Order 41B - Service Of Documents In Civil Proceedings - Service Of Documents Outside The State Without The Permission Of The Court : S.I. No. 17 Of 2014
The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):
No41B-S.I. No. 617 Of 2015: District Court (Jurisdiction And The Recognition And Enforcement Of Judgments In Civil Or Commercial Matters) Rules 2015
Related link
S.I. No. 17 of 2014 - provisions overview
SUBSEQUENT PROCEEDINGS UNDER-
COUNCIL REGULATION (EC) NO 44/2001 ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS (the “Jurisdiction Regulation”)
THE BRUSSELS CONVENTION OF THE EUROPEAN COMMUNITIES ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS, 1968 (the “Brussels Convention”)
THE LUGANO CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS BETWEEN MEMBER STATES OF THE EUROPEAN COMMUNITIES AND THE EUROPEAN FREE TRADE ASSOCIATION, 2007 (the “Lugano Convention”)
COUNCIL REGULATION (EC) 4/2009 OF 18 DECEMBER 2008 ON JURISDICTION, APPLICABLE LAW, RECOGNITION AND ENFORCEMENT OF DECISIONS AND COOPERATION IN MATTERS RELATING TO MAINTENANCE OBLIGATIONS (the “Maintenance Regulation”)
THE ROME CONVENTION BETWEEN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES ON THE SIMPLIFICATION OF PROCEDURES FOR THE RECOVERY OF MAINTENANCE PAYMENTS (the “Rome Convention”) AND THE MAINTENANCE ACT 1994
THE NEW YORK CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE (the “New York Convention”) AND THE MAINTENANCE ACT 1994
THE HAGUE CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN 1996 (the “Hague Child Convention”)
1 — DEFINITIONS
1 Definitions
Civil and commercial matters: definitions
1. (1) In and for the purposes of Part 2 of this Order-
the “1998 Act” means the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1998 (No. 52 of 1998);
the “Brussels Convention” means the Convention on Jurisdiction and the enforcement of judgments in civil and commercial matters (including the Protocol annexed to that Convention) done at Brussels on the 27th day of September, 1968, (as adjusted by the Accession Conventions of 1978, 1982, 1989 and 1996);
the “Conventions” means the Brussels Convention, the 1971 Protocol, the 1978 Accession Convention, the 1982 Accession Convention, the 1989 Accession Convention and the 1996 Accession Convention (each as defined in section 2 of the 1998 Act);
“domiciled” must be construed, having regard to the instrument applicable in any given case, in accordance with Articles 2 and 59 to 61 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, section 15 and the Ninth Schedule of the 1998 Act and Articles 52 and 53 of the Brussels Convention;
“judgment” has the meaning assigned to it in section 4(1) of the 1998 Act;
the “Jurisdiction Regulation” means Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (O.J. L. 12 of 16 January 2001 and L. 307/28 of 24 November 2001) as amended by Commission Regulation (EC) No. 1496/2002 of 21 August 2002 (O.J. L. 225/13); by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded of 16 April 2003 (O.J. L. 236/33) and by the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (O.J. L. 112/21 of 24 April 2012);
the “Lugano Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Lugano on the 30th day of October 2007, as approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008, as given further effect in the State by the 1998 Act as amended by the Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012, and includes the Protocols and Annexes;
“Member State” means a member state of the European Union in which the Jurisdiction Regulation applies.
Maintenance matters: definitions
(2) In and for the purposes of Parts 3 to 7 of this Order:
the “1976 Act” means the Family Law (Maintenance of Spouses and Children) Act 1976 (No.11 of 1976);
the “1994 Act” means the Maintenance Act 1994 (No. 28 of 1994);
the “2011 Regulations” means the European Communities (Maintenance) Regulations 2011 (S.I. No. 274 of 2011) as amended by the European Communities (Maintenance)(Amendment) Regulations 2011 (S.I. No. 612 of 2011);
“Central Authority under the Maintenance Regulation” means the Minister for Justice and Equality as designated by Regulation 16 of the 2011 Regulations (but includes any other person for the time being designated by the State to discharge in or for the State the duties imposed by the Maintenance Regulation on such an authority);
“Central Authority under the 1994 Act” means a Central Authority appointed by order of the Minister for Justice and Equality under section 4(1)(a) of the 1994 Act to discharge the functions required of it under the 1994 Act or required of a Central Authority under the Rome Convention or of a transmitting agency or receiving agency under the New York Convention;
“central authority of a Member State” means the person designated by a Member State in which Chapter VII of the Maintenance Regulation applies to discharge in or for that State (in accordance with Article 49 of the Maintenance Regulation) the duties imposed by the Maintenance Regulation on such an authority;
“central authority of a reciprocating jurisdiction”, when used in the context of proceedings under Part III of the 1994 Act, means:-
(a) the central authority of such a jurisdiction which has been designated pursuant to paragraph 1 or, where appropriate, paragraph 2 of Article 2 of the Rome Convention, or
(b) an authority of such a jurisdiction with functions corresponding to those exercisable by the Central Authority within the State;
“central authority of a designated jurisdiction” means:-
(a) a transmitting or receiving agency in a state which is a contracting party to the New York Convention, or
(b) an authority of a designated jurisdiction with functions corresponding to those exercisable by the Central Authority within the State;
“claimant” means, according to the context, either:-
(a) a person residing in a Member State (including any body which under the law of that jurisdiction is entitled to exercise the rights of redress of or to represent that person) and claiming pursuant to the Maintenance Regulation to be entitled to receive maintenance from a person residing in the State, or
(b) a person residing in a designated jurisdiction (including any body which under the law of that jurisdiction is entitled to exercise the rights of redress of or to represent that person) and claiming pursuant to Part III of the 1994 Act to be entitled to receive maintenance from a person residing in the State, or
(c) a person residing in the State (including a competent authority within the meaning of Part 12 (Liability to Maintain Family) of the Social Welfare (Consolidation) Act 2005) and claiming pursuant to the Maintenance Regulation to be entitled to recover maintenance from a person residing in a Member State, or
(d) a person residing in the State (including a competent authority within the meaning of Part 12 (Liability to Maintain Family) of the Social Welfare (Consolidation) Act 2005) and claiming pursuant to Part III of the 1994 Act to be entitled to recover maintenance from a person residing in a designated jurisdiction;
“Contracting State”,
(a) when used in the context of proceedings under the Brussels Convention, has the meaning assigned to it in section 4(1) of the 1998 Act,
(b) when used in the context of proceedings under the Lugano Convention, means a State in respect of which that Convention has entered into force or taken effect in accordance with Article 69 or 72 thereof;
“designated jurisdiction” means:-
(a) any state which is a contracting party to the New York Convention, or
(b) any other state or jurisdiction which is declared by order of the Minister for Foreign Affairs to be a designated jurisdiction for the purposes of Part III of the 1994 Act;
“domiciled” and “habitually resident”, when used in relation to maintenance proceedings, must be construed in accordance with the Maintenance Regulation;
the terms “2007 Hague Protocol”, “decision”, “enforceable maintenance order”, “enforcement order”, “maintenance debtor” and “maintenance order” have the meanings assigned to them respectively in Regulation 2 of the 2011 Regulations;
“maintenance creditor” includes any body which, under the law of a reciprocating jurisdiction, is entitled to exercise their rights of redress of, or to represent, the creditor, and references in these Rules to a maintenance creditor or to a claimant (as defined herein) must be construed as including references to the Central Authority under the Maintenance Regulation and the Central Authority under the 1994 Act;
the “Maintenance Regulation” means Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L7 of 10 January 2009, page 1);
“Member State”, when used in relation to maintenance proceedings, means a member state of the European Union in which the relevant provision of the Maintenance Regulation applies;
the “New York Convention” means the Convention on the recovery abroad of maintenance done at New York on the 20th day of June, 1956;
“reciprocating jurisdiction” means a Member State or Contracting State (within the meaning of the 1998 Act) which is declared by order of the Minister for Foreign Affairs to be a reciprocating jurisdiction;
“respondent” means, according to the context, either:-
(a) a person residing in the State from whom maintenance is sought to be recovered pursuant to the Maintenance Regulation by a person residing in a Member State, or
(b) a person residing in the State from whom maintenance is sought to be recovered pursuant to Part III of the 1994 Act by a person residing in a designated jurisdiction, or
(c) a person residing in a Member State from whom maintenance is sought to be recovered pursuant to the Maintenance Regulation by a person residing in the State, or
(d) a person residing in a designated jurisdiction from whom maintenance is sought to be recovered pursuant to Part III of the 1994 Act by a person residing in the State.
