a claim in damages or not, and such set off or counterclaim shall have the same effect as a cross action, so as to enable the Judge to pronounce a final judgment in the same action, both on the original and on the counterclaim. But the Judge may, on the application of the plaintiff before trial, if in the opinion of the Judge such set off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.

7A. [2] A respondent in proceedings commenced by originating notice of motion pursuant to Order 64B or Order 64C, and to whom notice of such motion has been given, shall enter an Appearance to the originating notice of motion in the Form No. 5B of the Schedule of Forms. The Appearance shall be lodged with or sent by post to the County Registrar so as to reach the Office before the expiration of the time limited for appearance. A copy of the Appearance shall at the same time be sent by post to the applicant or his Solicitor. Where a respondent is given notice of such motion after the date first fixed for the hearing of the motion, he shall enter an Appearance thereto within the time fixed by the Court for that purpose. A respondent in such proceedings shall not be required to deliver a Defence and no respondent in such proceedings shall, without the leave of the Court, be entitled to be heard in such proceedings unless he has entered an Appearance.

8. With a Defence setting up a tender before action, the sum of money alleged to have been tendered must be brought into Court.

9. (a) This rule shall apply to the Dublin Circuit only. Any Defendant may at the time of entry of an appearance or at any time thereafter being

(i) any date not later than the date of the Notice of Trial or
(ii) at least eight weeks before the hearing date mentioned in the Notice of Trial as may be agreed between the parties, lodge in Court an amount which he alleges is sufficient to satisfy the plaintiff’s claim, and such lodgment may be with an admission or denial of liability. Where there is more than one claim or cause of action the defendant shall state in respect of which of them such lodgment is made.

(b) This rule shall apply to all Circuits other than the Dublin Circuit. Any Defendant may at the time of entry of an appearance or at any time thereafter being

(i) any date not later than the date of the Notice of Trial, or
(ii) at least eight weeks before the day upon which the case is first due to be heard or such shorter period prior to the day upon which the case is first due to be heard as may be agreed between the parties, lodge in Court an amount which he alleges is sufficient to satisfy the plaintiff’s claim, and such lodgment may be with an admission or denial of liability. Where there is more than one claim or cause of action the defendant shall state in respect of which of them such lodgment is made.

9A. [3] In an action for damages for defamation the defendant may, upon giving notice in writing to the plaintiff, pay a sum of money into court in satisfaction of the action in accordance with section 29 of the Defamation Act 2009.

10. (a) This rule shall apply to the Dublin Circuit only. A defendant may once, without leave, and upon notice to the plaintiff, lodge in Court an additional sum of money as an increase to a lodgement made under Rule 9a above. Such notice must be given and additional lodgment made

(i) at a date not later than the date of the Notice of Trial or
(ii) at least eight weeks (or such shorter period as is agreed between the parties) before the date for hearing mentioned in the Notice of Trial. If such notice is not given, and such additional lodgment is not made as aforesaid, the lodgment made under Rule 9 shall be deemed to be  the only lodgment in Court, and this Order shall be construed accordingly.

(b) This rule shall apply to all Circuits other than the Dublin Circuit. A defendant may once, without leave, and upon notice to the plaintiff, lodge in Court an additional sum of money as an increase to a lodgement made under Rule 9b above. Such notice must be given and additional lodgment made

(i) at a date not later than the date of the Notice of Trial or
(ii) at least eight weeks (or such shorter period as is agreed between the parties) before the day upon which the case is first due to be heard. If such notice is not given, and such additional lodgment is not made as aforesaid, the lodgment made under Rule 9b shall be deemed to be the only lodgment in Court, and this Order shall be construed accordingly.

11. A Defendant making a lodgment under this Order shall intimate such fact by a document other than his Defence and such document shall be kept by the County Registrar in a separate file and neither he nor any other person shall disclose the fact of such lodgment to the Judge until he shall have decided all issues between the parties save the liability for costs. Such document shall be in the form prescribed in the Schedule of Forms attached hereto at Form 6B, and shall be filed in accordance with these Rules and a copy thereof served on the Plaintiff.

12. Save in the case of a lodgment with a defence of tender, the plaintiff may, within ten days after such lodgment as aforesaid, serve notice on the defendant that he accepts the amount lodged, which notice shall operate as a stay of all further proceedings and the settlement of the plaintiff’s claim in respect of which the lodgment was made, save as to costs.

If the plaintiff is under a legal disability, then, together with notice of acceptance of the amount lodged, he shall serve a notice of motion on the defendant to have such acceptance approved by the Court, and thereafter no further proceeding in the action shall be taken except by leave of the Judge, and, on the hearing of such notice of motion, the plaintiff may be declared entitled to such costs as the Court may consider just, whether such acceptance is approved or not by the Court.

13.[4] Where the plaintiff not being under any legal disability, wishes to accept the amount lodged, payment thereof shall be made to the plaintiff, or on his written authority to his solicitor, without the necessity for any Decree or Order by the Court, upon the lodgment with the County Registrar or (where the amount concerned has been lodged with the Accountant) with the Accountant and the County Registrar, of a notice of acceptance of such amount in full satisfaction of the claim in respect of which the lodgment is made, signed by the plaintiff or his solicitor. In addition the plaintiff shall lodge a copy of the notice required in Rule 12, or, when no notice was served within the time specified in Rule 12, a letter from the defendant’s solicitor (or where he has no solicitor, from the defendant), consenting to the late acceptance of the amount lodged.

