PRACTICE AND PROCEDURE BEFORE THE DUBLIN COUNTY REGISTRAR

Transcription

1 PRACTICE AND PROCEDURE BEFORE THE DUBLIN COUNTY REGISTRAR Functions of the County Registrar Tomás Keys 1 1. This paper will focus on the most common applications that practitioners make in the Dublin County Registrar s list each morning. 2. It should be noted that the manner in which the County Registrars lists are run, differ in each Circuit and County and practitioners should always speak with colleagues in advance of appearing before a County Registrar for the first time. 3. It would be beneficial for all practitioners, where possible, to sit in the County Registrar s Court and observe the progress of the lists and the interaction between counsel, solicitors and the County Registrar in advance of moving an application or motion for the first time. Functions of the County Registrar 4. To quote the website, County Registrars: perform a number of quasi-judicial functions which are conferred on them by statute - for example holding motions courts and case progression hearings, conducting arbitrations under the Landlord and Tenant (Ground Rents) Acts and the taxation of costs. They are independent in the exercise of these functions and appeals against their decisions are made directly to the circuit court judge. 5. County Registrars also act as district probate registrars in the fourteen district probate registries outside of Dublin (where the probate office is located). The district probate registry provides a facility to search, apply for and obtain grants of probate and letters of administration in relation to the estates of deceased persons. 6. The County Registrar is also the sheriff and responsible for the enforcement of court orders and acts as returning officer for all referenda and elections in every county except Dublin and Cork. 1 The paper is based primarily on a paper first delivered by Paul Twomey BL in The author would like to thank the Dublin County Registrar Rita Considine BL, Paul Towmey BL and James Geoghegan BL. Any errors or omissions are the authors own 1

2 7. Order 18 of the Circuit Court Rules, 2001 (C.C.R.) provides the various types of orders which the County Registrar may make. Practitioners should familiarise themselves with the list of orders. Order 18 is available online and contains, along with amendments, the powers set out in the Second Schedule of the Courts and Court Officers Act In addition, Section 22 of the Courts and Court Officers Act 2002 amended the Second Schedule of the Courts and Court Officers Act 1995 and provides additional powers of a County Registrar.. There have been numerous updates and changes to the original rules. It is therefore advised that practitioners use a set of Rules from the library rather than simply relying on Order 18 as it appears on If relying on the website ensure that you click on all of the links contained under that order to see what amendments have been made. 9. The most common applications you will see before the County Registrar are: - Discovery (rule 1 (iv)) - Dismiss action/strike out Defence for failure to comply (rule 1 (vi) or rule 1 (vii)) - An order for liberty to issue and serve a Third Party Notice or join a Co- Defendant/Co-Plaintiff (rule 1 (xxix)) - An order for Judgment in Default (rule 1 (xxx-xxxiv)) - An Order amending pleadings, on consent (rule 1 (xii)) - An Order substituting a party in proceedings (rule 1 (x)) - Transfers to the High Court/District Court (rule 1 (xxviii)) - Further and Better Particulars (rule (4)) - Order for possession or well charging relief pursuant to Order 5B 10. Order 18 rule (4) was amended by S.I. 191 of 2008 and now provides that a County Registrar may order that a further and better statement of the nature of the claim or Defence or counterclaim, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, or copies of accounts or documents or further information referred to in Order 17, be delivered, upon such terms as to costs and otherwise as may be just. 11. Order 18 rule 1 (2) C.C.R. provides that in any case where a County Registrar makes an order they can (i) make a supplementary order (ii) place a stay on the order (with conditions) and (iii) give any necessary directions including the payment or taxation of costs. 2