Service: definitions
(3) In this Order:
“Hague Convention” means the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
“Service Regulation” has the same meaning as in Order 41A, rule 1.
2 — CROSS-BORDER CIVIL AND COMMERCIAL PROCEEDINGS IN THE STATE
Jurisdiction Regulation
Brussels Convention
Lugano Convention
2 Venue in cross-border insurance matters
2. When it is proposed to bring proceedings before the District Court by virtue of:
(a) Article 9 of either the Jurisdiction Regulation or the Lugano Convention, or
(b) Article 8.2 of the Brussels Convention,
(all of which relate to insurance matters) against an insurer domiciled in a Member State or Contracting State other than the State and the policyholder is domiciled in the State, the proceedings may be brought, heard and determined at any sitting of the Court for the transaction of civil business for the Court area in which the policy-holder is ordinarily resident or carries on any profession, business or occupation.
3 Venue in cross-border consumer contract claims
3. When a consumer who is domiciled in the State proposes to bring proceedings before the District Court by virtue of:
(a) Article 16 of either the Jurisdiction Regulation or the Lugano Convention, or
(b) Article 14 of the Brussels Convention
(all of which relate to consumer contracts) against the other party to a contract and that other party is domiciled in a Member State or Contracting State other than the State, the proceedings may be brought, heard and determined at any sitting of the Court for the transaction of civil business for the Court area in which the consumer is ordinarily resident or carries on any profession, business or occupation.
4 Application of the Hague Convention or Service Regulation
4. (1) The provisions of the Service Regulation apply to civil proceedings brought in the District Court by virtue of the Jurisdiction Regulation.
(2) The provisions of the Hague Convention apply to civil proceedings brought in the District Court by virtue of the Conventions or the Lugano Convention.
(3) When any document for use in such civil proceedings is required by this Part to be served on a person in another State in which the Service Regulation applies, service must be effected in accordance with the provisions (including Articles 7 to 10) of the Service Regulation and this Part.
(4) When any document for use in such civil proceedings is required by this Part to be served on a person in another State in which the Service Regulation does not apply but in which the Hague Convention applies, service must be effected in accordance with the provisions (including Articles 8 to 11) of the Hague Convention and this Part.
5 Beginning proceedings against a person domiciled abroad
5. (1) Notwithstanding the provisions of Order 41A, service of proceedings begun in the District Court by virtue of the Jurisdiction Regulation, the Conventions or as the case may be, the Lugano Convention, against a person who is domiciled in a Member State or Contracting State other than the State, may be effected (in accordance with rule 4 of this Order and, where applicable, the provisions of the Service Regulation or, as the case may be, the Hague Convention) without prior permission of the Court.
(2) When proceedings are instituted in the District Court by virtue of the Jurisdiction Regulation, the Conventions or the Lugano Convention against a person who is domiciled in a Member State or Contracting State other than the State and that person is not or is not known or believed to be a citizen of Ireland, notice of the document commencing the proceedings in the Form 41B.01 Schedule C and not the document itself must be served on that person.
(3) A claimant or claimant’s solicitor may begin such proceedings by completing, signing, stamping (if so required) the claim notice or other document beginning the proceedings and filing it, together with duly completed originals and copies of the notice ( Form 41B.01 Schedule C) and of a certificate in the Form 41B.02 Schedule C with the Clerk for the Court area for which the proceedings are to be issued.
(4) The Clerk must stamp them with the official stamp showing the date of issue and return the documents to the claimant or claimant’s solicitor.
(5) A notice and certificate returned under sub-rule (3) must be served on the respondent as indicated in rule 4 (which may include service by post provided that if such service is into a Contracting State in which the Hague Convention applies, the State of destination has not made an objection to such service under Article 10(a) of the Hague Convention) or, where appropriate, in accordance with the provisions of Order 41A.
(6) Where the documents are to be served in the European territory of another Member State or Contracting State the time permitted for filing and entering an appearance and defence must be at least five weeks from the date of service. Where the documents are to be served in any non-European territory of another Member State or Contracting State, the time permitted for filing and entering an appearance and defence must be at least six weeks from the date of service.
(7) On receipt of the certificate of service prescribed in Article 10 and the Annex of the Service Regulation or Article 6 of the Hague Convention, the claimant (or solicitor for the claimant) must lodge with the Clerk the originals of:
- the claim notice, civil summons or other document instituting the proceedings,
- (where appropriate) the notice of commencement of proceedings ( Form 41B.01) which was served,
- the certificate ( Form 41B.02) which was served, and
- the certificate of service,
at least four days before the date on which the proceedings are first listed before the Court.
(8) Where service has been effected by registered post or insured post the following provisions must apply-
(a) the claimant or claimant’s solicitor must, not earlier than ten days after the date of posting, lodge with the Clerk the relevant documents listed in sub-rule (7), together with a statutory declaration as to service of the documents posted, the certificate of posting and the advice of delivery form (when returned);
(b) the documents issued for service must, subject to the provisions of Article 9 of the Service Regulation or, as the case may be, Article 15 of the Hague Convention, be deemed to have been served at the time at which the envelope would be delivered in the ordinary course of post;
(c) the statutory declaration as to service, the certificate of posting and the advice of delivery form must, subject to the provisions of Article 9 of the Service Regulation or, as the case may be, the said Article 15 of the Hague Convention, together be deemed to be sufficient evidence of service.
6 Where the respondent is a citizen of Ireland
6. (1) When proceedings are begun in the District Court by virtue of the Jurisdiction Regulation, the Conventions or the Lugano Convention against a person who is domiciled in a Member State or Contracting State other than the State, and that person is a citizen of Ireland, the claim notice or other document beginning the proceedings, with necessary modifications, may be served (rather than notice of the document).
(2) Subject to sub-rule (1), the requirements of rule 5 apply in such cases and must be construed accordingly.
7 Appearance and defence
7. Where, in proceedings to which rule 5 or rule 6 relates, a respondent intends to appear or to be represented at the hearing for the purpose of:
(a) defending the proceedings and/or,
(b) by virtue of Article 24 of either the Jurisdiction Regulation or the Lugano Convention, or Article 18 of the Brussels Convention for the purpose of contesting the jurisdiction of the Court,
the respondent or respondent’s solicitor must file:
(i) in proceedings begun by claim notice, an appearance and defence; or
(ii) in proceedings begun by civil summons or other document, a notice of appearance and intention to defend
so soon as to reach the Clerk within the period of five weeks or, as the case may be, six weeks, prescribed by rule 5(6) and within the same period serve a copy on the claimant or claimant’s solicitor.
8 Hearing of proceedings
8. (1) The provisions of Order 47A (Judgment in Default in Non-Debt Claims) apply to proceedings to which this Part relates with the modifications identified in Order 47.
(2) At the hearing of proceedings referred to in rule 5 or 6, the Clerk must produce to the Court any communication or correspondence received from the respondent.
