Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

If a defendant wishes to set up a counterclaim against the plaintiff as well as defend a claim, he or she should deliver the defence and counterclaim within the same time allotted for delivery of the defence.

A defendant can also enter a conditional appearance in response to service of the proceedings in order to contest the jurisdiction of the Irish courts to determine the case. A jurisdictional challenge is generally grounded on the basis that the Irish courts are not the appropriate forum for adjudication of the claim or the parties may be contractually bound to refer a dispute to a particular jurisdiction as specified in the contract between them.

Order 16, Rule 1 of the RSC sets out the circumstances in which a defendant may apply to join a third party. (For further detail on joining a third party, see question 26.)

The courts have the power, pursuant to both Order 19, Rule 28 of the RSC and their inherent jurisdiction, to strike out proceedings where they can be shown to be frivolous, vexatious or unsustainable.

Defence structure

How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?

There are no set rules about the contents of a defence; however, it must contain the appropriate denials in respect of the plaintiff’s claim and include any set-off or counterclaim that it seeks to assert. Expert evidence may be used to assist in drafting a defence. In addition, where a defendant proposes to offer expert evidence in any matter at trial, the defence must disclose that intention and state the field of expertise of the expert and the matters on which expert evidence is to be offered.

The defendant must deliver a defence to the plaintiff within 28 days of receiving the statement of claim. Failing this, the plaintiff may issue a motion for judgment in default of defence provided he or she has first written a warning letter to the defendant’s solicitor. Where a defendant wishes to set up a counterclaim, he or she should deliver a counterclaim within the same time allotted for the delivery of the defence.

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

The amendment of pleadings is dealt with in Order 28 of the RSC, which embodies the principle that the interests of justice are best served if the real issues in controversy between the parties are before the court. A party will generally be entitled to amend his or her pleadings provided that irreparable prejudice is not thereby suffered by the opposing party. Order 28 distinguishes between amendments at two stages of proceedings: a party may seek to amend a pleading shortly after its delivery without any necessity for leave; or a party may apply to the court at any time for leave to amend his or her pleadings, and this amendment may be allowed upon just terms.

Rule 6(1)(v) of Order 63A states that Commercial Court judges may, either of their own motion or on the application of a party by motion on notice, give a direction to allow any party to alter or amend an endorsement or pleadings. The guiding principle is that this will facilitate the determination of the proceedings in a manner that is just, expeditious and likely to minimise the costs of proceedings. It is a prerequisite to any successful application that the amendment relates to an issue arising from, and relevant to, the subject matter of the proceedings. Other factors that may be considered by the court in deciding whether to allow an amendment include the potential for prejudice being caused to the other party and the applicant’s conduct.

Sharing liability

How can a defendant establish the passing on or sharing of liability?

It should be noted that the court has discretion as to whether to permit the joining of a third party. The circumstances in which a defendant can apply to join a third party are as follows:

  • the defendant claims that he or she is entitled to a contribution or indemnity from a third party;
  • the defendant claims to be entitled against the third party to any relief or remedy relating to or connected with the original subject matter of the action and that is substantially the same as the claim by the plaintiff against the defendant; or
  • the defendant claims that any question or issue relating to or connected with the subject matter is substantially the same as a question or issue arising between the plaintiff and the defendant and should properly be determined, not only between the plaintiff and the defendant, but between the plaintiff, the defendant and the third party, or between any or either of them.

The court may give leave to the defendant to issue and serve a third-party notice and may, at the same time, if it appears desirable to do so, give the third party liberty to appear at the trial and take part. The court may also generally give such directions as it considers proper to have any question or the rights or liabilities of the parties most conveniently determined and enforced, and to give directions as to the mode in, and extent to which, the third party shall be bound or made liable by the decision or judgment in the action. The court may refuse to give leave where the defendant has delayed in making his or her application to join the third party.

Avoiding trial

How can a defendant avoid trial?

A case may be dismissed before trial if there is a default in pleadings or a failure to meet procedural requirements.

A defendant can make an application to dismiss a claim or pleading provided it can show that either there is no reasonable cause of action or that the action is frivolous or vexatious.

It is also possible to make an application to strike out an action in circumstances where the plaintiff does not take reasonable steps to prosecute the claim once issued. This can arise in circumstances where the plaintiff fails to deliver a statement of claim, but an application to strike for want of prosecution can be taken at any stage in the proceedings where the plaintiff has failed to progress the case for any substantive period of time without reasonable excuse.

In addition, an application to strike out a defence to dismiss a claim can be taken against a party who has failed to meet discovery obligations.

Applications to have a pleading or claim struck out are made in a notice of motion, supported by a grounding affidavit, following which the matter is determined at a hearing based on the affidavits.

Case of no defence

What happens in the case of a no-show or if no defence is offered?

A plaintiff may bring an application to court for judgment in default of defence in circumstances where an appearance has been entered in proceedings commenced by plenary summons and the plaintiff has duly delivered the statement of claim but has received no defence from the defendant’s solicitor in the time permitted.

A court may grant judgment to the plaintiff based on his or her statement of claim and once it is satisfied that all the proofs are in order.

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

A defendant may apply for security for costs by way of a request to the claimant. If the claimant fails to agree to provide security within 48 hours of receiving the request, the defendant can make an application for security for costs to the court by notice of motion and grounding affidavit.

Security for costs can also be sought against an Irish corporate claimant. It is generally easier to obtain an order against a corporate claimant than an individual claimant as a company has the benefit of limited liability. The defendant must establish a prima facie defence and demonstrate that there is reason to believe that the claimant would be unable to pay a successful defendant’s costs. The onus then shifts to the claimant to establish that the order should not be granted. If an order is granted, the proceedings are stayed until the claimant provides the security. If the claimant does not provide the required security, its claim is dismissed.

In respect of obtaining an order for security of costs, it is important to note that different rules apply to foreign individuals and corporations than regarding Irish corporations. It is virtually impossible to obtain an order against an individual based in Ireland, the EU or the territory covered by the Brussels Convention. The granting of the order is at the court’s discretion, and the court grants such an order only in the following circumstances: if the claimant is resident outside the jurisdiction and not within the EU or the European Free Trade Area (EFTA); if the defendant has a prima facie defence to the claim and verifies this on affidavit; or if there are no other circumstances that obviate the need for security for costs.