3 12. Under Order 18 rule (3) a County Registrar may, on her own motion or that of either party, transfer a matter to a judge of the Circuit Court. Generally the County Registrar will only transfer matters where all necessary affidavits have been filed. 13. Order 65 Rule 1 sets out that: The Judge or the County Registrar as appropriate may, on such terms as he considers just, at any stage of the proceedings, allow any party to amend or alter his pleading or other document, or may disallow any amendment already made, or may amend any defect or error in any proceeding, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The Dublin County Registrar is of the view that unless all parties are in agreement a motion to amend pleadings which is made returnable before the County Registrar at first instance shall be transferred to the Judge s list. 14. Order 18 Rule 7 provides that a decision of the County Registrar may be appealed to a judge of the Circuit Court within 10 days of the date of the decision. 15. If the ten days has passed, an application can be made to the Circuit Court judge pursuant to Order 67 Rule 6 for an extension of time in which to appeal the decision. 16. Order 19 of the Circuit Court Rules refers to Side Bar Applications which may be considered by a County Registrar. A complete list is provided in the Order but some of the main applications which may be brought before a County Registrar are: (i) (ii) (iii) (iv) (v) For the appointment of a guardian ad litem of an infant or of APUM; To deem good service of a Civil Bill or other Originating document under Order 11 rule 13; Paying monies out of court; Correction of clerical errors in the names of parties, either on consent or not; To make a Consent Order a Rule of Court; 17. A County Registrar can also certify a European Enforcement Order (E.E.O.). This is provided for Order 35A C.C.R. The amount and date of the Judgment should be set out in the affidavit grounding the application. The form of the affidavit is set out Form No. 19A of the Schedule of Forms in the C.C.R. 3

4 18. The Court will check if the provisions of EU Directive 1393/2007 have been complied with if not then the matter will be adjourned to allow for compliance. The Directive is available at Section 27 of the Courts and Courts officers Act 1995 sets out the powers of County Registrars in relation to the taxation of costs. The powers here mirror those of the Taxing Master(s) of the High Court. 20. The County Registrar generally hears taxation matters in the afternoons and counsel rarely attend such hearings. Civil Matters before the County Registrar of Dublin (Excluding Family Law Matters) 21. Unlike the procedure in the High Court where papers can be handed into Court on the day of the making of the application, ex parte applications in the Circuit Court require an application to the Circuit Court office for a hearing date. 22. Except for possession matters which are dealt with below, motions for the sitting of the Court are invited by the Registrar of the Court before the list is taken up. This means that the counsel for the moving party should request that any parties who are not legally represented be called. These parties must be called to ensure that they are made aware that they should stay in court until their matter comes up for hearing as they may be unfamiliar with the workings of the list. If you are in an application involving a lay litigant then you must ask that the party be called during the motions for the sitting of the court. If the lay litigant is in court the County Registrar will explain to them that the matter will take its place in the list and be called when the application will actually be heard. Practitioners who have such motions should be in attendance at the commencement of the list to ensure that the unrepresented litigant is called. 23. The County Registrar for Dublin sits to take the Civil Motions list at 10.00am on Monday, Tuesday and Wednesday in Court 33 on the ground floor of Áras Uí Dhálaigh. On Thursday the Court sits at 10:00am to hear Possession Civil Bill matters and on Friday the County Registrar sits at 10:30am to hear Possession Civil Bill matters. 24. In Dublin, the County Registrar deals with the family law court list at 09.30am, payments out of court at 11am on Thursday s and the care representative nursing home support list (12.00 noon on a Friday) in addition to the normal civil and possession lists. 4

5 25. Before the County Registrar takes up her list it is the normal practice to take matters on consent. This time is only used for that purpose and the consent of all parties is required. Everything must be on consent. 26. As in all other courts, consent matters are dealt with in order of seniority (i.e. date of commencement of practice at the bar) where the most senior practitioner moves their consent matter first. If in doubt, wait until the end of the consent stage or until somebody in your year has moved a consent application. 27. If you have missed the consent stage, don t interrupt the list to seek to have your matter dealt with on consent. Wait for it to come up in the list. This applies to all lists and not just the County Registrar s list. 28. The most common application on consent is that of an adjournment. Just because the parties have given their consent does not mean that the adjournment will be granted. The County Registrar actively manages the list and does not allow adjournments merely to suit solicitors, counsel or their clients. You will be asked for the reason for the adjournment. Counsel not being available is not a good reason! 29. If instructions are not clear or the other side objects to your consent application then ask the Court to let the matter take its place on the list and speak with your opposite number and/or solicitor to confirm what the instructions are and whether there is actual consent. 30. Always know the nature of the case (by reading the papers or if you have not been provided with papers, ask your Master) and also who you act for. The Court s Registrar will always take a note of who Counsel is representing. 31. If there is a difficulty with service then a new return date may be granted for 4-6 weeks time depending on how busy the lists are for civil matters. A new return date may be 5/6 months for possession proceedings. If an adjournment is sought merely to file an affidavit or to make a simple amendment the Court will be less inclined to give lengthy adjournments, if at all. 32. Consent orders for summary judgment matters will require the amount of the dispute, whether the sum attracts interest, the date from which interest will run and what is to be done as regards costs: - No order as to costs - Costs to be measured - Costs to be taxed in default of agreement 5