Where the respondent does not appear
(3) Where the respondent fails to appear and is not represented at the hearing, the Court may, if it considers it necessary to do so, require the production of the advice of delivery form confirming delivery to the respondent or to the respondent’s address of the envelope containing the copy documents for service referred to in rule 5(5).
(4) Where the respondent has not filed an appearance, the claimant must, if applying for judgment by default, show to the satisfaction of the Court-
(a) that each claim made in the document instituting the proceedings is one which, by virtue of the provisions of the Jurisdiction Regulation, the Conventions or, as the case may be, the Lugano Convention, the Court has jurisdiction to hear and determine,
(b) that no other Court has exclusive jurisdiction within the meaning of the Jurisdiction Regulation, the Brussels Convention or, as the case may be, the Lugano Convention to hear and determine any such claim,
(c) that no proceedings involving the same cause of action are pending between the parties in another Member State or, as the case may be, in another Contracting State,
(d) that the respondent was duly served with the document beginning the proceedings or notice of that document, and
(e) that the respondent has been able to receive the document beginning the proceedings or notice in sufficient time to enable him or her to arrange for his or her defence, or all necessary steps have been taken to this end, as required by Article 26 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, Article 20 of the Brussels Convention.
(5) Where the respondent has filed an appearance or otherwise given notice of his or her intention to defend, judgment must not be given until the requirements of Article 19 of the Service Regulation or, as appropriate, Article 15 of the Hague Convention (as set out in Order 41A, rule 10) have been complied with.
(6) Notwithstanding sub-rule (5), the Court may give judgment even if no certificate of service or delivery as provided for by the Service Regulation or by the Hague Convention has been received, if all the conditions listed in Article 19 of the Service Regulation or Article 15 of the Hague Convention (as set out in Order 41A, rule 14) are fulfilled.
(7) Where the Court gives judgment against a respondent in proceedings to which this rule relates, the claimant, (or claimant’s solicitor) must immediately notify the respondent of having obtained the judgment.
(8) Where judgment has been given in such proceedings against a respondent who has not appeared and the respondent wishes to apply for an extension of time for appeal from the judgment, the provisions of Order 41A, rule 15 apply.
9 Enforcement of judgments abroad: provision of documents
9. (1) An interested party who, for the purposes of Articles 53 and 54 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, Articles 46 and 47 of the Brussels Convention, requests the provision of the documents mentioned in section 14 of the 1998 Act in respect of a judgment given in the District Court, must lodge with the Clerk for the Court area in which the judgment was given-
(a) an original and two copies of the judgment duly completed,
(b) a certificate in duplicate in the Form 41B.03 Schedule C, and
(c) where appropriate, an original and copy or copies of the document or documents establishing that notice of the institution of proceedings was served on the respondent.
(2) When the judgment has been signed by the Judge and served in accordance with the provisions of rule 10, the Clerk must give to the party requesting them a duly authenticated copy of the judgment, a certificate in the Form 41B.03 Schedule C and a certified true copy or copies of the document or documents referred to in sub-rule 1(c), and must retain the other documents in his or her custody.
10 Service of judgment and proof of service
10. (1) Where, for the purposes of Article 53 of either the Jurisdiction Regulation or the Lugano Convention or, as the case may be, Article 47 of the Brussels Convention, it is necessary to serve on a respondent a judgment given at a sitting of the District Court, service must be effected by or on behalf of the claimant in accordance with the provisions of the Service Regulation or the Hague Convention and this Part.
(2) When service has been effected and duly certified, the certificate of service or, where appropriate, the certificate of posting, statutory declaration as to service and the advice of delivery form, must be lodged with the Clerk for retention with the original judgment.
(3) On the request of a party applying for enforcement of a judgment for the provision of the documents referred to in Article 47.1 of the Brussels Convention, the Clerk must give to that party a certificate in the Form 41B.04 Schedule C (with any necessary modifications) and a certified copy or copies of the relevant document or documents lodged under sub-rule (2).
(4) On the request of a party applying for enforcement of a judgment for the provision of the certificate referred to in Article 54 of either the Jurisdiction Regulation or the Lugano Convention, the Clerk must give to that party a certificate in the form of Annex V of the Jurisdiction Regulation.
3 — CROSS-BORDER MAINTENANCE PROCEEDINGS IN THE STATE
Maintenance Regulation
11 Venue in cross-border maintenance matters
11. When it is proposed to bring proceedings before the District Court by virtue of Chapter II of the Maintenance Regulation and Regulation 3, 4 or 6 of the 2011 Regulations, against a person domiciled or habitually resident outside the State, and the creditor or debtor, as the case may be, is habitually resident in the State, or is deemed to be habitually resident in the Dublin Metropolitan District, the proceedings may be brought, heard and determined at any sitting of the Court for the Court area in which creditor or debtor, as the case may be, is habitually resident or is deemed to be habitually resident.
12 Application of the Hague Convention or Service Regulation
12. (1) The provisions of the Service Regulation or of the Hague Convention apply, where relevant, to proceedings brought in the District Court by virtue of the Maintenance Regulation.
(2) When any document for use in such proceedings is required by this Part to be served on a person in another Member State, service must be effected in accordance with the provisions (including Articles 7 to 10) of the Service Regulation and this Part.
(3) When any document for use in such proceedings is required by this Part to be served on a person in another State which is a state in which the Service Regulation does not apply but in which the Hague Convention applies, service must be effected in accordance with the provisions (including Articles 8 to 11) of the Hague Convention and this Part.
13 Beginning proceedings against a person domiciled abroad
13. (1) Notwithstanding the provisions of Order 41A, service of proceedings which may be instituted in the District Court by virtue of the Maintenance Regulation and the 2011 Regulations against a person who is neither domiciled nor habitually resident in the State may be effected (in accordance with rule 4 and, where applicable, the provisions of the Service Regulation or, as the case may be, the Hague Convention), without prior permission of the Court.
(2) When proceedings are begun in the District Court by virtue of the Maintenance Regulation against a person who is neither domiciled nor habitually resident in the State, and that person is not or is not known or believed to be a citizen of Ireland, notice of the document beginning the proceedings (in the Form 41B.01, Schedule C) and not the document itself must be served on that person.
(3) A claimant or claimant’s solicitor may begin proceedings mentioned in sub-rule (2) by completing, signing, stamping (if so required) the maintenance summons or other document beginning the proceedings and filing it, together with duly completed originals and copies of the notice ( Form 41B.01, Schedule C) and of a certificate in the Form 41B.02, Schedule C with the Clerk for the Court area for which the proceedings are to be issued.
(4) The Clerk must stamp the documents showing the date of filing and must, having regard to the provisions of sub-rule (6), list the proceedings for hearing before the Court.
(5) Having recorded the place, date and time of hearing on the maintenance summons or other document beginning the proceedings and the notices, the Clerk must return all documents to the claimant or claimant’s solicitor.
(6) A notice and certificate returned under sub-rule (5) must be served as indicated in rule 12 or, where appropriate, in accordance with the provisions of Order 41A, on the respondent.
(7) Where the documents are to be served in the European territory of another Member State they must be served at least five weeks before the date of sitting of the Court before which the proceedings have been listed for hearing.
(8) Where the documents are to be served in any non-European territory of another Member State, they must be served at least six weeks before the date of sitting of the Court before which the proceedings have been listed for hearing.
(9) On receipt of the certificate of service prescribed in Article 10 and the Annex of the Service Regulation, the claimant (or claimant’s solicitor) must lodge with the Clerk the originals of:
- the maintenance summons or other document beginning the proceedings,
- (where appropriate) the notice that proceedings have been begun ( Form 41B.01, Schedule C) which was served,
- the certificate ( Form 41B.02, Schedule C) which was served, and
- the certificate of service,
at least four days before the date of the sitting of the Court.
