STATUTORY INSTRUMENTS.

S.I. No. 883 of 2004 .

CIRCUIT COURT RULES (SERVICE IN MEMBER STATES OF JUDICIAL AND EXTRA-JUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS), 2004

S.I. No. 883 of 2004 .

CIRCUIT COURT RULES (SERVICE IN MEMBER STATES OF JUDICIAL AND EXTRA-JUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS), 2004

We, the Circuit Court Rules Committee, constituted pursuant to the provisions of section 69 of the Courts of Justice Act, 1936 , and section 12 of the Courts of Justice Act, 1947 , by virtue of the powers conferred on us by section 66 of the Courts of Justice Act, 1924 , and section 70 of the Courts of Justice Act, 1936 , (as applied by section 48 of the Courts (Supplemental Provisions) Act, 1961 ) and section 27 of the Courts (Supplemental Provisions) Act, 1961 , and of all other powers enabling us in this behalf, do hereby, with the concurrence of the Minister for Justice, Equality and Law Reform, make the annexed Rules of Court.

Dated this 8th day of September, 2003.

(Signed): Esmond Smyth

(Chairman of the Circuit Court Rules Committee)

Carroll Moran

Elizabeth Dunne

Patrick Hunt

Fergal Foley

Edmund Carroll

Joe Deane

Gerard Doherty

Noel Rubotham

Susan Ryan (Secretary)

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

Dated this 23rd day of December, 2004.

Signed: MICHAEL McDOWELL,

Minister for Justice, Equality and Law Reform

S.I. No. 883 of 2004

CIRCUIT COURT RULES (SERVICE IN MEMBER STATES OF JUDICIAL AND EXTRA-JUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS), 2004

1. These Rules, which may be cited as the Circuit Court Rules (Service in Member States of Judicial and Extra-judicial Documents in Civil or Commercial Matters), 2004 shall come into operation on the 23rd day of December, 2004.

2. The Order referred to in these rules shall be added to and construed together with those Orders contained in the Circuit Court Rules, 2001, as amended.

ORDER 14B

Rule One

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

“a Member State” or “Member States” means a Member State or Member States of the European Community, with the exception of the Kingdom of Denmark;

“the Regulation” means Council Regulation (EC) 1348/2000 of 29 May, 2000 on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters and amendments thereto;

“the Receiving Agency” or “Receiving Agencies” means the entity or the entities designated by each of the Member States of the EU pursuant to Article 2(2) of the Regulation and in Ireland shall be the appropriate County Registrar;

“the Transmitting Agency” or “Transmitting Agencies” means the entity or the entities designated by each of the Member States of the EU pursuant to Article 2(1) of the Regulation and in Ireland shall be the appropriate County Registrar.

Rule Two

2. This Order applies to the service of documents to which the Regulation applies in the matters referred to at Article 1 of the Regulation.

Rule Three

3. Any party to any proceedings to which the Regulation applies, who wishes to have a document served pursuant to the Regulation, must lodge with the Transmitting Agency:

(a)  two copies of the Document to be served with an additional copy thereof for each person to be served:

(b)  a request for service of the Document, in a language as provided for in Article 4(3) of the Regulation, as the case may be, in the form specified in the Annex to the Regulation:

(c)  an undertaking to pay the costs of service.

Rule Four

4. If any request for service does not comply with the provisions of these Rules, the Transmitting Agency shall inform the applicant and specify the objections to the request.

Rule Five

5. The Transmitting Agency shall, as soon as the request for service complies with the provisions of Rules 2 and 3, transmit the document or documents concerned in accordance with Article 4 of the Regulation.

Rule Six

6. The Transmitting Agency shall forward to the Applicant, by the swiftest possible means of transmission:

(i)   a copy of the receipt referred to at Article 6 of the Regulation;

(ii)   a copy of the notice of return referred to at Article 6 of the Regulation together with the documents transmitted;

(iii)  a request for missing information or documents; or

(iv)  a copy of the certificate evidencing the refusal of the addressee to accept to in Article 8 of the Regulation, as the case may be, as soon as practicable after receipt of those documents or requests by the Transmitting Agency.

Rule Seven

7. The Transmitting Agency shall maintain a list of the Member States to which the Regulation applies and the languages specified by each Member State for the purposes of Article 4(3) of the Regulation and those parts of the relevant Member States to which the relevant language applies. Such list shall be available for inspection during the opening hours of the County Registrar's office.