6 This will form part of the final order so make sure your instructions are clear. 33. If the matter will take longer than 10 minutes, this should be indicated at the outset as the County Registrar may wish to deal with the shorter matters first. 34. Be prepared to answer questions about the case. It is very common for the Court to ask questions germane to the application and the surrounding material facts of the case. If the moving party is seeking to transfer a Personal Injuries matter from the Circuit Court to the High Court then the practitioner should be familiar with the nature of the accident and the various doctors reports. The practitioner should know where in the booklet of papers all of the relevant information is contained. 35. Barristers present the facts which are on affidavit and in appropriate cases, offer legal submission to the Court. It is not appropriate to offer the Court opinions or hypotheses as to facts or histories. If the Court enquires, as will often be the case, about an aspect of the case about which you are not familiar then you are free to consult with your instructing solicitor or to examine your papers. If the answer to the question is not to hand do not make information up, do not guess, do not give personal opinions. You may prejudice your client, mislead the Court and of course embarrass yourself in front of a full Court. Barristers are generally not qualified to give a medical opinion on the likelihood of someone recovering from an injury. If there is a lack of medical evidence or opinion contained in an affidavit grounding a motion to transfer to the High Court, don t hypothesise. 36. In any motion or application, the normal method is for the Applicant to be heard and for the Respondent to respond. It is appropriate for the Applicant to address the Court again if a new matter needs to be addressed or if the Respondent has offered information to the Court which must be challenged. However it is not open to the Respondent to challenge the application for a second time and re-mention matters already offered in rebuttal. If the Court asks a Practitioner about some aspect of the application then a response is warranted but generally once a Respondent responds to the application it is not open to him/her to make their point again. 37. The Court should be addressed as County Registrar. Shortened forms are disrespectful and practitioners should be mindful of this. Over the past year the former Dublin County Registrar, Her Honour Judge Ryan has occasionally sat as County Registrar. If she or any other judge for that matter takes the list they should be addressed as Judge. One way of remembering who you are addressing and avoiding the incorrect title for who you appear before is to write it on your papers. 6

7 38. It is incumbent on the moving party to supply a set of papers for the Court which should be handed up to the Court, at the beginning of the application, by your attending solicitor. The Court file may not contain all the documents in your brief. However, the Court should be working from the same material as the barrister making the application. Sharing briefs with the Court or ripping out papers to be handed into the Court is not appropriate. It is easier for the court if the papers are bound or contained in a folder which is tabbed. 39. Always remember in the Circuit Court barristers should be attended by a solicitor unless the matter can be dealt with on consent. Clause 5.15 of the Code of Conduct of the Bar of Ireland states: In general, Barristers shall be attended in court by their instructing solicitors or their clerks or assistants, but subject to the following exceptions: - When moving an application for an adjournment or consent order; When appearing in the District Court, or in District Court Appeals, on the instructions of a solicitor. Barristers so appearing shall furnish forthwith a written memorandum of the proceedings to their solicitors. Order for Possession and Well Charging proceedings before the County Registrar 40. Every Thursday and Friday the Dublin County Registrar s List deals with possession proceedings brought on foot of legal mortgages and charges and well charging proceedings which are brought on foot of judgment mortgages. 41. The rules governing such procedures are set out in Order 5B of the Circuit Court Rules. The proceedings are heard by way of affidavit evidence. If there is any form of contest on the affidavits, the County Registrar will transfer the proceedings to the Judge s list once all affidavits have been filed and sworn and an appearance has been entered for or on behalf of the Defendant(s). 42. Circuit Court Practice direction 11 2 sets out that unless a Defendant is consenting to the order for possession, that the matter will be adjourned on the return date of the ee9e?OpenDocument 7