(10) Where service has been effected by registered post or insured post the following provisions apply-
(a) the claimant or claimant's solicitor must, not earlier than ten days after the date of posting, lodge with the Clerk the relevant documents listed in sub-rule (9), together with a statutory declaration as to service of the documents posted, the certificate of posting and the advice of delivery form (when returned);
(b) the documents issued for service must be deemed to have been issued at the time at which the envelope containing the copies for service was posted;
(c) the documents must, subject to the provisions of Article 9 of the Service Regulation, be deemed to have been served at the time at which the envelope would be delivered in the ordinary course of post;
(d) the statutory declaration as to service, the certificate of posting and the advice of delivery form must, subject to the provisions of Article 9 of the Service Regulation together be deemed to be sufficient evidence of service.
14 Where the respondent is a citizen of Ireland
14. (1) When proceedings are begun in the District Court by virtue of the Maintenance Regulation against a person who is neither domiciled nor habitually resident in the State, and that person is a citizen of Ireland, the maintenance summons or other document beginning the proceedings, with necessary modifications, may be served (rather than notice thereof).
(2) Subject to sub-rule (1), the requirements of rule 13 apply in such cases and must be construed accordingly. Two notices of appearance and intention to defend must be served in each case.
15 Notice of appearance and intention to defend
15. Where, in proceedings to which rule 13 or rule 14 relates, a respondent intends to appear or to be represented at the hearing:
(a) for the purpose of defending the proceedings and/or,
(b) by virtue of Article 5 of the Maintenance Regulation for the purpose of contesting the jurisdiction of the Court,
the respondent or his or her solicitor must complete, detach and send by post to the Clerk one of the notices of appearance and intention to defend which were received so soon as to reach the Clerk not later than four days before the date fixed for the hearing, and must at the same time complete, detach and send by post to the claimant or solicitor for the claimant the other such Notice received.
16 Hearing of proceedings
16. (1) Subject to this rule, the provisions of Order 54 (Maintenance of Spouses and Children) apply to proceedings to which this Part relates.
(2) The provisions of Order 47 (Judgment in Default) and Order 47A (Judgment in Default in Non-Debt Claims) do not apply to proceedings to which this Part relates.
(3) At the hearing of proceedings referred to in rule 13 or rule 14, the Clerk must produce to the Court any communication or correspondence received from the respondent.
-where the respondent does not appear
(4) Where the respondent fails to appear and is not represented at the hearing, the Court may, if it considers it necessary to do so, require the production of the advice of delivery form confirming delivery to the respondent or to the respondent’s address of the envelope containing the copy documents for service referred to in rule 13(5).
(5) Where the respondent fails to appear and is not represented at the hearing and no notice of intention to appear has been received from the respondent, the claimant must show to the satisfaction of the Court-
(a) that each claim made in the document beginning the proceedings is one which, by virtue of the provisions of the Maintenance Regulation, the Court has jurisdiction to hear and determine,
(b) that no proceedings involving the same cause of action are pending between the parties in another Member State,
(c) that the respondent was duly served with the document beginning the proceedings or notice of that document, and
(d) that the respondent has been able to receive the document beginning the proceedings or notice of that document in sufficient time and in such a way to enable him or her to arrange for his or her defence, as required by Article 19.1(a) of the Maintenance Regulation.
(6) Where the respondent has not appeared or given notice to defend, a decision must not be given until the requirements of Article 19 of the Service Regulation (as set out in Order 41A, rule 13) have been complied with.
(7) Notwithstanding the provisions of sub-rule (6), the Court may give a decision even if no certificate of service or delivery as provided for by the Service Regulation has been received if all the conditions listed in Article 19 of the Service Regulation (as set out in Order 41A, rule 14) are fulfilled.
(8) Where the Court gives a decision against a respondent in proceedings to which this rule relates, the claimant, (or claimant’s solicitor) must immediately notify the respondent of having obtained such decision.
(9) Where a decision has been given in such proceedings against a respondent who has not appeared and that respondent wishes to apply for an extension of time for appeal from the decision, the provisions of Order 41A, rule 12 apply in every such case.
17 Enforcement of judgments abroad: provision of documents
17. (1) A party who requests the provision of the documents mentioned in Article 20 or, as the case may be, Article 28, of the Maintenance Regulation-
(a) must file with the Clerk for the Court area in which the decision was given an original and two copies of the order recording the decision and, where appropriate, an original and copy or copies of the document or documents establishing that notice of the institution of proceedings was served on the respondent, and
(b) must provide the Clerk with any additional information required by the Clerk.
(2) When the order has been signed and served in accordance with the provisions of rule 18, the Clerk must give to the party requesting them a duly authenticated copy of the order recording the decision, the extract in the form set out in Annex I or, as the case may be, Annex II, to the Maintenance Regulation and a certified true copy or copies of the other documents referred to in sub-rule 1(a), and must retain the other original documents in his or her custody.
18 Service of decision and proof of service
18. (1) Where, for the purposes of enforcing a decision under the Maintenance Regulation, it is necessary to serve on a respondent a decision given at a sitting of the District Court, service must be effected by or on behalf of the claimant and in accordance with the provisions of the Service Regulation (or, where applicable, the Hague Convention) and this Part.
(2) When service has been effected and duly certified, the certificate of service or, where appropriate, the certificate of posting, statutory declaration as to service and the advice of delivery form, must be filed with the Clerk for retention with the original judgment.
19 Application for variation or revocation by virtue of Chapter II of the Maintenance Regulation
19. (1) An application to the District Court being brought-
(a) by virtue of Chapter II of the Maintenance Regulation, by a maintenance creditor domiciled in the State against a maintenance debtor outside the State, or
(b) by virtue of Chapter II of the Maintenance Regulation, by a maintenance creditor outside the State against a maintenance debtor habitually resident or domiciled in the State
must be preceded by the issue and service on the respondent of the appropriate summons or notice of application mentioned in Order 54 or, where appropriate, notice thereof in the Form 41B.01, Schedule C, with any necessary modifications, where the respondent is outside the State, and the provisions of this Part apply to any such application.
(2) An order of the Court granting any such application must be served on a party within the State by registered post and on a party outside the State in accordance with the provisions of the Service Regulation (or, where applicable, the Hague Convention) and this Part.
20 Transmission of documents on change of address by maintenance debtor
20. (1) Where a maintenance debtor ceases to reside in the Court area in which the proceedings have been registered and commences to reside elsewhere in the State, the Clerk for the first Court area must forward to the Clerk for the Court area in which the maintenance debtor is for the time being residing the following documents-
(a) a copy of the maintenance order and a copy of the relevant enforcement order or, as the case may be, a copy of the extract in the form set out in Annex I or, as the case may be, Annex II, to the Maintenance Regulation, of the decision issued by the court of origin,
(b) a certificate of arrears in the Form 41B.07, Schedule C,
(c) a copy of the variation order (if any),
(d) any other relevant document.
(2) The Clerk receiving the documents must proceed as if the copy of the maintenance order and the copy of the enforcement order had been received from the Master of the High Court.
4 — ENFORCEMENT OF EU MAINTENANCE ORDERS UNDER THE MAINTENANCE REGULATION AND THE 2011 REGULATIONS: DECISIONS GIVEN IN A MEMBER STATE BOUND BY THE 2007 HAGUE PROTOCOL
21 Appropriate Clerk to register decisions
21. (1) Where a maintenance creditor or the Central Authority under the Maintenance Regulation wishes to seek the enforcement in the State of a decision referred to in Article 17.1 of the Maintenance Regulation, the party or the Central Authority under the Maintenance Regulation must send to the Clerk for the appropriate Court area for the district referred to in Regulation 3, 4 or 6 (as the case may be) of the 2011 Regulations (in this Part, the “appropriate Clerk”) the documents referred to in Article 20 of the Maintenance Regulation.
(2) Where the Central Authority makes a request under Regulation 17(6) of the 2011 Regulations that payments of maintenance be made directly to the maintenance creditor, the Clerk must enter the matter before the Court.
(3) On receipt of the documents, the Clerk must—
(a) register particulars of the decision concerned, and
Notice to maintenance debtor
(b) by notice in the Form 41B.05, Schedule C, inform the maintenance debtor of the registration of the decision.
(4) The notice must be sent by registered prepaid post and a copy must also be sent by registered prepaid post to the person on whose behalf registration was sought.
Appropriate Clerk to register particulars of variation etc.
(5) Where a decision referred to in sub-rule (1) has been varied or revoked by the court which made the decision and the appropriate Clerk has received the documents referred to in Article 20 of the Maintenance Regulation in respect of the variation or revocation, he or she must register particulars thereof and must by notice inform the maintenance debtor of the registration of the variation or revocation order.
(6) This rule does not limit the ability of a party who has not complied with sub-rule (1) to invoke in the State a decision recognised within the meaning of Article 17.1 of the Maintenance Regulation otherwise than for the purpose of enforcement of the decision.
22 Provisions of Orders 54, 56 and 57 apply
22. (1) The provisions of Order 54, Order 56 and Order 57 (except rules 7 and 8 of that Order) apply and may be applied in respect of any decision recognised within the meaning of Article 17.1 of the Maintenance Regulation which is a maintenance order (by virtue of the 2011 Regulations) or, as the case may be, is deemed to be an antecedent order by virtue of Regulation 8(3) of the 2011 Regulations.
(2) Without prejudice to the generality of sub-rule (1), when:
(a) a District Court Clerk receives a request in writing from a maintenance creditor or from the Central Authority under the Maintenance Regulation in relation to any sum payable by virtue of any decision recognised within the meaning of Article 17.1 of the Maintenance Regulation which is a maintenance order (by virtue of the 2011 Regulations) or, as the case may be, is deemed to be an antecedent order by virtue of Regulation 8(3) of the 2011 Regulations, but not duly paid, the Clerk may proceed in accordance with the provisions of Order 56 (Attachment of Earnings) or rules 3 and 4 (but not rules 7 and 8) of Order 57 (Proceedings under section 8 of the Enforcement of Court Orders Act 1940), or
(b) it appears to a District Court Clerk that any sums payable to him or her under any decision recognised within the meaning of Article 17.1 of the Maintenance Regulation which is a maintenance order (by virtue of the 2011 Regulations) or, as the case may be, is deemed to be an antecedent order by virtue of Regulation 8(3) of the 2011 Regulations, for transmission to the maintenance creditor are in arrears and he or she has received no request in writing under section 9(2) of the Family Law (Maintenance of Spouses and Children) Act 1976 in relation thereto, such Clerk may in his or her discretion, having considered the extent of the arrears and any other relevant matter, notify the maintenance creditor of the means of enforcement available in respect of the order.
5 — ENFORCEMENT OF EU MAINTENANCE ORDERS UNDER THE MAINTENANCE REGULATION AND THE 2011 REGULATIONS: DECISIONS GIVEN IN A MEMBER STATE NOT BOUND BY THE 2007 HAGUE PROTOCOL AND DECISIONS GIVEN IN A MEMBER STATE BOUND BY THE 2007 HAGUE PROTOCOL BUT TO WHICH ARTICLE 75.2(a) OR (b) APPLY
23 Registration of orders
23. (1) Where a copy of a maintenance order or a copy of an order varying or revoking such an order, in respect of which an enforcement order has been made, is received together with a copy of the relevant enforcement order by a District Court Clerk from the Master of the High Court or the Central Authority, the Clerk must register particulars of each document received.
(2) If the enforcement order has been made in respect of a maintenance order or an order varying a maintenance order, the Clerk must send by registered post to the maintenance creditor and the maintenance debtor a notice in the Form 41B.06, Schedule C.
(3) If the enforcement order has been made in respect of an order revoking a maintenance order, the Clerk must send by registered prepaid post to the maintenance debtor a copy of the revocation order and a statement of any amounts still due and payable under the maintenance order, which statement must contain, or be sent together with, an endorsement to the like effect as the endorsement on a notice under sub-rule (2).
24 Request from maintenance creditor
24. (1) When a District Court Clerk receives a request in writing from a maintenance creditor under Regulation 10(9) of the 2011 Regulations in relation to any sum payable by virtue of an enforceable maintenance order but not duly paid, the Clerk may proceed in accordance with the provisions of Order 56 (Attachment of Earnings) or rules 3 and 4 (but not rules 7 and 8) of Order 57 (Proceedings under section 8 of the Enforcement of Court Orders Act 1940).
(2) Where it appears to a District Court Clerk that any sums payable to him or her under an enforceable maintenance order for transmission to the maintenance creditor are in arrears and he or she has received no request in writing under the said Regulation 10(9) in relation thereto, the Clerk may in his or her discretion, having considered the extent of the arrears and any other relevant matter, notify the maintenance creditor of the means of enforcement available in respect of the order.
25 Application by virtue of Articles 2 and 5.2 of Brussels Convention or the Lugano Convention
25. (1) An application to the District Court being brought-
(a) by virtue of Article 5.2 of either the Brussels Convention or the Lugano Convention by a maintenance creditor domiciled or habitually resident in the State against a maintenance debtor domiciled in a Member State or Contracting State other than the State for the variation of a maintenance order,
(b) by virtue of Article 2 of either the Brussels Convention or the Lugano Convention by a maintenance creditor domiciled in a Member State or Contracting State other than the State against a maintenance debtor domiciled in the State for the variation of a maintenance order, or
(c) by virtue of Article 2 of either the Brussels Convention or the Lugano Convention by a maintenance debtor domiciled in a Member State or Contracting State other than the State against a maintenance creditor domiciled in the State for the variation or revocation of a maintenance order,
must be preceded by the issue and service on the respondent of a summons in the Form 41B.08, Schedule C or, where appropriate, notice of summons in the Form 41B.01, Schedule C, with any necessary modifications, where the respondent is domiciled in a Member State or Contracting State other than the State, and the provisions of this Order apply.
(2) The order of the Court granting the application must be served on a party within the State by registered post and on a party domiciled in another Member State or Contracting State in accordance with the provisions of the Service Regulation or, as appropriate, the Hague Convention (including Articles 8 to 11 thereof) and this Order.
6 — RECOVERY OF MAINTENANCE
- Maintenance Act 1994- Part II
- Reciprocating Jurisdictions
26 Enforcement Order
26. If a judgment or an instrument or settlement referred to in Articles 50 or 51 of the Brussels Convention or, as the case may be, Articles 57 or 58 of the Lugano Convention does not relate solely to maintenance, these Rules apply only to those parts that relate to maintenance, and on receipt of an enforcement order made by the High Court, in relation thereto, the Clerk must proceed as indicated in rule 27.
27 Registration under section 7 of the 1994 Act
27. Where, pursuant to section 7(1) of the 1994 Act, the Central Authority under the 1994 Act, on receipt of an application for the recognition or enforcement in the State of a maintenance order which has been transmitted by the Central Authority of a reciprocating jurisdiction, sends the application to
(a) the Master of the High Court for determination in accordance with section 7 of the 1998 Act, or
(b) the High Court for determination in accordance with Articles 31 and 32 of the Brussels Convention or, as the case may be, Articles 38 and 39 and Annex II of the Lugano Convention
and, where an enforcement order is made under sections 7(2) or 7(7) of the 1994 Act, as appropriate, and the orders are sent to the appropriate District Court Clerk, the Clerk must register the documents and proceed to enforce the enforceable maintenance order in accordance with the provisions of this Order.
7 — RECOVERY OF MAINTENANCE
-Maintenance Act 1994
-Designated Jurisdictions
-The New York Convention
28 Enforcement Order
28. Where:
(a) the Central Authority under the 1994 Act receives a request from a central authority of a designated jurisdiction on behalf of a claimant for the recovery of maintenance from a person for the time being residing in the State (the “respondent”), and
(b) the request is accompanied by an order of a Court in a Contracting State (within the meaning of the 1998 Act), and
(c) the Central Authority under the 1994 Act transmits the request pursuant to section 14(1)(a) of the 1994 Act to the Master of the High Court for determination in accordance with section 7 of the 1998 Act, and
(d) the Master, having made an enforcement order in respect of the maintenance order, sends those orders to the appropriate District Court Clerk,
the Clerk must proceed as indicated in rule 27.
29 Application for enforcement under section 14 of the 1994 Act
29. (1) Where the Central Authority under the 1994 Act receives a request referred to in rule 28 and the request is accompanied by an order made by any other Court and the Central Authority under the 1994 Act is of opinion that the order may be enforceable in the State, the Central Authority under the 1994 Act may apply pursuant to section 14(1)(b) of the 1994 Act at any sitting of the District Court for the relevant Court district (as set out in section 14(11) of the 1994 Act) for the enforcement of the order.
(2) An application mentioned in sub-rule (1) must be preceded by the issue and service of a notice, in the Form 41B.09, Schedule C on the respondent. The notice must be accompanied by a copy of the documents mentioned in section 14(6) of the 1994 Act. Service must be effected by registered post at least 21 days prior to the return date.
(3) When service has been effected, the applicant must lodge with the Clerk the original of the notice, together with a statutory declaration as to service thereof and the certificate of posting, at least four days before the return date.
Clerk to send copy orders
(4) Where, on hearing the application, the Court makes an order for the enforcement of the order of the court in the designated jurisdiction for the recovery of maintenance, copies of the order of the Court must be sent by the Clerk to the Central Authority under the 1994 Act and the respondent.
Clerk to enforce order
(5) When the Court makes such an order the Clerk must proceed to enforce the enforceable maintenance order as indicated in rule 27.
30 Enforcement procedure where not accompanied by order
30. (1) Where the Central Authority under the 1994 Act receives a request referred to in rule 27 and either:-
(a) the request is not accompanied by an order referred to in rule 27 or in rule 28, or
(b) enforcement of the order is refused,
- application to District Court
and the Central Authority under the 1994 Act intends to make an application to the District Court under section 14(1)(c)(ii) of the 1994 Act, for the recovery of maintenance in accordance with the request, the application may be made at any sitting of the Court for the relevant Court district (as set out in section 14(11) of the 1994 Act) and must be deemed (as provided in section 14(3) of that Act) to be an application for a maintenance order under section 5, 5A or 21A of the 1976 Act, as appropriate.
- on notice
(2) The application must be preceded by the issue and service of a notice, in the Form 41B.10, Schedule C on the respondent. The notice must be accompanied by copies of the documents mentioned in section 14(6) of the 1994 Act. Service must be effected by registered post at least 21 days before the return date of the application.
(3) When service has been effected, the applicant must lodge with the Clerk the original of the notice, together with the certificate of posting, at least four days prior to the return date.
(4) Where, on hearing the application, the court makes a maintenance order, the Clerk must proceed in accordance with the relevant provisions of Order 54 and this Order, and the forms therein provided (with any necessary modifications) may be used.
31 Deposition
31. Where the Court, on an application to it under section 14(1)(c) of the 1994 Act, takes evidence from the respondent on sworn deposition, the deposition must be in the Form 41B.11, Schedule C. A copy of the deposition must be sent by the Clerk to the Central Authority under the 1994 Act for transmission to the central authority of the designated jurisdiction with a request that the claimant provide an answering affidavit.
32 Transfer to facilitate videolink evidence
32. Where, at the hearing of an application under section 14(1)(c) of the 1994 Act, the Court makes an order pursuant to section 14(7) of that Act transferring the proceedings to a Court district where facilities are available for taking the evidence of the claimant or of any witness through a live television link, the Clerk must forward a copy of the order together with any other documents in his or her possession relating to the proceedings, to the appropriate District Court Clerk.
33 Request to give evidence by deposition
33. (1) A request by the claimant to give evidence on sworn deposition before the District Court under section 15(2)(a) of the 1994 Act may be made at any sitting of the Court for the Court district in which the claimant resides or carries on any profession, business or occupation.
(2) A deposition, taken under section 15(2)(a) of the 1994 Act must be in the Form 41B.12, Schedule C and must include the certificate of the Court required under section 15(2)(a) of the 1994 Act at the foot of the deposition. A certified copy of the deposition and certificate must be given by the Clerk to the claimant.
34 Certificate under section 15(3)(b) of the 1994 Act
34. The certificate to be given by the Clerk to a claimant on request, pursuant to section 15(3)(b) of the 1994 Act, must be in the Form 41B.13, Schedule C.
35 Procedure under section 19 of the 1994 Act
35. (1) Subject to the provisions of section 19(8) of the 1994 Act, where on request from the Master of the High Court, pursuant to section 19(2) of the 1994 Act, a Judge of the District Court proposes to take the evidence of a person for the purposes of proceedings in a designated jurisdiction for the recovery of maintenance, the Clerk must issue and serve notice, in the Form 41B.14, Schedule C on the person concerned, the Central Authority under the 1994 Act, the Master of the High Court and on such other persons as the Court thinks fit. The notice must be served by registered post at least 21 days prior to the date fixed for taking the evidence.
(2) Where such evidence is taken on sworn deposition, the deposition must be in the Form 41B.15, Schedule C. The Clerk must send a certified copy thereof to the Central Authority under the 1994 Act for transmission to the requesting authority.
(3) Where, as provided for in section 19(9) of the 1994 Act, the requesting authority makes a request for the taking of evidence directly to the District Court, the provisions of this rule must, with any necessary modifications, apply in relation to such a request.
(4) If it is not possible to take the evidence within four months of the receipt of the request by the Central Authority under the 1994 Act, the Judge must certify the reasons for the non-execution of the request or for the delay in executing it and the Clerk must send the same to the Central Authority under the 1994 Act for transmission to the requesting authority.
8 — MISCELLANEOUS PROVISIONS APPLICABLE TO PROCEEDINGS TO WHICH PARTS 3 TO 7 REFER
36 Currency of payments
36. An amount payable in the State under:-
(a) a decision recognised within the meaning of Article 17.1 of the Maintenance Regulation;
(b) an enforceable maintenance order by virtue of an enforcement order as provided for in the 2011 Regulations, or
(c) an order for recovery of maintenance which is made by a Court in a jurisdiction other than the State and is enforceable in the State as provided for in the 1994 Act,
must be paid in euro and if the amount is stated in the decision, enforceable maintenance order or order for recovery, as the case may be, in a currency other than euro, the payment must be made on the basis of the exchange rate prevailing on the date of the making of the enforcement order or of the order of a court in the State for the enforcement of the decision for the recovery of maintenance between that other currency and euro.
37 Clerk to give receipt for and transmit payments
37. (1) The Clerk must give, or send by ordinary post, to the maintenance debtor a receipt for each payment made by him or her under an order referred to in rule 36 and must transmit such payment forthwith by registered post, by insured post or by any other appropriate method to the person entitled to receive it, having due regard to the provisions of subsections 2(a) and 2(b) of section 4 of the 1994 Act, where applicable.
