Default of Appearance
1. Where no appearance has been entered to a summons for a defendant who is a child or a person of unsound mind not so found by inquisition, the plaintiff shall, before taking any further step in the proceeding against the defendant, apply to the Master for an order that some proper person be assigned guardian of such defendant by whom he may appear and defend the proceeding. No such order shall be made unless it appears on the hearing of such application that the summons was duly served, and that notice of such application was, after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the application, served upon the person with whom or under whose care such defendant was at the time of serving such summons and also (in the case of such defendant being a child not residing with or under the care of his parent or guardian) served upon the parent or guardian, if any, of such child, unless the Master at the time of hearing such application shall dispense with such last mentioned service.
2.(1) Where any defendant fails to appear to a summons, and the plaintiff wishes to proceed on default of appearance under any of the following rules of this Order or Order 27, rule 13, the plaintiff shall first serve a notice in writing on the defendant confirming his intention to proceed on default of appearance and at the same time consenting to the late entry of appearance within 28 days of the date of the letter.
(2) If no appearance is entered within the said period, the plaintiff shall be at liberty to proceed upon default of appearance under any of the following rules of this Order or Order 27, rule 13 provided that he has filed an affidavit of service of the summons or notice in lieu of service, as the case may be, and of the letter referred to in sub-rule (1).
3. Where any respondent in proceedings commenced by originating notice of motion pursuant to Order 81A, Order 84B or Order 84C fails to enter an appearance to such notice of motion (or, having failed to enter an appearance, has not been heard by leave of the Court in accordance with paragraph (a) of sub-rule (2A) of rule 2 of Order 12), the Court may, on the hearing of the motion, if satisfied as to the service of notice of the motion on that respondent, grant such of the reliefs sought in the notice of motion against such respondent as seem just and proper.
4.(1) Where an originating summons (whether plenary or summary) is indorsed with a claim for a liquidated demand, and the defendant fails, or all the defendants, if more than one, fail to appear thereto, the plaintiff may enter final judgment in the Central Office for such sum as is mentioned in the affidavit required by rule 20 not exceeding the sum indorsed on the summons, together with interest (if any) to the date of the judgment and costs.
(2) Notwithstanding sub-rule (1), in proceedings by a moneylender (as defined by the Consumer Credit Act 1995) , or the personal representative or representatives of a moneylender, or an assignee, for the recovery of money lent by the moneylender, or the enforcement of any agreement or security relating to any such money, judgment shall not be entered in default of appearance unless the leave of the Master or the Court as the case may be, has been obtained in accordance with the provisions of rule 16.
(3) Notwithstanding sub-rule (1), in actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement (as defined by the Consumer Credit Act 1995) or any contract of guarantee relating to such an agreement, judgment shall not be entered in default of appearance unless the leave of the Master or the Court, as the case may be, has been obtained in accordance with the provisions of rule 17.
5.(1) In any case in which no appearance has been entered in a proceeding for the recovery of land within the time limited for appearance, or if an appearance be entered but the defence be limited to part of or to an undivided share in the land only, the plaintiff shall, subject to the provisions of rule 6, be at liberty, whether claims in respect of mesne profits, arrears of rent, or double rent, or damages for breach of contract, or wrong or injury to the premises claimed, have or have not been indorsed on the summons, to enter judgment in the Central Office that the person whose title is asserted in the summons shall recover possession of the land, or of the part or undivided share thereof to which the defence does not apply.
(2) Such judgment shall not contain any award of costs, but same shall be without prejudice to the plaintiff’s right to have the costs adjudicated by the proper officer, and to proceed by action for recovery of such mesne profits, arrears of rent or double rent, damages, and costs, or any of them. Provided that if the proceeding be for recovery of land for non-payment of rent, no judgment shall be entered under this rule until an affidavit has been filed made by the landlord, his agent, receiver, or clerk, stating that there was at the commencement of the proceeding at least one year’s rent due over and above all just and fair allowances.