14. Where the plaintiff, not being under legal disability, accepts a lodgment under this Order, he shall be at liberty, in case his entire claim is thereby satisfied, to tax his costs after the expiration of four days from the service of notice of acceptance, unless the Judge shall otherwise order, and in case of non-payment of the costs within seven days after such taxation, to enter judgment for his costs so taxed.

15. If the Plaintiff, not being under a legal disability, does not accept the total amount lodged within the time named, he shall be liable for all costs thereafter incurred on foot of the claim in respect of which the lodgment was made, unless he obtains judgment for a greater amount than the total amount lodged, exclusive of costs.

16. Save as may be otherwise ordered by the Court, if the Plaintiff does not accept the amount lodged, in accordance with the provisions of these Rules, then, at the termination of the proceedings, all sums lodged shall be repaid to the solicitor on record for the Defendant at the time of such termination or, where there is no solicitor on record for the Defendant at that time, to the Defendant personally.

17. No Defence shall be delivered after the time specified in these Rules, without the leave of the County Registrar save as shall otherwise be agreed between the parties, and no Defence shall be delivered unless defendant has previously entered an Appearance as required by these Rules .

18. Subject to Order 17 of these Rules, no pleading subsequent to Defence, or Defence and Counterclaim, shall be allowed.

19. Notwithstanding anything contained in Rule 16 of this Order a plaintiff, prior to service of notice of trial, may, upon written notice to a defendant, lodge money in Court in answer to a counterclaim, subject to the like conditions as to costs and otherwise as upon lodgment in Court by a defendant.

20. In all actions where a lodgment of money is made pursuant to the provisions of the Rules of this Order the party making such lodgment may by notice to the County Registrar or (where the lodgment has been made with the Accountant) by notice to the Accountant, request that the money be invested. The party making such lodgment shall be entitled to any capital gain or income accruing thereon and such capital gain or income shall be paid out to the solicitor for the person who made same or, if there is no solicitor on record for such person, to the person who made same upon the determination of the proceedings subject to any ruling to the contrary which the Court may make. Such income or capital gain shall not form part of such lodgment.[5]

21. (1) A party shall be regarded as a qualified party for the purposes of this rule if such party is:

(a) a Minister of Government; or
(b) the Attorney General; or
(c) the Government; or
(d) the State; or
(e) any party in respect of whom the State is providing an indemnity; or
(f) an indemnifier of any party and authorised to carry on business in the State as an insurance undertaking pursuant to the law for the time being in force; or
(g) the Motor Insurers Bureau; or
(h) the Visiting Motor Insurers Bureau.

(2) Where a qualified party is entitled to make or increase a lodgment on his own behalf or on behalf of any other party under the foregoing rules or by order of the Court then such party may, in lieu of lodging any money in Court, make an offer of tender of payment to the other party of parties to the cause or proceedings.

(3) Any tender offer of payment made hereunder shall be deemed to be a lodgment and to have the same effect as a lodgment and all the foregoing provisions of Order 15 shall apply mutatis mutandis to such tender offers as regards time for making and accepting same as they apply to a lodgment.

(4) A tender offer shall be made in accordance with Form Nos. 6B(i) or 6B(ii), as appropriate, and shall state whether liability is admitted or denied and, subject to Rule 11, shall be regarded as part of the pleadings. Notice of acceptance of the tender shall be in accordance with Form No. 6B(iii) and the provisions of Rules 12, 13, 14 shall apply thereto.

(5) In any case in which a tender offer has been accepted, the party having made such offer thereupon being required to pay the sum specified, such sum specified shall be paid within four weeks of the date of receipt of notice of acceptance of same.

(6) Any qualified party who has made a tender offer which has been accepted but who has failed to pay the sum specified in the said tender offer within the time required shall continue to be liable to pay the sum specified together with interest thereon at the rate fixed for judgments of the Court for each month or portion of the month for which the said sum of any part thereof remains unpaid.

(7) Any party or qualified party shall have liberty to apply to the Court in relation to any tender offer or any matter relating thereto and the court may make such order or give such directions thereon as shall appear just and proper.

22.[6]  In the case of applications for the approval by the Court of an assessment under section 35(2) of the Personal Injuries Assessment Board Act 2003 (in this rule hereinafter referred to as "the 2003 Act"), the following procedure shall apply:

(a) An application for the approval of the Court shall be made by motion ex parte by the next friend, committee or other person referred to in section 35(1) of the 2003 Act.

(b) The application shall be grounded upon an affidavit entitled

"IN THE MATTER OF THE PERSONAL INJURIES ASSESSMENT BOARD ACT 2003

and

"IN THE MATTER OF AN APPLICATION RELATING TO A.B., A [MINOR OR PERSON OF UNSOUND MIND], OF BY C.D., ACTING AS [STATE CAPACITY] ON BEHALF OF THE SAID A.B."

(c) Such application shall be made to a judge of the Circuit Court having jurisdiction in accordance with Order 2 hereof.

(d) The grounding affidavit shall include particulars of the name of the respondent and (i) the address at which the respondent ordinarily resides or carries on any profession, business or occupation, or (ii) the County wherein the tort is alleged to have been committed.

(e) Where the Court approves an assessment in accordance with this rule it may give directions as to how the amount recoverable by the minor or person of unsound mind is to be dealt with, including a direction for lodgement in Court and investment of the amount concerned.

(f) The County Registrar shall send by ordinary pre-paid post or by e-mail to the Personal Injuries Assessment Board a certified copy of any order made pursuant to this rule.

(g) In the event of an order to pay issuing in accordance with section 38 of the 2003 Act, a copy thereof shall be sent forthwith by the personal Injuries Assessment Board to the Country Registrar by ordinary pre-paid post or by e-mail.