Summary of Judgment by Judge Gillane

Factual and Procedural Background

The Plaintiff alleges that he suffered an accident during the course of his employment with the Defendant on or about 3 January 2020 when a ladder collapsed while he was performing a cleaning task (cleaning walls and a roof). The Plaintiff issued a personal injuries summons on 5 December 2023.

The summons and affidavit of verification were served on the Defendant at its registered office on 23 January 2024. The Plaintiff sent a warning letter to the Defendant on 5 September 2024 requesting that an appearance be entered within 28 days and indicating that a notice of motion in default would issue if no appearance was entered. A notice of motion and grounding affidavit seeking judgment in default of appearance issued on 18 February 2025. On 31 March 2025 an order for judgment in default of appearance was granted by Judge Coffey. That order was perfected on 1 April 2025 and served on the Defendant on 4 April 2025.

The Defendant's solicitors wrote to the Plaintiff's solicitors on 11 April 2025 indicating an intention to appeal and seeking consent; consent was not given. The Defendant issued a notice of motion on 14 April 2025 seeking to set aside the judgment. An affidavit dated 14 April 2024 (as stated in the affidavit) was filed in support by Attorney Loftus in which he said that the Defendant had instructed him to act, that his office did not communicate with the Plaintiff's solicitor after receiving instructions to enter an appearance, and that it was an oversight and error on his part that an appearance was not entered. An affidavit sworn by Attorney Dunleavy (a company director) on 30 May 2025 supported the position in the Loftus affidavit and confirmed the description of the oversight.

Legal Issues Presented

1. Whether an application to set aside a judgment obtained in default of appearance is governed solely by Order 13, rule 13(b) of the Rules of the Superior Courts (i.e. whether the defendant has a good defence and whether the interests of justice require leave to defend), or whether an additional requirement applies under Order 27 (i.e. that "special circumstances" existed at the time of the default that explain and justify the failure).
2. If the court accepts it is appropriate to set aside the judgment, what terms (if any) should be imposed.

Arguments of the Parties

Defendant's Arguments

• The applicable law is Order 13, rule 13(b): the court may set aside a judgment obtained in a regular manner and give leave to defend where the defendant shows on affidavit that it has a good defence and that the interests of justice require leave to defend.
• The issues for the court are: (a) whether the Defendant has shown a good defence, (b) whether the interests of justice require leave to defend, and (c) if appropriate, what terms should be imposed.
• Order 27, rule 15(2) does not alter the legal position advanced under Order 13.
• The Defendant relied on authorities (including historical authority in Evans v. Bartlam and domestic decisions such as Maher v. Dixon and Lyons) to support a wide and unfettered discretion in appropriate cases, particularly where a defence is disclosed and the failure to appear resulted from solicitor error or oversight.

