The Supreme Court has dismissed Kevin and Karen Tracey’s appeal against a High Court order striking out their second motion for judgment in default of defence. The Court held that the State defendants had delivered their defence before the motion was heard, so the High Court correctly struck it out and awarded the motion’s costs to the plaintiffs.
The proceedings arose from alleged wrongs connected with a District Court hearing in May 2006. The Traceys issued a plenary summons in person in March 2008 against 26 defendants. The State defendants were represented by the Chief State Solicitor and were the defendants served with and participating in the default judgment motion.
After statements of claim were delivered against the State defendants, the Traceys sent a 21-day warning letter in June 2009 and issued their first motion for judgment in default of defence. On 2 November 2009, the High Court made an order by consent giving the defendants four weeks to deliver a defence, or longer if agreed in writing, and requiring them to pay the plaintiffs’ costs. No defence was delivered within those four weeks.
The Traceys issued a second motion on 14 December 2009, returnable on 22 February 2010. They did not serve a further 21-day warning letter before issuing it. The defence for all 24 State defendants was delivered on 18 January 2010, before the second motion was served on them on 8 February.
The High Court struck out the motion and awarded its costs to the plaintiffs. The Traceys argued on appeal that, as this was their second application, Order 27 rule 8 required the court to grant judgment unless special circumstances justified the failure to deliver a defence. The State defendants submitted that the defence had been delivered before the hearing, leaving the High Court without jurisdiction to grant judgment in default.
In a judgment delivered by Ms Justice Finlay Geoghegan on 7 February 2018, the Supreme Court held that rule 8’s power to grant judgment on a second application applies only where the defendant has still not delivered a defence by the hearing. The Court reasoned that rules 8 and 9 are designed primarily to secure delivery of a defence, and that a defendant may deliver one before judgment even after the time allowed has passed.
The Court noted that rule 9 also applied to a second motion and required a prior warning letter. However, that issue was not the basis of the High Court’s decision or the Supreme Court’s ruling. The appeal was dismissed, leaving in place the order striking out the motion and awarding its costs to the plaintiffs.