Tracey v Ireland & ors

Factual and Procedural Background

The Plaintiffs issued a plenary summons on 5 March 2008 against twenty-six Defendants alleging wrongs connected with a District Court hearing in May 2006. Service on the State’s legal office occurred in February 2009, followed by three statements of claim (28 April 2009, 13 May 2009 and 26 November 2009). On 10 June 2009 the Plaintiffs sent a 21-day warning letter under Order 27 rule 9 of the Rules of the Superior Courts (“RSC”) and, after no defence was filed, issued a first motion for judgment in default of defence returnable on 2 November 2009.

On 2 November 2009 the High Court, by consent, gave the Defendants four weeks to deliver a defence and ordered them to pay the Plaintiffs’ costs of that motion. No defence was filed within that period. Without issuing a further 21-day warning letter, the Plaintiffs issued a second motion for judgment in default of defence on 14 December 2009, returnable on 22 February 2010; it was served on 8 February 2010. All State Defendants delivered a defence on 18 January 2010—prior to service of the second motion.

On 22 February 2010 the High Court (Judge Lavan) struck out the second motion and awarded the Plaintiffs the costs thereof. The Plaintiffs appealed that order on 20 March 2010. The Supreme Court (Judge Finlay Geoghegan delivering judgment; Judges MacMenamin and O’Malley concurring) re-activated and heard the appeal.

Legal Issues Presented

1. Whether, on a second application for judgment in default of defence, Order 27 rule 8(1) of the RSC obliges the High Court to enter judgment for the Plaintiff even where the Defendant has delivered a defence before the hearing date.
2. How Order 27 rules 8 and 9 interact, particularly regarding the requirement of a 21-day warning letter and the consequences of late delivery of a defence.

Arguments of the Parties

Plaintiffs' Arguments

• On a second motion for judgment in default of defence, Order 27 rule 8(1) mandates the court to enter judgment unless “special circumstances” justify the failure to defend; delivery of a defence after the time allowed does not deprive the Plaintiff of that entitlement.
• The High Court therefore erred in striking out the motion.

State Defendants' Arguments

• Because a full defence was delivered on 18 January 2010, the Defendants were no longer in default; accordingly the court lacked jurisdiction under Order 27 rules 8 and 9 to enter judgment in default.
• The proper course was to strike out the motion, while compensating the Plaintiffs for the costs of issuing it—exactly what the High Court ordered.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Finlay Geoghegan held that the jurisdiction conferred by Order 27 rule 8(1) on a second motion is limited to situations where, at the hearing date, the defendant has not delivered a defence. The text of rule 8 focuses on a “failure” to deliver; once a defence exists, the failure no longer subsists, and the alternatives provided in the rule—entering judgment or extending time—“make no sense” when a defence has already been filed.

Rule 8 is expressly “subject to” rule 9, which applies equally to first and subsequent motions. Rule 9 allows a defendant an additional 21-day period (after a warning letter) and even a further seven-day window after service of the motion to file a defence and automatically strike out the motion upon lodging the defence and paying costs. These mechanisms demonstrate that the rules’ primary purpose is to compel delivery of a defence, not to grant automatic judgment.

The Court observed that longstanding authority (Kennane v. Mackey) recognises a defendant’s right to file a late defence before judgment is entered. Granting judgment while a substantive defence is before the court would offend principles of fair procedures embedded in constitutional justice.

Because the State Defendants delivered their defence on 18 January 2010, the High Court properly struck out the Plaintiffs’ second motion and awarded them costs. No “special circumstances” analysis was required because the premise of continued default was absent.

Holding and Implications

APPEAL DISMISSED. The Supreme Court affirmed the High Court’s order striking out the second motion for judgment in default of defence and upholding the award of costs to the Plaintiffs for that motion.

Implications: The decision clarifies that, under Order 27 rules 8 and 9 of the RSC, judgment in default of defence on a second application is available only when the defendant remains in default at the hearing. Defendants retain the ability to cure default by delivering a defence at any time before the motion is determined, after which a plaintiff’s remedy is limited to costs. The ruling reinforces procedural fairness and does not create new substantive precedent beyond interpreting the RSC provisions.