Plaintiff's Arguments

• The Plaintiff submitted that Order 27 does alter the legal landscape and that a defendant seeking relief against a regularly obtained judgment must show that, at the time of the default, special circumstances existed which explain and justify the failure (per Order 27, rule 15(2)).
• The Plaintiff did not contest that, in principle, the Defendant had at least made out the elements of a good defence.
• The Plaintiff emphasised the sequence of steps taken by the Plaintiff (service, warning letter, notice of motion, hearing with no appearance) and relied on the absence of any cogent explanation for the failure to appear as a reason to refuse relief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Evans v. Bartlam [1937] AC 473	Described the discretion to set aside a default judgment as "unconditional"; Atkin L. indicated no fixed rule requiring a defendant to show a reasonable explanation, though reasons are a matter for the court's discretion.	The Defendant relied upon this authority to support the proposition that a wide discretion exists where a defendant establishes a defence; the Court reviewed it as background authority but did not treat it as displacing subsequent rule changes and authorities.
Maher v. Dixon [1995] 1 ILRM 218	Described an onus on an applicant and characterized the court's discretion under the relevant rule as "untrammelled" where an affidavit discloses a defence.	The Defendant relied on this to support a broad discretionary approach under Order 13; the Court noted the reliance but analysed later rule amendments and subsequent authorities.
Irish Banks plc v. Lyons [2004] IEHC 129	Demonstrated the court's wide discretion and the need to balance interests where solicitor mistake led to a default judgment; accepted that mistake could justify setting aside on terms balancing prejudice.	Significant emphasis was placed on Lyons by the Defendant; the Court treated it as an important example of how discretion has been exercised, but considered it alongside later rule amendments and authorities.
McGrath v. Godfrey [2016] IECA 178	Discussed the breadth of discretion under Order 13 and the necessity for the court to achieve justice between parties; referred to Lyons as guidance.	Relied upon by the Defendant as consistent with a wide discretionary approach; the Court reviewed it as part of the line of authority on discretion.
Fabri-Clad Engineering v. Stuart [2020] IECA 247	Addressed the relationship between Order 13 and Order 27; Whelan J. found that the test under Order 13 encompasses the special circumstances consideration in Order 27 and concluded that special circumstances must be identified.	The Court treated Fabri-Clad as binding and decisive on the interaction between Order 13 and Order 27 and followed Whelan J.'s conclusion that consideration of "special circumstances" is required. The Court declined the Defendant's invitation to treat those remarks as merely obiter.
EMO Oil Ltd v. Willowrock Ltd [2016] IECA 200	Example of summary summons context where solicitor error led to failure to enter appearance; discussed discretion under Order 13.	Referenced as another example in the jurisprudence on setting aside default judgments where solicitor error is present; Court noted similarity in discussion of discretion.
McGuinn v. The Commissioner of An Garda Siochana [2011] IESC 33	Considered miscommunication and the amendment to Order 27 requiring demonstration of "special circumstances" after the 2004 amendment.	Used to illustrate the impact of the 2004 amendment to Order 27 and the view, advanced in some authorities, that an applicant must demonstrate special circumstances explaining the failure.
Reidy v. Ryan [2024] IEHC 597	Held that special circumstances existing at the time of judgment must be established; analysed authorities and treated the special circumstances requirement as part of the test.	The Court considered Reidy consistent with the Plaintiff's position on the need to establish special circumstances and indicated that Reidy's approach aligns with the conclusion reached.
Murphy v. The HSE [2021] IECA 3	Discussed the concept of "special circumstances" as a higher test than "good reason" and observed that solicitor inadvertence will rarely amount to special circumstances.	The Court relied on Murphy's observations in assessing the threshold for "special circumstances" and in concluding that solicitor oversight alone, as described in the affidavits before the Court, would not typically meet the test.
De Souza v. Liffey Meats (Cavan) Unlimited Company [2023] IEHC 402	Applied Murphy and held that solicitor mistake or inadvertence will generally not amount to special circumstances under Order 27; once special circumstances are established, the court must then consider the balance of justice.	The Court adopted De Souza's analysis as persuasive and noted that De Souza's approach was approved by the Court of Appeal in Bowe v. Sherriff.
Bowe v. Sherriff [2025] IECA 14	Approved the approach in De Souza regarding special circumstances.	The Court cited Bowe as approving Ferriter J.'s approach in De Souza and treated that approval as supporting the requirement to establish special circumstances.
Cropper v. Smith (1884) 26 Ch. D. 700; Croke v. Waterford Crystal Ltd [2005] 2 I.R. 383	General dictum that courts exist to decide disputes on merits and to correct non-fraudulent mistakes where it can be done without injustice.	The Court acknowledged these dicta as general guidance favouring resolution on the merits but held that they cannot displace the specific requirements of the rules and the Court of Appeal's approach in Fabri-Clad.
Other authorities cited (selected): O'Callaghan v O'Donovan (unreported, Supreme Court 13 May 1997); O Tuama v Casey [2008] IEHC 49; O'Donovan Dairy Services Ltd v Cashin [2016] IEHC 476; Slattery v McCoy [2021] IEHC 9; Moynihan v. Dairygold Co-operative Society Ltd [2006] IEHC 318; Delaney & McGrath on Civil Procedure (4th & 5th eds).	Various principles relating to the standard for a "good defence", the "real prospect of success", the interaction of Orders 13 and 27, and commentary on the application of the rules.	The Court referenced these authorities and texts in the course of reviewing the state of the law and the consequences of rule amendments; the Court relied particularly upon the Court of Appeal authorities and recent High Court analyses in forming its conclusion.

Court's Reasoning and Analysis

The Court began by identifying the core dispute: whether the test for setting aside a judgment obtained in default of appearance is governed solely by Order 13, rule 13(b) (good defence and interests of justice) or whether the additional requirement in Order 27 (that special circumstances existed at the time of default) must also be satisfied.

The Court reviewed the relevant rules: Order 13, rule 13 (which permits the Court to set aside judgment obtained in a regular manner where a defendant shows on affidavit that it has a good defence and that the interests of justice require leave to defend) and Order 27, rule 15(2) (which permits set aside of any judgment by default if the Court is satisfied that at the time of the default special circumstances existed which explain and justify the failure).

The Court noted the 2021 and 2022 rule amendments and the historical introduction of the "special circumstances" provision in 2004. It then reviewed the authorities relied upon by the parties. The Defendant placed weight on older authorities and on the principle that the court has a wide discretion where a defence is disclosed. The Plaintiff relied on more recent decisions and the amended rules to contend that a showing of special circumstances is now required.

Crucially, the Court concluded that the Court of Appeal's decision in Fabri-Clad (Whelan J.) treated the considerations in Order 27 as encompassed in the Order 13 test and expressly identified that no special circumstances were shown in that case. The Court found Fabri-Clad's reasoning on the point binding and important. The Court also found persuasive the analyses in Reidy and De Souza (and noted De Souza's approval in Bowe v. Sherriff), which adopt a stricter approach to what will amount to "special circumstances," and which generally indicate that solicitor mistake or inadvertence will rarely satisfy the special circumstances threshold.

The Court then turned to the evidence before it. The Defendant conceded that if special circumstances were required then the evidence would not meet that test. The affidavits before the Court (Attorney Loftus and Attorney Dunleavy) stated briefly that the Defendant had instructed Attorney Loftus, that his office failed to enter an appearance due to oversight and error, and that the motion had been furnished; the affidavits contained no detailed explanation of the sequence of events or engagement with the Plaintiff's procedural steps (service, warning letter, notice of motion and a hearing in which no one appeared for the Defendant).

The Court described the explanation in the affidavits as "terse to the point of being perfunctory" and noted the absence of any real attempt to explain the failure to attend the hearing. The Court emphasized that while deciding matters on the merits is generally preferable, the rules and the Court of Appeal's approach require some satisfactory explanation and, where relevant, the demonstration of special circumstances before a regularly obtained judgment can be set aside.

On balance, and applying the authorities and rules, the Court found that the Defendant had not established the requirement of special circumstances (as interpreted in the relevant authorities) and that, even on a more relaxed Order 13 approach, the absence of any adequate explanation and the procedural history pointed against granting the relief sought.

Holding and Implications

Holding: The Defendant's application to set aside the judgment obtained in default of appearance was REFUSED.

Immediate consequences for the parties:

• The judgment obtained by the Plaintiff in default of appearance remains in place. The Defendant's application to set aside that judgment was dismissed.
• The Court found that the Defendant failed to establish the required "special circumstances" (as interpreted by the Court of Appeal and recent authorities) and did not provide an adequate explanation for the failure to enter an appearance and for the absence at the hearing.

Broader implications (as addressed in the opinion):

• The Court accepted and followed the Court of Appeal's approach in Fabri-Clad that the considerations reflected in Order 27 (the need to identify special circumstances) are encompassed within the test applicable to applications under Order 13 in the context of judgments obtained in default of appearance.
• The opinion reflects a stricter stance on procedural compliance: recent rule amendments and case law require a more demanding showing to set aside a default judgment, and solicitor error or inadvertence will, in many cases, be unlikely to constitute the necessary "special circumstances."
• The Court noted the continuing tension between the general policy of deciding disputes on their merits and the need to uphold procedural rules and deadlines; while courts will seek to decide matters on the merits where possible, such correction is subject to the requirements of the rules and the judicially articulated standards for "special circumstances."

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Note on anonymization: All personal names and the Defendant's trading name in the original opinion have been replaced with generic placeholders in accordance with the summary instructions.