Rules of the Superior Courts (No. 1) 1989

JurisdictionIreland
CitationIR SI 14/1989

S.I. No. 14 of 1989.

RULES OF THE SUPERIOR COURTS (No. 1), 1989.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48) and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 16th day of January, 1989.

Thomas A. Finlay

Harry Hill

Liam Hamilton

Fred Morris

Brian Walsh

Michael M. Collins

Frank Griffin

D.R. Pigot

Sean Gannon

Mella Carroll

I concur in the making of the annexed Rules of Court

Dated this 24th day of January, 1989

Gerard Collins,

Aire Dlí agus Cirt

S.I. No. 14 of 1989.

RULES OF THE SUPERIOR COURTS (NO. 1), 1989.

1. The following additional Rule shall be inserted immediately after Order 4, rule 1, viz.

"1A. Where an indorsement of claim on an originating summons concerns a claim which by virtue of the 1988 Act, the Court has power to hear and determine, the following provisions shall apply:

(1) The originating summons shall be indorsed before it is issued with a statement that the Court has power under the 1988 Act to hear and determine the claim, and shall specify the particular provision or provisions of the 1968 Convention under which the Court should assume jurisdiction, and

(2) The originating summons shall be indorsed before its issue with a statement that no proceedings between the parties concerning the same cause of action is pending between the parties in another Contracting State.

(3) In this rule, the "1968 Convention" and "the 1988 Act" have the same meaning as in Order 11A, rule 8."

2. Order 5, rule 14 shall be deleted and the following substituted therefor.

"14 (1) Save as is otherwise provided for in these Rules, no summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without leave of the Court.

(2) An originating summons to which Order 11A, rule 2 applies and which is to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, may be issued without leave of the Court, if, but only if, it complies with the following conditions—

( a ) each claim made by the summons is one which, by virtue of the 1988 Act, the Court has power to hear and determine; and

( b ) the summons is indorsed before it is issued with a statement that the Court has power under the 1988 Act to hear and determine the claim and specifying the particular provision or provisions of the 1968 Convention under which the Court should assume jurisdiction; and

( c ) the summons is indorsed with a statement that no proceedings concerning the same cause of action are pending between the parties in another Contracting State.

(3) In this rule—

"the 1968 Convention", "Contracting State" and "the 1988 Act" have the same meaning as in Order 11A, rule 8."

3. Order 11, rule 1 is hereby amended by the insertion immediately before the words "Service out of the jurisdiction of an originating summons" of the following: "Provided that an originating summons is not a summons to which Order 11A applies", and the preamble to the said rule 1, as so amended, is set out in the Table to this Article.

TABLE

1. Provided that an originating summons is not a summons to which Order 11A applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court whenever—

4. The following additional order shall be inserted immediately after Order 11.

"ORDER 11A

SERVICE OUT OF THE JURISDICTION UNDER THE JURISDICTION OFCOURTS AND ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT, 1988.

1. The provisions of this Order only apply to proceedings which are governed by the terms of the 1968 Convention and the 1988 Act.

2. Service of an originating summons or notice of an originating summons out of the jurisdiction is permissible without the leave of the Court, if, but only if, it complies with the following conditions:

(1) The claim made by the summons is one which by virtue of the 1988 Act the Court has power to hear and determine; and

(2) No proceedings between the parties concerning the same cause of action is pending between the parties in another Contracting State; and

(3) Either

( a ) the defendant is domiciled in any Contracting State, or

( b ) the proceedings commenced by the originating summons are proceedings to which the provisions of Article 16 of the 1968 Convention concerning exclusive jurisdiction apply, or

( c ) the defendant is a party to an agreement conferring jurisdiction to which the provisions of Article 17 of the 1968 Convention concerning prorogation of jurisdiction apply.

3. Where an originating summons or notice of an originating summons is to be served out of the jurisdiction under rule 2, the time to be inserted in the summons within which the defendant served therewith shall enter an appearance (including an appearance entered solely to contest jurisdiction by virtue of Article 18 of the 1968 Convention) shall be —

(1) five weeks after the service of the summons exclusive of the day of service where an originating summons or notice of an originating summons is to be served in the European territory of another Contracting State, or

(2) six weeks after the service of the summons exclusive of the day of service where an originating summons or notice of an originating summons is to be served under rule 2 in any non-European territory of a Contracting State.

4. (1) Where two or more defendants are parties to proceedings to which the provisions of Order 11A apply, but not every such co-defendant is domiciled in a Contracting State, then the provisions of Order 11 requiring leave to serve out of the jurisdiction shall apply to each and every such co- defendant.

(2) This rule shall not apply to proceedings to which the provisions of Article 16 of the 1968 Convention concerning exclusive jurisdiction or Article 17 of the 1968 Convention concerning prorogation of jurisdiction apply. Service of such proceedings on all co-defendants shall be governed by the provisions of Order 11A.

5. (1) Subject to the provisions of the 1968 Convention, where the parties to any contract have agreed without conferring jurisdiction for the purpose of Article 17 of the 1968 Convention, that service of any summons in any proceedings relating to such contract may be effected at any place within or without the jurisdiction on any party or on any person on behalf of any party or in any manner specified or indicated in such contract, then, in any such case, notwithstanding anything contained in these Rules, service of any such summons at the place (if any) or on the party or on the person (if any) or in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident. If no place, or mode, or person be so specified or indicated, service shall be effected in accordance with these Rules.

(2) Where a contract contains an agreement conferring jurisdiction to which the provisions of Article 17 of the 1968 Convention concerning prorogation of jurisdiction apply and the originating summons is issued for service out of the jurisdiction without leave under rule 2 of this Order and is duly served in accordance with these Rules, the summons or notice of a summons shall be deemed to have been duly served on the Defendant.

6. Where the defendant is not, or is not known or believed to be a citizen of Ireland, notice of the summons, and not the summons itself, shall be served upon him.

7. Subject to the provisions of this Order, notice in lieu of summons shall be given in the manner in which summonses are served.

8. For the purposes of this Order—

"domicile" is to be determined in accordance with the provisions of Articles 52 and 53 of the 1968 Convention and section 13 of the 1988 Act.

"Contracting State" means Contracting State as defined by section 1 (1) of the 1988 Act.

"the 1968 Convention" means the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (including the Protocol annexed to the Convention) signed at Brussels on the 27th September, 1968 and is to be construed in accordance with section 1 (3) of the 1988 Act.

"the 1988 Act" means the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 ."

5. Order 12, Rule 2 shall be deleted and the following substituted therefor:

"2 (1) Save as otherwise provided for in rule 2 (3), an appearance to any plenary summons, or summary summons shall be entered within eight days after the service of the summons, exclusive of the day of service, unless the Court shall otherwise order.

(2) Save as otherwise provided for in rule 2 (3), a defendant in proceedings commenced by special summons may enter an appearance thereto at any time, but shall not, without the leave of the Court, be entitled to be heard in such proceedings unless he has entered an appearance.

(3) An appearance to an originating summons in respect of proceedings issued for service out of the jurisdiction under Order 11A, rule 2 (including an appearance entered solely to contest jurisdiction by virtue of Article 18 of the 1968 Convention) shall be entered —

(a) within five weeks after the service of the summons exclusive of the day of service where an originating summons or notice of an originating summons is to be served in the...

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