8 proceedings. It also provides that the plaintiff s solicitor has certain duties regarding communication by letter in advance of the hearing and upon the adjournment of the matter. 43. Plaintiffs should ensure that in cases where a Defendant has not entered an appearance that the affidavit of service is filed in advance of the return date and that sufficient particulars are set out in relation to service. It is also possible to file the affidavits of service in court on the day of the hearing and it is sometimes preferable to do so rather than filing it on the eve of the hearing as the affidavit may not make it to the court file if it is filed so late. 44. The vast majority of Defendants in these types of proceedings do not have legal representation. As a result the County Registrar expects Plaintiffs to inform the Defendant, in advance, if a matter is not proceeding so as not to inconvenience the Defendant who may need to take a day off work or arrange child minding. 45. The County Registrar normally gives specific directions to Plaintiffs regarding notification of adjournments and the filing of supplemental affidavits which contains evidence of notification. Such directions should be followed and affidavits filed in advance of the adjourned date. 46. There are significant delays in the possession lists with adjournments going back 6-7 months due to the volume of cases. The County Registrar has said on a number of occasions that if there are any difficulties with service that the appropriate application for substituted service should be lodged and moved well in advance of the new return date. 47. In substituted service applications, the County Registrar will require evidence of attempts at service by way of registered post and personal service as well as evidence that a Plaintiff has made sufficient efforts to find the whereabouts of a Defendant which may include the engagement of a tracing agent. 48. In early March 2015, Her Honour Judge Linnane made a ruling in a case involving a financial institution in possession proceedings where the Plaintiff had not made out a specific plea in relation to the jurisdiction of the Court. In the specific case there was no plea that the property, the subject matter of the proceedings, had either a rateable valuation which was not in excess of or in the alternative that the property was the principal private residence of the Defendant. The Judge found that without such a plea on the Civil Bill, the bank could not obtain an order for possession. In order to remedy the situation a Plaintiff can apply to the Court to 8

9 amend the Civil Bill pursuant to Order 65 Rule 1. Such application should be on notice. 49. In May 2015, Muprhy J. delivered judgment in the case of Bank of Ireland Mortgage Bank v Finnegan & Ward [2015] IEHC 304. In that case the judge found that a bank may not rely on a letter from the valuation office saying that a property, although not subject to rateable valuation, would if it was subject to same, have a rateable valuation of less than in order for the Circuit Court to have jurisdiction. The judgment had the effect that banks could not maintain possession proceedings in Circuit Court for any property built after 2002 if it was relying solely on rateable valuation to confer jurisdiction as those properties would not subject to rateable valuation. The Land and Conveyancing Law Reform Act 2013 sets out that any possession proceedings in respect of a principal private residence (PPR) must be brought in the Circuit Court. It followed therefrom that if the Plaintiff had pleaded on the Civil Bill that the property was the principle private residence of the Defendant that the proceedings could continue in the Circuit Court 50. On 26 th November 2015, Mr Justice Noonan delivered a judgment in a case called Bank of Ireland Mortgage Bank v Halpin. In that case the Defendant appellant sought to rely on the findings in Finnegan to set aside an order for possession where a bank had pleaded the rateable valuation to confer jurisdiction but had relied on the type of letter which Murphy J. had found was not allowed. During the course of his judgment, Noonan J. analysed the historical developments of the jurisdiction of the Circuit Court and ultimately found that the Circuit Court has jurisdiction to deal with all matters concerning land save where the property has a rateable valuation that exceeds If properties do not have a rateable valuation, then it does not exceed the jurisdiction of the Circuit Court. He further found that proceedings can be maintained in the Circuit Court concerning land unless there is evidence that the rateable valuation exceeds It would appear that the onus has now shifted and it is for the Defendant to give evidence that the rateable valuation of the property exceeds if they seek to argue that the Circuit Court has no jurisdiction in possession proceedings. 52. Noonan J. states at paragraph 38 of his judgment that he is acutely conscious that he has arrived at a different conclusion than Murphy J. in Finnegan and that he has done so with considerable hesitation and reluctance. He states at paragraph 39 that it seems that the courts attention had not been drawn to certain statutory provisions in the Finnegan case and had that been done it is possible that a difference conclusion would have been arrived at by Murphy J. He added that it is hoped that the matter will be settled in the near future by an appellate court. 9

