“Special circumstances” are now integral to setting aside default judgments under Order 13: Commentary on Hussien v Dunleavy Meats Unlimited Company [2025] IEHC 586

Introduction

In Hussien v Dunleavy Meats Unlimited Company [2025] IEHC 586, the High Court (Gillane J.) was asked to set aside a regularly obtained judgment in default of appearance arising from a personal injuries action. While the defendant contended that the traditional two-limb test under Order 13 (good defence plus interests of justice) governed, the plaintiff maintained that the “special circumstances” requirement in Order 27, rule 15(2) also applies, following recent procedural amendments and appellate authority.

The central legal issue was therefore whether an applicant to set aside a judgment obtained in default of appearance must, in addition to showing a good defence and that the interests of justice favor relief, also establish that, at the time of default, special circumstances existed which explained and justified the default (and which must be recited in any order granting relief). The court’s answer—rooted in the Court of Appeal’s decision in Fabri‑Clad Engineering v Stuart—confirms a significant tightening of the standard and cements a three-limb test for such applications.

Factual and Procedural Background

• Claim: The plaintiff alleged he suffered personal injuries on 3 January 2020 while cleaning walls and a roof at the defendant’s premises, when a ladder collapsed.
• Proceedings: Personal injuries summons issued 5 December 2023; served with affidavit of verification on 23 January 2024.
• Warning: Plaintiff sent a warning letter on 5 September 2024 seeking an appearance within 28 days, indicating a default motion would issue if none was entered.
• Default motion: Notice of motion for judgment in default of appearance issued 18 February 2025; no appearance was entered.
• Judgment: Coffey J. granted judgment in default on 31 March 2025; perfected 1 April 2025; served 4 April 2025.
• Post‑judgment: Defendant’s solicitors queried an “appeal” on 11 April 2025; a motion to set aside judgment issued on 14 April 2025.
• Evidence: The defendant’s solicitor (Loftus) averred the failure to enter an appearance was due to his oversight/error; the defendant (Dunleavy) rejected the accident account and confirmed reliance on the solicitor’s affidavit in explaining the default.
• Concession: Plaintiff did not contest, in principle, that the defendant could mount a substantive defence on liability; the contest was over the applicable test and whether the defendant’s explanation met it.

Summary of the Judgment

The High Court refused to set aside the judgment in default. Gillane J. held that, in light of Fabri-Clad Engineering v Stuart and subsequent authorities, applications to set aside default judgments obtained in default of appearance under Order 13 now encompass the “special circumstances” requirement in Order 27, rule 15(2). This means:

• The applicant must show (i) a good defence with a real prospect of success; (ii) that, at the time of default, special circumstances existed which explain and justify the failure; and (iii) that the interests of justice favor setting aside, subject to terms.
• On the facts, the defendant’s affidavits provided only a terse assertion of solicitor oversight, without detail or contextual explanation, which did not amount to “special circumstances.”
• Even if the court were wrong about the special circumstances requirement, the application would still fail on an interests‑of‑justice analysis given the paucity of explanation in the affidavits and the uncontroverted procedural history.

Analysis

1) The governing procedural framework

The case sits at the intersection of two rules:

• Order 13, rule 13(b) (as substituted by S.I. No. 490/2021): permits the court to set aside a regularly obtained default judgment and give leave to defend “where it is satisfied … that the defendant has a good defence … and that the interests of justice require that leave to defend should be given.”
• Order 27, rule 15(2) (as substituted/renumbered by S.I. No. 490/2021 and S.I. No. 454/2022): provides that “any judgment by default, whether under this Order or any other Order of these Rules” may be set aside only if “at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure.”

The 2004 insertion of the “special circumstances” phrase (now found in Order 27, r. 15(2)) was part of a broader reform agenda moving Irish civil procedure toward stricter compliance and expedition. The 2021–2022 amendments modernized the drafting and extended Order 27’s reach explicitly to “any judgment by default,” not just defaults of pleading.