(2) Before transmitting any such payment abroad the Clerk must comply with any Exchange Control regulations for the time being in force governing the transmission of such payments and must, where necessary for that purpose, produce the order referred to in rule 36 to an authorised dealer, (i.e. a licensed bank) for inspection.
38 Venue for proceedings by creditor
38. (1) Proceedings by or on behalf of the maintenance creditor being brought in the District Court under the 2011 Regulations and the Maintenance Regulation for the enforcement of an enforceable maintenance order, may be brought, heard and determined:
(a) in case the maintenance debtor under the enforceable maintenance order concerned resides in the State or is deemed under Regulation 6 of the 2011 Regulations to be habitually resident in the Dublin Metropolitan District, at any sitting of the Court for the Court district in which the maintenance debtor habitually resides or, as the case may be, is deemed to be habitually resident, in accordance with Regulation 10(7)(a) of the 2011 Regulations;
(b) in case the maintenance debtor does not reside in the State but is in the employment either of a person residing or having a place of business in the State or of a body whose seat of management or control is in the State, at any sitting of the Court for the Court district in which that person resides or, as the case may be, the body has its seat, in accordance with Regulation 10(7)(b) of the 2011 Regulations.
(2) Proceedings being brought by the maintenance creditor by virtue of Article 2 of either the Brussels Convention or the Lugano Convention for the variation of a maintenance order made in a Contracting State other than the State may be brought, heard and determined at any sitting of the Court for the Court district in which the maintenance debtor is domiciled.
9 — MISCELLANEOUS PROVISIONS APPLICABLE TO PROCEEDINGS TO WHICH PARTS 2, 5 AND 6 REFER
39 Application for order to provide information under Regulation 19(2) of the 2011 Regulations
39. (1) An application by the Central Authority under the Maintenance Regulation to the Court under Regulation 19(2) of the 2011 Regulations for an order requiring a person or body (not being a person or body mentioned in Regulation 19(1) of the 2011 Regulations) to provide to the Central Authority under the Maintenance Regulation information as to the whereabouts, place of work, or location and extent of the assets, of a maintenance creditor or debtor (within the meaning of the 2011 Regulations) may be made at any sitting of the Court for the Court district in which the person or body to whom the order sought is to be directed resides or carries on any profession, business or occupation. Notice of the application in the Form 41B.16, Schedule C must be filed with the Clerk at least four days prior to the date of hearing.
(2) Where the Court grants the application and makes the order sought, the Central Authority must forward a copy of the order to the person or body concerned.
40 Application for order to provide information under section 20(2) of the 1994 Act
40. (1) An application by the Central Authority under the 1994 Act to the Court under section 20(2) of the 1994 Act for an order requiring a person or body (not being a person or body mentioned in section 20(1) of that Act) to provide to the Central Authority under the 1994 Act information as to the whereabouts, place of work, or location and extent of the assets of a maintenance debtor (within the meaning of the 1998 Act) or respondent may be made at any sitting of the Court for the Court district in which the person or body to whom the order sought is to be directed resides or carries on any profession, business or occupation. Notice of the application in the Form 41B.16, Schedule C must be filed with the Clerk at least four days prior to the date of hearing.
(2) Where the Court grants the application and makes the order sought, the Central Authority must forward a copy of the order to the person or body concerned.
10 — PROCEEDINGS UNDER THE HAGUE CONVENTION 1996
41 Definitions (this Part)
41. In this Part (rules 41 to 52 inclusive), unless the context otherwise requires:
the “2000 Act” means the Protection of Children (Hague Convention) Act 2000 (No. 37 of 2000);
the “Clerk” means the Clerk for the Court area in which the original application was or is to be heard and decided or in which the original order was made;
each of the expressions “another contracting state”, “Central Authority”, “contracting state”, “the Convention”, “decision”, “judgment”, and “measure” has the meaning assigned to it by section 1 of the 2000 Act.
42 Venue for proceedings under the 2000 Act or the Convention
42. Subject to section 4(2) and section 4(3) of the 2000 Act, proceedings before the Court under the 2000 Act or under the Convention by virtue of the 2000 Act may be brought, heard or determined:
(a) in the case of proceedings to which section 4(1)(b) or section 4(1)(c) of the 2000 Act applies, at any sitting of the Court for any Court area in the Court district determined in accordance with section 4(1)(b) or, as the case may be, section 4(1)(c) of the 2000 Act;
(b) in the case of any other proceedings under the 2000 Act or under the Convention by virtue of that Act, at such sitting of the Court or otherwise as is prescribed by these Rules or by statute for proceedings seeking the relief concerned.
43 Stay of proceedings
43. (1) Where the Court has jurisdiction in any proceedings to which the Convention applies, under Article 5 or 6 of the Convention but, on application of a party to the proceedings or of its own motion, considers in accordance with Article 8 of the Convention that the authority of another contracting state would be better placed in the particular case to assess the best interests of the child, the Court may stay the proceedings before it for a period specified by the Court and, as the Court considers appropriate, either:
(a) direct the Central Authority to make a request on its behalf to the proper authority of the other contracting state concerned to assume jurisdiction to take such measures of protection as it considers necessary in accordance with Article 8 of the Convention, or
(b) invite the parties to introduce such a request before the proper authority of the other contracting state concerned in accordance with Article 8 of the Convention,
and the Court may, for those purposes, limit the period of any stay to a period specified by the Court, and adjourn the matter for further consideration.
(2) The Court may discharge a stay ordered in accordance with sub-rule (1) and direct the withdrawal of any request made under paragraph (a) of that sub-rule if the authority in the other contracting state concerned does not assume jurisdiction within the period for which the Court granted the stay.
(3) The Court may discharge a stay ordered in accordance with sub-rule (1) if the parties do not, within the period specified by the court, request the authority in the other contracting state concerned to assume jurisdiction.
44 Application for court to exercise jurisdiction as appropriate court of a contracting state
44. Where the Court is asked in accordance with the Convention to exercise a jurisdiction conferred on it to take any measures by virtue of being the appropriate court of a contracting state, the document commencing the appropriate proceedings in accordance with these Rules:
(i) must additionally be entitled in the matter of the provision of the Convention in accordance with which the Court is asked to exercise jurisdiction, and
(ii) must additionally have appended a copy of any relevant request in writing made by the competent authority of another contracting state, together with a certified translation, where necessary, into Irish or English, or
(iii) must otherwise set out the basis on which the request to exercise jurisdiction is made.
45 Exchange of views
45. The Court may give such directions to the Central Authority as are appropriate to facilitate participation in any exchange of views referred to manner and by such means as the Court considers most suitable to meet the purposes of the Convention.
46 Orders under Article 11 and Article 12 of the Convention
46. (1) In any case where the Court has made an order under Article 11 of the Convention, the Court may direct the Central Authority to notify the Central Authority of another contracting state of the making of that order and may direct the first-mentioned Central Authority to make inquiries of the Central Authority of another contracting state as to whether measures referred to in paragraph 2 of Article 11 of the Convention have been taken and, if so, as to the content of those measures.
(2) In any case where the Court has been asked to make an order under Article 12 of the Convention, the Court may direct the Central Authority:
(a) to make inquiries of the Central Authority of another contracting state as to whether any measures have been taken by the authorities having jurisdiction under Articles 5 to 10 of the Convention and, if so, as to the content of those measures;
(b) to make inquiries of the Central Authority of another contracting state as to whether a decision (in respect of the measures of protection which may be required by the situation) referred to in paragraph 2 of Article 12 of the Convention has been taken and, if so, as to the content of that decision; or
(c) to notify the Central Authority of another contracting state of the making by the Court of an order under Article 12 of the Convention.