10 53. Practitioners should also be aware of the recent amendment to some of the provisions Order 5B of the Circuit Court Rules. The new rules affect all proceedings issued from 17 th August 2015 onwards. Circuit Court Practice direction 17 also applies to such proceedings. Practitioners should ensure that the rules and practice direction are followed if their cases are affected by the changes. Proofs 54. The former Dublin County Registrar has provided the following lists for practitioners to note which set out the necessary Proofs for applications for Judgment in Default: 10

11 LIQUIDATED SUMS/RECOVERY OF CHATTEL PROOFS FOR JUDGMENT IN DEFAULT OF APPEARANCE 1. Sealed original Civil Bill with particulars of service endorsed (see Order 11 sub rule 7 of Circuit Court Rules, as amended by SI No.132 of 2009) 2. Affidavit or statutory declaration of service of the Civil bill (see Order 11 sub rules 5, 6, 7, 8, 9 and 10 of circuit Court Rules, as amended by SI No.132 of 2009). In the case of service by registered post, a certificate from An Post evidencing service should be exhibited. 3. Notice of Motion. 4. Certificate of no Appearance (the signed certificate will be on the Court file). 5. Grounding affidavit setting out basis for claim, exhibiting the supporting documentation and exhibiting the 14 day letter. 6. Affidavit of service of Notice of Motion, grounding affidavit and exhibits (see Order 11 sub rules 16 and 18 of Circuit Court Rules, as amended by SI No.132 of 2009). LIQUIDATED SUMS/RECOVERY OF CHATTEL PROOFS FOR JUDGMENT IN DEFAULT OF DEFENCE 1. Appearance. 2. Notice of Motion. 3. Grounding affidavit setting out basis for claim, exhibiting supporting documentation and exhibiting the 14 day letter and swearing that no Defence has been delivered. 4. Affidavit of service of Notice of Motion, grounding affidavit and exhibits (see Order 11 sub rules 16 and 18 of Circuit Court Rules, as amended by SI No.132 of 2009). 11

12 PERSONAL INJURY ACTIONS PROOFS FOR JUDGMENT IN DEFAULT OF APPEARANCE 1. Sealed original Personal Injury Summons with particulars of service endorsed (see Order 11 sub rule 7 of Circuit Court Rules, as amended by SI No.132 of 2009) 2. Affidavit or statutory declaration of service of the Civil bill (see Order 11 sub rules 5, 6, 7, 8, 9 and 10 of circuit Court Rules, as amended by SI No.132 of 2009). In the case of service by registered post, a certificate from An Post evidencing service should be exhibited. 3. Proof of service of the required Verifying Affidavit. This can be incorporated in the affidavit proving service of the Personal Injury Summons or in the affidavit proving service of the Notice of Motion. 4. Notice of Motion. 5. Certificate of no Appearance (the signed certificate should be on the Court file having been filed with the Motion). 6. Grounding affidavit exhibiting the 14 day letter. 7. Affidavit of service of Notice of Motion, grounding affidavit and exhibits (see Order 11 sub rules 16 and 18 of Circuit Court Rules, as amended by SI No.132 of 2009). 12

13 PERSONAL INJURY ACTIONS PROOFS FOR JUDGMENT IN DEFAULT OF DEFENCE 1. Appearance. 2. Proof of service of the required verifying affidavit. This can be incorporated in the affidavit proving service of the Notice of Motion. 3. Notice of Motion. 4. Grounding affidavit setting out basis of claim, exhibiting the necessary supporting documentation and exhibiting the 14 day letter and swearing that no Defence has been delivered. 5. Affidavit of service of Notice of Motion, grounding affidavit and exhibits (see Order 11 sub rules 16 and 18 of Circuit Court Rules, as amended by SI No.132 of 2009). 13