Ireland: Set Aside Of Default Judgments

Last Updated: 27 January 2014
Article by Gearóid Carey

Introduction

Irish rules on service of proceedings mandate specific steps to be taken to formally serve proceedings on defendants. In the ordinary course, once proceedings are issued, the plaintiff must seek to serve the defendant pursuant to these rules and the defendant must then take steps on foot of service. However, in certain instances it may be impossible to effect service by availing of the ordinary methods, in which case it is possible to apply to the court to sanction service by a substitute means. A recent case1 has considered such substituted service and offers useful guidance where the defendant seeks to have the substituted service and any default judgment obtained on foot of it set aside.

Facts

The defendant sought to set aside a €7 million judgment granted against him in default of appearance. In essence, he claimed that he had not received the summary summons after it had been served by ordinary pre-paid post pursuant to an order for substituted service. That order permitted the plaintiff to serve the defendant by ordinary pre-paid post at an address in County Meath. At no point after service of the summons were the documents returned to the plaintiff's solicitors. The defendant claimed that he became aware of the judgment (and service) only when enforcement steps were pursued by the plaintiff.

Although the plaintiff's position was that it had served the proceedings precisely in accordance with the order for substituted service it had obtained, the defendant also sought to set aside that order on the basis that the information as to the residence of the defendant was incorrect. The defendant claimed that:

  • the address in question was not his residence:
  • he did not reside there and never had; and
  • he did not own the house there and never had.

As part of the enforcement steps, the plaintiff's solicitors delivered papers regarding discovery and an examination of the defendant to the address in question, which were returned along with a cover letter from the occupant (the defendant's brother-in-law) stating that the defendant did not live there and did not receive the letters which had been sent there. On foot of that, the plaintiff's solicitor brought this to the attention of the court and sought an alternative method to serve the defendant.

As part of its steps regarding enforcement, the plaintiff had also secured a garnishee order requiring a judgment debtor of the defendant to pay the moneys due to the plaintiff. Solicitors had acted for the defendant in respect of the proceedings against the judgment debtor and, ultimately, the court directed that substituted service could be effected on the solicitors' firm which had represented the defendant in those other proceedings. The solicitors' firm raised various queries regarding the basis on which substituted service was effected on the defendant through that firm and subsequently returned all of the papers to the plaintiff's solicitors, saying that they had no instructions in the matter. However, it was eventually instructed in relation to the matter and brought applications to set aside the substituted service order pursuant to which the originating summons was served and to set aside the judgment.

Decision

The court noted, in respect of the application to set aside service of the summons, that success in that application would involve, as a corollary of improper service, the judgment being set aside. It also noted that the application to set aside the judgment would need to be considered separately, even if it found service to have been validly effected.

On the substituted service order, the court referred to corporate documentation which showed that the defendant had used the address in respect of which the substituted service order was made for business purposes for some time. The court felt, in that context, that there must have been some arrangement in place for the bringing to the attention of the defendant any post received. It also observed that the defendant's sister and brother-in-law (who occupied the premises) had sworn no affidavits to counter such a conclusion. The court also explored other facts which leaned in favour of the conclusion reached that there was no proper basis for setting aside the order for substituted service. On the application to set aside the judgment, the court noted that the irregularity relied on by an applicant to set aside a judgment must be specified. If the court is satisfied that there is an irregularity in the manner in which judgment has been obtained, then judgment will be set aside. There is no requirement for the applicant to demonstrate that there is an arguable basis to resist the plaintiff's claim. The court further noted that irregularity as the principal requirement for a successful application is derived from voluminous and long-standing authority and referred to Crane & Son v Wallis2 in support of that proposition. The court held that in circumstances where there is no basis to set aside the order for substituted service, and service in compliance with that order has been proven, there is no irregularity in terms of how the judgment was obtained.

The court then cited Farden v Richter3 to the effect that, where a judgment is regular, "it is an inflexible rule that the judgment cannot be set aside without an affidavit by the defendant suggesting that he had a defence to the plaintiff's claim". The court observed that the defendant had not set out in affidavit any defence to the plaintiff's claim. While it accepted the defendant's proposition that a person should not be obliged to disclose his or her defence where he or she has not been served, in this case the defendant had been served in accordance with an order for substituted service. In bringing this application, the court felt that the defendant could not have assumed that it would succeed in establishing that the judgment was irregularly obtained, and should have been aware that "he would be required to set forth an arguable defence to the claim before the judgment was set aside. He has not done so". Although it was accepted that Farden does not rule out the possibility that there may be exceptional circumstances where the otherwise inflexible rule would be an obstacle to a defendant, there were no such circumstances in this case. Accordingly, the court refused to set aside the default judgment.

Comment

Although the decision does not represent any novel statement of law, it is a useful restatement of the principles applicable to the setting aside of an order made permitting substituted service and default judgment. Irish courts will typically make substituted service orders based on relevant information regarding how an alternative service might be practically effective; and it is in rare cases that applications to set the service aside are made, and rarer still that the applications succeed. Although the courts are keen to ensure that litigants have their day in court by permitting trial of the underlying action, particularly where a defence is contended to exist, there must be limits on the willingness to set aside default judgments. As is clear from this decision, the courts are not prepared to set default judgments aside without the defendant making out a case that it is appropriate to do so by reference to an arguable defence where the defendant has failed to establish that there is an irregularity as to how the default judgment has been obtained.

Footnotes

1. Danske Bank v Meagher [2013] IEHC 496.

2. [1915] 2 IR 411.

3. (1889) 23 QBD.

This article first appeared in the ILO Litigation newsletter in January 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions