Court Rules

PROCEDURE IN CERTAIN ACTIONS FOR POSSESSION OR SALE OF LAND AND ACTIONS FOR WELL-CHARGING RELIEF[2]

1.[3] This Order applies to any proceedings in which the plaintiff claims any of the following reliefs.

(a) recovery of possession of any land on foot of a legal mortgage or charge;

(b) an order declaring the amount due on foot of a mortgage to be well charged on land;

(c) an order under section 100(3) of the Land and Conveyancing Law Reform Act 2009 authorising the exercise by a mortgagee of a power of sale.

2. Save where otherwise expressly provided by this Order, in the event that any conflict shall arise between the provision of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order shall, in respect of any proceedings to which this Order applies, prevail.

3. [4] (1) Proceedings to which this Order applies shall be commenced by a Civil Bill in Form 2R of the Schedule of Forms. The special indorsement of claim in such Civil Bill shall state specifically and with all necessary particulars the relief claimed and the grounds thereof.

(2) In proceedings to which this Order applies, the Civil Bill shall include a statement immediately following the Special Indorsement of Claim as to whether:

(a) the proceedings are commenced in the Court under the jurisdiction conferred by section 101(5) of the Land and Conveyancing Law Reform Act 2009, and in such case, whether section 2 of the Act of 2013 applies to the proceedings, or

(b) the proceedings are commenced in the Court under the jurisdiction conferred by section 3 of the Land and Conveyancing Law Reform Act 2013.

(3) A Civil Bill to which this Order applies shall be served, together with a copy of the affidavit mentioned in rule 5, on each defendant not later than 21 days before the return date mentioned in rule 4.

4. Every Civil Bill to which this Order applies shall, upon being issued, be assigned a return date before the County Registrar, which date shall be entered in the Civil Bill.

5.[5] [6] (1) There shall be served with the Civil Bill a copy of an affidavit which shall conform to the requirements of Form 54 in the Schedule of Forms (and copies of any exhibits to that affidavit) sworn by or on behalf of the plaintiff, verifying and supporting the claim indorsed on the Civil Bill.

(2) Where the agreement for a mortgage on foot of which proceedings to which this Order relates have been commenced is or was at the material time or times one to which a code drawn up by the Central Bank of Ireland in accordance with section 117 of the Central Bank Act 1989 applies, the affidavit shall identify the code concerned.

(3) A defendant intending to defend proceedings to which this Order applies shall enter an Appearance in the Office in Form 5 in the Schedule of Forms within ten days of the service upon him of the Civil Bill and shall defend the plaintiff’s claim by filing a replying affidavit to the plaintiff’s affidavit setting out the defendant’s defence and serving a copy of that affidavit (and copies of any exhibits to that affidavit) on the plaintiff not later than four days before the return date.

6. (1) No party shall have the right in proceedings to which this Order applies to adduce any evidence otherwise than by affidavit, except—

(a) by leave of the Judge,

(b) where permitted in accordance with rule 7(4) or rule 8(1), or

(c) where the proceedings have been adjourned for plenary hearing in accordance with rule 8(2).

(2) Any party desiring to cross-examine a deponent who has sworn an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by the special leave of the Court.

7.[7] (1) On the return date of the Civil Bill (or on any adjournment from such date), the County Registrar may, in addition to any other order which the County Registrar has power to make:

(a) order service of the Civil Bill on any other person;

(b) make an order enlarging the time for entry of an appearance;

(c) give directions and fix time limits for the filing and delivery of any further affidavits by any party or parties;

(d) give any other directions for the preparation of the proceedings for trial;

(e) where an appearance has not been entered or an affidavit in accordance with rule 5(2) setting out a defence has not been filed and delivered, make an order for possession in accordance with paragraph (xxxiii) or (xxxiv) of the Second Schedule to the Courts and Courts Officers Act 1995;

(f) where the parties are sui juris, make an order to receive a consent and make the same a rule of court.

(2) Where a replying affidavit has been filed in accordance with rule 5(2) which discloses a prima facie defence, the County Registrar shall transfer the Civil Bill, when in order for hearing, to the Judge’s list on the first opportunity.

(3) For the purposes of this rule, or for the purpose of any hearing before himself, the County Registrar may extend the time for filing affidavits and give such directions and adjourn the case before himself as he thinks fit.

(4) Evidence as to failure to enter an appearance within the time permitted by these Rules may be given by production of a certificate of non-appearance issuing from the Office or otherwise as where the County Registrar permits.

8.[8] (1) If at any stage during the course of proceedings instituted by Civil Bill in accordance with this Order it appears to the Judge or the County Registrar that the determination of any issue is necessary for the proper decision or ruling as to the relief to be granted in such proceedings or as to any matter arising therein, the Judge may, or the County Registrar may on consent, settle such issue to be tried, and evidence as to any issue of fact may be given either orally or by affidavit or partly orally and partly by affidavit as the Judge in the circumstances thinks proper.

(2) The Judge may, where he considers it appropriate, adjourn a Civil Bill listed before him under this Order for plenary hearing as if the proceedings had been originated otherwise than in accordance with this Order, with such directions as to pleadings or discovery as may be appropriate.

(3) Without prejudice to the power exercisable by the Court, of its own motion or on an application by the plaintiff, to adjourn proceedings under section 101(1)(a) of the Land and Conveyancing Law Reform Act 2009 or to grant relief in accordance with section 101(1)(b) of that Act, an application by a defendant to the Court for such an adjournment or such relief, shall, unless such evidence has previously been given on affidavit in the proceedings, be grounded on an affidavit, which shall:

(a) where the defendant is seeking time to pay any arrears, including interest, due under the mortgage—

(i) set out and verify the assets and liabilities of the defendant or verify a statement of the assets and liabilities of the defendant which is exhibited to such affidavit and

(ii) set out detailed particulars of the defendant’s proposal to make such payment, or

(b) where the defendant is seeking time to remedy any other breach of obligation arising under the mortgage, set out detailed particulars of the defendant’s proposal to effect such remedy.

9. On the hearing of any Civil Bill to which this Order applies, the Judge may give judgment for the relief to which the plaintiff appears to be entitled.

10. (1) The Judge may give any special directions touching the carriage or execution of any judgment or order, or the service thereof upon persons not parties, as he thinks just.

(2) The Judge or the County Registrar may make such order as to costs as he considers just, including an order measuring any costs awarded

 

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[1] Order 5B inserted by SI 264 of 2009, effective 8 July 2009.
[2] Title amended by SI 171 of 2016, effective 19 May 2016.
[3] Order 5B rule 1 substituted by SI 346 of 2015, effective 17 August 2015.
[4] Order 5B rule 3 substituted by SI 346 of 2015, effective 17 August 2015.
[5] Order 5B rule 5 substituted by SI 346 of 2015, effective 17 August 2015.
[6] Order 5B rule 5(2) substituted by SI 358 of 2012, effective 15 October 2012.
[7] Order 5 rule 7(1)(e), 7(2) and 7(4) substituted by SI 358 of 2012, effective 15 October 2012.
[8] Order 5B rule 8(3) inserted by SI 346 of 2015, effective 17 August 2015.