2) Precedents and authorities discussed

• Evans v Bartlam [1937] AC 473:
  Historically emphasized a broad discretion to set aside default judgments and rejected a categorical rule requiring an explanation. Gillane J. acknowledged this lineage but held that subsequent Irish rules and appellate authority now condition that discretion.
• Maher v Dixon [1995] 1 ILRM 218:
  Spoke of an “untrammelled discretion” once a defence is shown. The court treated this as pre‑reform and not dispositive under the current rules.
• Allied Irish Banks plc v Lyons [2004] IEHC 129 (Peart J):
  Frequently cited for the court’s wide discretion and balancing of prejudice; a classic “solicitor mistake” case. It illustrates the older, more flexible approach.
• McGrath v Godfrey [2016] IECA 178 and EMO Oil Ltd v Willowrock Ltd [2016] IECA 200 (Irvine J.):
  Reiterated a broad discretion and a requirement of a defence with a “real chance of success.” Importantly, in Godfrey, Irvine J. referred to an onus on the moving party to establish “special circumstances”—a bridge to post‑2004 procedural stringency, even if not explicitly tied to Order 27 in that passage.
• Fabri‑Clad Engineering v Stuart [2020] IECA 247 (Whelan J.):
  The linchpin: the Court of Appeal held that an Order 13 application to set aside a default judgment “encompasses within it” the Order 27 special circumstances consideration. Although framed “for completeness,” Gillane J. held that the analysis is binding and cannot be ignored, particularly given that the issue was argued and addressed on appeal.
• McGuinn v Commissioner of An Garda Síochána [2011] IESC 33:
  Supreme Court authority emphasizing that, after the 2004 amendment, a party moving under Order 27 must demonstrate special circumstances explaining and justifying the failure at the time of default.
• Reidy v Ryan [2024] IEHC 597 (Brett J.):
  A High Court decision applying a three-limb test (special circumstances; good defence; interests of justice) for setting aside default judgments. Gillane J. regarded Reidy as consistent with the Fabri‑Clad read‑across.
• Murphy v HSE [2021] IECA 3 (Haughton J. on Order 8, renewal of summons):
  Defines “special circumstances” as more demanding than “good reason,” without requiring “extraordinary.” Crucially, solicitor inadvertence “will rarely” constitute special circumstances. These principles were imported by analogy into Order 27 contexts.
• De Souza v Liffey Meats (Cavan) UC [2023] IEHC 402 (Ferriter J.):
  Applies Murphy’s analysis in the Order 27 space: generally, solicitor mistake or inadvertence about a court-imposed deadline will not amount to special circumstances; to hold otherwise would undermine the post‑reform compliance culture.
• Bowe v Sherriff [2025] IECA 14:
  Approves De Souza’s approach, confirming the elevated threshold and the policy trend toward procedural enforcement.
• Cropper v Smith (1884) 26 Ch D 700, endorsed in Croke v Waterford Crystal Ltd [2005] 2 IR 383:
  Classic equity-based admonition that courts exist to decide rights rather than punish mistakes. Gillane J. accepted the principle as general guidance but held it cannot displace the express requirements of the rules as interpreted by the Court of Appeal.
• Delany & McGrath, Civil Procedure, 5th ed.:
  The treatise now expressly recognizes, in light of Fabri‑Clad, that Order 27, r. 15(2) modifies the Order 13 setting-aside jurisdiction by importing the “special circumstances” requirement into any default judgment application.

3) The Court’s legal reasoning

The reasoning proceeded in three steps:

1. Interplay of Order 13 and Order 27: The court accepted that the wording of Order 27, r. 15(2)—“any judgment by default, whether under this Order or any other Order”—captures a judgment in default of appearance under Order 13. Citing Fabri‑Clad, Gillane J. held that Order 13’s discretion now “encompasses within it” the special circumstances consideration in Order 27. This aligns with the post‑2004 amendments and the broader judicial trend toward procedural compliance.
2. Binding effect of Fabri‑Clad’s analysis: Although the relevant discussion in Fabri‑Clad was not strictly necessary to the outcome (the defence there failed), the Court of Appeal addressed the issue after submissions and in response to first‑instance reasoning. The High Court treated that analysis as authoritative and not safely disregarded.
3. Application to the evidence: Even accepting that the defendant had, in principle, a substantive defence on the merits (a point the plaintiff did not contest for the motion), the affidavits explaining the default—resting on a bare assertion of solicitor “oversight and error”—were “terse to the point of being perfunctory” and did not establish special circumstances as a matter of law or fact. Moreover, even under a more flexible Order 13/“interests of justice” analysis, the absence of a cogent explanation in the face of clear procedural steps (service of the summons, the warning letter, the default motion and hearing with no appearance) would still defeat the application.

4) Why the application failed, even on an “interests of justice” approach

The court emphasized that justice usually favors trial on the merits, but that a party seeking to undo a regularly obtained judgment must give a fair, concrete explanation of what went wrong. The defendant did not meaningfully engage with the chronology, did not address why no appearance was entered after multiple triggers, and did not seek additional time to supplement the record when queried at hearing. This made it impossible for the court to undertake the Lyons/Godfrey balancing exercise in any informed way, even setting aside the special circumstances requirement.

