The High Court has rejected a defendant’s application to set aside a default judgment in favour of Danske Bank, ruling that service of the summons counted as a proceeding under the Rules of the Superior Courts.
Mr Justice Noonan delivered the ex tempore judgment on 20 November 2018. The bank had obtained judgment in the office on 25 October 2016, in the amount of approximately €437,000, after the defendant did not enter an appearance to the summary summons.
The defendant argued that the judgment was irregular because the bank had not complied with Order 122, rule 11. That rule requires a party wishing to proceed to give one month’s notice to the other party where there has been no proceeding for a year. The defendant’s case was that service of the summons did not count as a proceeding, making the bank’s failure to give notice a ground to set aside the judgment.
The summons was issued on 12 August 2015 and, after difficulties with service, was served on the defendant’s wife in accordance with the Rules on 8 February 2016. The bank later sought judgment in default. The judge noted an issue about when the bank’s affidavit of debt had been filed but said it was not relevant to the application before him.
The judge considered authorities on what constitutes a proceeding, including decisions addressing steps taken in court proceedings and the effect of service. He said issuing a summons invokes the court’s jurisdiction, while service gives the defendant notice and starts the time for entering an appearance. Service therefore has immediate consequences for the defendant.
Mr Justice Noonan concluded that service of the summons was a proceeding within the meaning of Order 122. The defendant’s motion to set aside the judgment failed. The bank’s separate motion sought to make absolute a conditional order charging the defendant’s shares, and the judgment stated that it depended on the outcome of the set-aside application. The judgment does not record a separate ruling on that motion.