6 . In any case in which no appearance has been entered in a proceeding for the recovery of land within the time limited for appearance, or if an appearance be entered but the defence be limited to part of or to an undivided share in the land only, the plaintiff, in lieu of proceeding under rule 5, shall, as to the claim for recovery of such land or such part or undivided share thereof, as the case may be, and the claim (if any) in respect of mesne profits, arrears of rent, or double rent, or damages for breach of contract, or wrong or injury to the premises claimed, be at liberty (in the case of a proceeding commenced by plenary summons) to proceed under rule 7 or (in the case of a proceeding commenced by summary summons) to set the summons down for hearing on such day as the Master may fix, and in such latter case, such judgment may be given, on the hearing of the summons, as the Master, in a case within his jurisdiction, or the Court may consider the plaintiff to be entitled to.
7.(1) In case of default of appearance by any defendant (other than a defendant mentioned in rule 1) to a plenary summons, the plaintiff shall, except in the case of a claim otherwise provided for in any of the preceding rules of this Order, deliver a statement of claim by filing the same in the Central Office and thereupon may apply to the Court by motion on notice to the defendant for judgment in the proceeding in default of appearance, and (if necessary) ascertainment of any damages to which the plaintiff may be entitled, with a jury in case any party is entitled to a jury and requires such, but otherwise without a jury, and in the latter case the Court may fix the amount of such damages itself on evidence by affidavit or otherwise, or may refer the matter to the Master to determine.
(2) Where, in a case to which sub-rule (1) applies, the provisions of any order for substituted service of the summons, or any order under Order 11 granting leave to serve the summons or notice of the summons out of the jurisdiction shall be deemed to apply to service of the notice of motion.
8. In case of default of appearance by any defendant to a personal injuries summons as defined in Order 1A, the plaintiff (without delivering a statement of claim) may apply to the Court by motion for judgment in the action in default of appearance upon filing in the Central Office an affidavit or affidavits of service of the personal injuries summons and an affidavit verifying the contents of the said personal injuries summons.
9. Where a summons is indorsed with a claim for the delivery of specific goods, either alone or with any other claim, and the defendant fails to appear, the plaintiff may, if he requires the specific delivery of such goods, apply to the Court for an order for judgment for the return of the goods detained without giving the defendant the option of retaining such goods upon paying the value thereof and for the ascertainment, in such manner as the Court may direct, of the goods in respect of the non-delivery of which the plaintiff is entitled to recover and which remain undelivered, and, upon the same being so ascertained an order of delivery may issue for the same.
10. Where an originating summons (whether plenary or summary) is indorsed with a claim for a liquidated demand and there are several defendants, of whom one or more appear to the summons, and another or others of them fail to appear, the plaintiff may enter final judgment in accordance with rule 4 against such defendants as have not appeared, and may issue execution upon such judgment, without prejudice to his right to proceed against such of the defendants as have appeared.
11. Where there are several defendants to a plenary summons mentioned in rule 7 and one or more of such defendants appear to such summons, and another or others of them fail to appear, the plaintiff may proceed under rule 7 against the defendant or defendants so failing to appear and the application for judgment thereunder shall be heard and the damages (if any) to which the plaintiff may be entitled ascertained, as against such defendant or defendants, at the same time as the trial of the proceeding or issue therein against the other defendant or defendants, unless the Court shall otherwise direct.
12. Where a plenary summons is indorsed with a claim for a liquidated demand together with another claim or other claims and any defendant fails to appear thereto, the plaintiff may enter final judgment for the liquidated demand, together with interest (if any) and costs as provided in the preceding rules of this Order, against the defendant or defendants failing to appear and may proceed, as to the other claim or claims, as provided in such of the said rules as may be applicable.
13. Where final judgment is entered pursuant to any of the preceding rules of this Order:
(a) the Court shall, where it is satisfied on an application made for that purpose by motion on notice to the plaintiff that there is some irregularity in the proceedings or the process by which such judgment was obtained, set aside such judgment upon such terms, if any, as may be just;
(b) the Court may set aside such judgment notwithstanding that it was obtained in a regular manner and give leave to defend upon such terms as may be just, where it is satisfied by evidence on affidavit by or on behalf of the defendant in an application by motion on notice to the plaintiff that the defendant has a good defence to the plaintiff’s claim and that the interests of justice require that leave to defend should be given;
(c) the Court may, on an application made for that purpose, vary such judgment upon such terms, if any, as may be just.