Rule Eight

8. When properly received, the County Registrar, as Receiving Agency, shall serve the document or documents by registered post or by particular form requested by the Transmitting Agency, unless such a method is incompatible with Irish law, in accordance with Article 7 of the Regulation.

Rule Nine

9. On receipt of a certificate provided for in Article 10 of the Regulation from the relevant Receiving Agency, the Transmitting Agency shall forthwith transmit the certificate to the applicant.

Rule Ten

10. In addition to the method of service described in rule 3, a party to the proceedings may choose to effect service in another Member State by diplomatic or consular agents, by post or by direct service, in accordance with Articles 13, 14 and 15 of the Regulation, save where the Member State in which it is desired to effect service had indicated, in accordance with Article 23(1) of the Regulation, that it is opposed to the service of documents in its territory in the said manner.

Rule Eleven

11. The transmitting Agency shall maintain a list of any declarations made by any Member State indicating that that Member State is opposed to any such form of service. Such list shall be available for inspection during the opening hours of the County Registrar's office.

Rule Twelve

12. (1) Subject to Rule 12(5), judgment shall not be given or entered in default of Appearance in any proceedings to which this Order applies until it is established that:

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

(ii)   the document was actually delivered to the Defendant or to his residence by another method provided for by the Regulation, and that in either case the service or delivery was effected in sufficient time to enable the Defendant to defend.

(2) Judgment in default of Appearance shall only be entered with leave of the Court.

(3) An application for leave to enter Judgment in default shall be made by Motion on notice and shall be supported by an Affidavit verifying the Plaintiffs claim for relief and verifying the steps taken to serve the proceedings and supported by adequate proof thereof.

(4) The Affidavit referred to in Rule 12(3) shall, where the claim is one to which Council Regulation (EC) 44/2001 applies, also state that in the deponent's belief:

(i)   each claim made by the Summons is one which, by virtue of Council Regulation (EC) 44/2001 of 22 December, 2000 on jurisdiction and the recognition and enforcement of Judgments in civil and commercial matters (Regulation 44/2001) or any amendment thereof, the Court has power to hear and determine; and

(ii)   no other Court has exclusive jurisdiction within the meaning of Regulation 44/2001 to hear and determine such claim.

(5) The Court may give leave to enter Judgment if no certificate of service or delivery has been received from the Transmitting Agency, provided that:

(i)   the Document was transmitted by one of the methods provided for in the Regulation;

(ii)   a period of time (of not less than six months), considered adequate by the Court, has elapsed since the date of transmission of the Document; and

(iii)  no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the Member State addressed.

Rule Thirteen

13. The Court may, at any stage, in the event of urgency, make orders for any provisional or protective measures required by the Plaintiff.

Rule Fourteen

14. Any application to extend time for appealing any Judgment obtained in default 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:

(i)   the application was made within a reasonable time after the Defendant had knowledge of the Judgment; and

(ii)   the Defendant, without any fault on his part, did not have knowledge of the Document in sufficient time to defend, or knowledge of the Judgment in sufficient time to appeal; and

(iii)  the Defendant has disclosed a prime facie defence to the action on the merits,

extend the time for appealing same, on such terms and conditions as appear just.

Rule Fifteen

15. No such application to set aside a Judgment obtained in default shall be entertained if not made within a time that the Court shall deem to be reasonable.

Rule Sixteen

16. No application to extend the time for appealing the Judgment shall be entertained in respect of Judgments concerning status or capacity of persons.

Rule Seventeen

17. In the case of a default of Appearance by a Defendant to an originating Summons, the Plaintiff shall file an Affidavit in the appropriate Circuit Court Office verifying the facts relied upon and there upon may apply to the Court for Judgment in default of Appearance.

Rule Eighteen

18. Subject to the provisions of this Order, Orders 26 and 27 shall, in so far as practicable, apply to applications under this Order for leave to enter Judgment.

Rule Nineteen

19. To the extent that any rules contained in any other Order of these Rules are inconsistent with the provisions of Regulation 1348/2000 or of this Order providing for rules of court in respect of Regulation 1348/2000, the provisions of Regulation 1348/2000 or of this Order providing for rules of court in respect of Regulation 1348/2000 shall prevail.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Rules prescribe Circuit Court procedures in respect of Council Regulation (EC) 1348/2000 of 29 May 2000 on the service in Member States (other than Denmark) of judicial and extra-judicial documents in civil or commercial matters and any amendments thereto.