(3) For the purpose of enabling the Court to record that measures taken in accordance with Article 11 of the Convention have lapsed, the moving party in any proceedings to which sub-rule (1) applies in which measures were taken by the Court in accordance with Article 11 of the Convention must promptly notify the Clerk in writing as soon as the authorities which have jurisdiction under Articles 5 to 10 of the Convention have taken the measures required by the situation or, as the case may be, as soon as the measures required by the situation and taken by the authorities of another state are recognised by the contracting state in question.
(4) For the purpose of enabling the Court to record that measures taken in accordance with Article 12 of the Convention have lapsed, the moving party in any proceedings to which sub-rule (2) applies in which measures were taken by the Court in accordance with Article 12 of the Convention must promptly notify the Clerk in writing as soon as the authorities which have jurisdiction under Articles 5 to 10 of the Convention have taken a decision in respect of the measures of protection which may be required by the situation or, as the case may be, as soon as the measures required by the situation and taken by the authorities of another state are recognised by the contracting state in question.
(5) Where the moving party fails promptly to notify the Clerk in accordance with sub-rule (3) or sub-rule (4), the respondent or any other person sufficiently interested may make the necessary notification.
47 Adjournment to make request under Article 34
47. Without limiting any other power of the Court, the Court may adjourn proceedings under the 2000 Act for the purpose of making a request under Article 34 of the Convention.
48 Request under Article 24
48. (1) A request to the Court by an interested party (in accordance with section 3(2) of the 2000 Act) pursuant to Article 24 of the Convention to decide on the recognition or non-recognition of a measure taken in another contracting state and/or pursuant to Article 26 of the Convention that a measure be declared enforceable or registered for the purpose of enforcement in the State may at the election of the applicant, be made ex parte in the first instance subject to the prior filing with the Clerk of a notice in the Form 41B.17, Schedule C, or otherwise must be made on notice to the respondent by the issue and service on the respondent at least 4 days prior to the date fixed for the hearing of a notice in the Form 41B.17, Schedule C.
(2) An application for such recognition and/or enforcement must be grounded on an affidavit which:
(a) exhibits the judgment or decision (in this rule referred to as the “decision”) constituting or recording the measure concerned or a certified or otherwise duly authenticated copy thereof (together with a certified translation, where necessary, into Irish or English) and
(b) where necessary, states the name of the authority in the contracting state concerned and the date on which and place at which the measure was given or ordered, and
(c) explains concisely the nature and effect of the measure and
(d) sets out or verifies (or which exhibits and verifies documents which set out):
(i) the full name, address and date and place of birth (where available) of each child to whom the measure relates;
(ii) the full name, address and date and place of birth (where available) of each person who has, in relation to each such child, rights and/or obligations of a kind mentioned in Article 3 of the Convention;
(iii) where the request concerns the enforcement of a measure concerning access:
(I) the practical arrangements for exercise of rights of access (to the extent stated in the decision), including date and time, start, end and place;
(II) any specific obligations on the holders of parental responsibility;
(III) any specific obligations on the person with a right of access;
(IV) any restrictions attached to the exercise of rights of access;
(iv) the jurisdiction of the authority concerned to take the measure by reference to Chapter II of the Convention and, where relevant, any findings of fact on which the authority of the contracting state where the measure was taken based its jurisdiction;
(v) whether the child concerned was given the opportunity to be heard, or where relevant, that the measure was taken in a case of urgency;
(vi) whether any person having parental responsibility in respect of the child concerned was given the opportunity to be heard, or where relevant, that the measure was taken in a case of urgency;
(vii) where relevant, whether any measure in respect of the child concerned has been taken in a non-contracting state of the habitual residence of the child;
(viii) where relevant, that the procedure provided in Article 33 of the Convention has been complied with;
(ix) documents which establish that, according to the law of the contracting state in which it has been given, the measure is enforceable;
(x) where applicable, the grounds on which the right to request recognition or non-recognition or that a measure be declared enforceable or registered for the purpose of enforcement is vested in the party making the application.
49 Where evidence not produced
49. Where the party applying under rule 48 does not produce the evidence or documents referred to in rule 48, the Court may:
(a) adjourn the application to allow the applicant an opportunity to produce that evidence or those documents, or
(b) accept equivalent evidence or documents, including by way of oral evidence, or
(c) dispense with the production of such evidence or documents.
50 Enforcement, setting aside and discharge of order
50. (1) The order of the Court granting a request to decide on the recognition of a measure taken in another contracting state and/or that a measure be declared enforceable or registered for the purpose of enforcement in the State is, subject to sub-rule (2), enforceable for all purposes in accordance with these Rules.
(2) The Court may direct the service by such means as it directs of the order on any person who it appears to the Court may be affected by the making of the order and may stay the operation of the order for a specified period.
(3) Any application consistent with the requirements of the Convention to set aside or discharge such an order must, unless the Court otherwise directs, be preceded by the issue and service on the original applicant of a notice (or, as the case may be, on every person on whom the Court’s order has been served) in the Form 41B.18, Schedule C, and the original notice must, unless the Court otherwise allows, be filed with the Clerk at least two days before the return date of the application.
(4) An application under sub-rule (3) must, unless the Court otherwise permits, be brought:
(a) by a person served with the order in the State, within one month of such service, or
(b) by a person served with the order in another contracting state, within two months of such service.
(5) The Court may stay the enforcement of the order, on such terms as it sees fit, where such an application is made.
(6) The original applicant must apply promptly to the Court to set aside or discharge an order made in accordance with rule 48 where the measure to which that order relates (in this rule referred to as the “measure concerned”) has been set aside or discharged by the authority in the contracting state concerned, or another measure inconsistent with the measure concerned or otherwise affecting the measure concerned taken by the authority of a contracting state having jurisdiction to do so. In such a case, the application to the Court must be grounded on an affidavit:
(a) which exhibits any document containing or recording the measure setting aside or discharging the measure concerned or, as the case may be, any document containing or recording another measure inconsistent with the measure concerned or otherwise affecting the measure concerned, or a certified or otherwise duly authenticated copy of any such document, together with a certified translation thereof, where necessary, into Irish or English, and
(b) which states, where necessary, the name of the authority in the contracting state concerned and the date on which and place at which the measure concerned was set aside or discharged or another measure was taken inconsistent with the measure concerned or otherwise affecting the measure concerned, and which explains concisely the nature and effect of the same.
(7) The original applicant must apply promptly to the Court to set aside or discharge, as appropriate, an order made in accordance with sub-rule (1) where the measure concerned has been varied by the authority in the contracting state concerned. Any interested party may make a further request to the Court in relation to the variation in accordance with section 3(2) of the 2000 Act and rule 37.
(8) Where the original applicant fails to apply promptly to the Court in a case to which sub-rule (6) or sub-rule (7) applies, the original respondent or any other person sufficiently interested may make the necessary application to the Court.
(9) An application to which sub-rule (3) or (6) applies must be heard and decided on affidavit, but the Court may receive oral evidence of any matter to which the application relates, as it considers necessary.
51 Certificate under section 6 of 2000 Act
51. (1) A certificate of the Court for the purposes of section 6 of the 2000 Act (in the Form 41B.19, Schedule C) must be provided on application in writing to the Clerk for that purpose. Where appropriate, certified copies of any relevant order of the Court in the proceedings and of any document filed as proof of service in the proceedings may be appended to the certificate.
(2) Where the applicant (or an authority of another contracting state) requests further particulars of the proceedings to which the certificate relates, the Clerk, having consulted with the Judge, and subject to Article 37 of the Convention, may certify such further particulars.
52 Application of Order 58, rules 3 and 10 to 13 inclusive
52. The provisions of Order 58, rules 3 and 10 to 13 inclusive, apply with any necessary modifications to proceedings under the 2000 Act and reference to “the Act” in those rules must be read, for these purposes, as a reference to the 2000 Act.