14. Where an originating summons is indorsed with a claim on any bond, covenant, or agreement within the Common Law Procedure Amendment Act (Ireland) 1853, section 145, and the defendant fails to appear thereto, no statement of claim shall be delivered and the plaintiff may, without any suggestion of breaches, apply by motion to the Court for leave to enter judgment for such sum as may seem just, and on such application the Court may order judgment to be entered accordingly or may direct such inquiry, or trial of issues, as may appear to be necessary for the ascertainment of the plaintiff’s demand, and if the sum ascertained to be due does not amount to the sum mentioned in such bond, covenant, or agreement, the plaintiff, his executors or administrators, may in the event of any subsequent breach, from time to time, apply to the Court, and the Court may thereupon so far as the sum mentioned in such bond, covenant, or agreement, or the remainder thereof, will reach, make such further order or direct such further inquiry or trial to the effect aforesaid, as may be just.
15. In any case in which the plaintiff is not entitled to enter final judgment in the Central Office under any of the preceding rules of this Order, and in which the defendant fails, or all the defendants if more than one, fail to appear, but in which, by reason of payment, satisfaction, abatement of nuisance, or for any other reason, it is unnecessary for the plaintiff to proceed, he may by leave of the Master, to be obtained by motion on notice, enter judgment for costs. Provided that such notice shall be filed and shall be served in the manner in which service of the summons has been effected, or in such other manner as the Master may direct.
16.(1) In proceedings brought by a moneylender or the personal representative or representatives of a moneylender or an assignee for the recovery of money lent by the moneylender or the enforcement of any agreement or security relating to any such money, an application for leave to enter judgment in default of appearance shall be made by motion returnable before the Master not less than four clear days after service of the notice.
(2) Such notice of motion shall not be issued until the time limited for entering an appearance has expired and an affidavit of service of the summons has been filed. The notice of motion may be served personally or by registered post, addressed to the defendant at his last known address.
(3) At the hearing of the application, whether the defendant appears or not, the Master or the Court, as the case may be:
(a) may exercise the powers of the Court under the Consumer Credit Act 1995, and
(b) if satisfied by affidavit or otherwise that the notice of motion has been duly served, may give leave to enter final judgment for the whole or part of the claim, and
(c) as regards any part of the claim as to which leave to enter final judgment is refused, may give any such directions or make any such order as might have been given or made upon the hearing of the summons or of a motion for judgment, as the case might be, if the defendant had entered an appearance, upon such terms as to notice to the defendant and otherwise as may be thought just.
17. In actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement or any contract of guarantee relating to such an agreement, an application for leave to enter judgment in default of appearance shall be made in the same manner as is prescribed in sub-rules (1) and (2) of rule 16, and judgment shall not be entered until an affidavit shall have been filed stating that the requirements specified in section 32 or (as the case may be) section 58 of the Consumer Credit Act 1995, have been complied with.
18. In any case coming before him under any of the preceding rules of this Order, the Master may, in lieu of giving or refusing leave to enter judgment, place the summons in the Court list for hearing.
19. In all proceedings not by the rules of this Order otherwise specially provided for, in case the party served with the summons does not appear within the time limited for appearance, upon the filing by the plaintiff of an affidavit of service and, where appropriate, of a statement of claim, the proceeding may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 37.
20. Before judgment by default shall be entered for any liquidated demand under this Order an affidavit shall be filed specifying the sum then actually due.
21. If, in any case in which a plaintiff is entitled to enter final judgment in the Central Office under any of the preceding rules of this Order, the plaintiff claims interest on the whole or any part of the sum of money for which he is entitled to enter such judgment between the date on which the cause of action accrued and the date of judgment under section 22 of the Courts Act 1981, the plaintiff may apply to the Court ex parte for an order for judgment inclusive of such interest. The said application shall be supported by an affidavit sworn by the plaintiff or some other person who can positively swear to the facts specifying the sum then actually due and the facts relied on in support of the claim for interest.
22.(1) The plaintiff shall notify the defendant in writing within 28 days from the date any judgment is entered in the Central Office in accordance with this Order.
(2) The plaintiff shall serve on the defendant a copy of any order of the Court granting judgment in default of appearance made in accordance with any provision of this Order within 28 days from the passing and perfection of such order.