Impact

A. The operative test going forward: a three-limb framework

Following Hussien (and Fabri‑Clad, Reidy, De Souza, and Bowe), applicants seeking to set aside a regularly obtained default judgment—whether entered for default of appearance or pleading—must now satisfy a cumulative, three-limb test:

1. Show a good defence with a real prospect of success (not a mere assertion or shadow defence).
2. Establish that, at the time of the default, special circumstances existed which explain and justify the failure; if relief is granted, those circumstances must be recited in the order.
3. Demonstrate that the interests of justice favor setting aside, often coupled with appropriate terms (e.g., costs, timelines, security for costs, interest, payment into court, delivery of a draft defence, etc.).

B. Heightened evidential burden; solicitor oversight will rarely suffice

• General inadvertence, oversight, or office error by legal advisers—without particularized, credible explanation—will “rarely” constitute special circumstances. The affidavit should explain the who, what, when, why, and how of the default.
• A detailed chronology, documentary exhibits (emails, diary entries, internal logs), and evidence of prompt corrective action after discovery of default will be critical.
• Where the other side is blameless and has acted diligently (service, warning letter, motion, perfected order), the bar will be higher.

C. Consequences for litigation practice

• For defendants and insurers/solicitors: Implement robust docketing and escalation protocols for appearances and deadlines; train staff on default risks; maintain auditable records; and react promptly to warning letters and motions. Where a default occurs, compile a comprehensive explanatory affidavit before moving to set aside.
• For plaintiffs: Diligent compliance and clear warning letters materially improve the chances that default judgments will be upheld. Keep careful records of service and follow‑up steps.
• For courts: This decision reinforces the post‑2004 “culture of compliance.” Relief will be tightly controlled; if granted, the order should recite the special circumstances as required by Order 27, r. 15(2).

D. Practical checklist for future applications to set aside default judgments

• Defence: Identify the defence’s legal and factual basis and its realistic prospects; exhibit draft pleadings where possible.
• Special circumstances: Provide a granular, contemporaneous explanation tied to the date(s) of default (e.g., miscommunication induced by the other side, serious and documented systems failures, illness or incapacity with corroboration, or comparable fact‑specific circumstances).
• Promptness and conduct: Show prompt steps taken once the default was discovered; demonstrate overall procedural diligence.
• Prejudice and terms: Address prejudice to both sides and propose fair terms (costs, timelines, payment conditions) to balance equities.
• Compliance culture: Acknowledge and engage with the compliance imperative; do not rely on bare assertions of oversight.

Complex concepts simplified

• Default judgment: A judgment entered because a party failed to take a required step (e.g., file an appearance or a defence) within time.
• Judgment “regularly obtained”: A default judgment entered in full compliance with the court rules; it will not be set aside for procedural irregularity, so any setting‑aside relies on discretion and meeting the relevant tests.
• Order 13 (Default of Appearance): Governs the consequences of failing to enter an appearance and the court’s power to set aside such judgments.
• Order 27 (Default of Pleading): Governs failures like not delivering a defence; now expressly requires “special circumstances” to set aside any judgment by default, whether under Order 27 or any other order.
• Special circumstances: A higher threshold than “good reason.” Not “extraordinary,” but something beyond the ordinary that explains and justifies the failure at the time of default; typically requires detailed evidence and documents.
• Interests of justice: A balancing exercise weighing prejudice to both sides, delay, conduct, merits, and the integrity of procedural rules.
• “Unless order”: A court order stating that unless a specified step is taken by a deadline, judgment or another sanction will follow automatically.
• Perfected order: The formal sealed order of the court; time limits for appeals or related steps often run from perfection.
• Affidavit evidence: Sworn statements filed to support or resist motions; in this context, they must comprehensively explain the default and the defence.

Conclusion

Hussien v Dunleavy Meats consolidates and clarifies the modern Irish approach to setting aside default judgments. It confirms that the “special circumstances” requirement in Order 27, rule 15(2) now applies to judgments obtained in default of appearance under Order 13. Consequently, the operative standard is a three-limb test: (1) a good defence with real prospects; (2) special circumstances explaining and justifying the default at the time it occurred (to be recited in any order granting relief); and (3) an interests‑of‑justice balance, often with terms.

The decision also underscores a practical message: bare invocations of “solicitor oversight” will rarely suffice. Applicants must provide a specific, evidence‑backed account of the default, demonstrate prompt remedial action, and engage with the compliance culture that animates the post‑2004 reforms and recent appellate guidance. For plaintiffs, the judgment fortifies the reliability of regularly obtained default judgments where procedural steps have been diligently followed. For the system, it advances the constitutional and Convention imperatives of efficient, expeditious justice through disciplined adherence to procedural rules.