Every practitioner is aware of the importance of entering an Appearance within the appropriate time frame, in order to ensure judgment in default of appearance is not entered against your client. What has been less clear are the circumstances in which a conditional appearance will achieve this objective.
The High Court decision of Ní Raifeartaigh J in The Governor and Company of the Bank of Ireland v John Roarty and Paula Roarty1 has provided clarification of the position and highlights the limited circumstances in which a conditional appearance can be entered.
The decision in Roarty related to an application by the defendant to set aside a judgment which had been marked in the Central Office for failure to enter an appearance to a summary summons. The High Court learned that the Central Office had responded to the defendants attempt to file a conditional appearance confirming that there was no basis for the filing of a conditional appearance in the present case in which the defendants “vigorously contested” the summary summons and purported to withhold consent to jurisdiction until 13 specified conditions were met. A specific objection or challenge to the jurisdiction of the Irish courts was not identified.
The defendant engaged in an exchange of correspondence with the Central Office in which the defendant highlighted a number of previous cases in which conditional appearances had been accepted by the Central Office and requested the Central Office to accept their conditional appearance on this basis. The defendant asserted that the exchange of correspondence led them to believe that their attempt to file a conditional appearance was under review and that they were taken by surprise when judgment was entered against them.
Ultimately the High Court held that the judgment should stand and in reaching this conclusion it considered the test that should be applied where a court is asked to set aside a judgment in default of appearance. This test is based on whether a judgment is regular (one without a procedural error) or irregular (where some procedural error has taken place).
In the case of a regular judgment the Irish Supreme Court has endorsed2 the Saudi Eagle test3 where a defendant must show a defence that has a real prospect of success. The test in relation to an irregular judgment allows a court to exercise its discretion to do justice between the parties, with no requirement to consider the extent or nature of the defendants defence.
The defendant sought to rely on Northern Irish case law which outlines an “arguable defence” test, however Justice Ní Raifeartaigh declined to apply this test and followed the Saudi Eagle approach finding that the defence relied upon was not one with a real prospect of success.
Appearance to contest jurisdiction
This decision reiterates the position that while provision is made under article 24 of Council Regulation (EC) 44/2001 for the entry of a “conditional appearance”, this title can prove misleading in circumstances where a conditional appearance will only be accepted where a defendant seeks to challenge the jurisdiction of the Irish courts to hear a matter. There are no other circumstances in which a conditional appearance will be accepted.