Meyler v Blimka [Trading as Bungee Fit] and Ors (Approved)

Factual and Procedural Background

The Plaintiff attended a bungee fitness class on 5 April 2018 at premises operated by Company A and Company B at the same business address in The County. The Plaintiff alleges a fall on an uneven floor mat causing a complete rupture of the Achilles tendon and a soft tissue ankle injury. The Plaintiff issued a personal injuries summons on 2 September 2020. The summons was served on all defendants on 18 June 2021 and the Plaintiff filed an affidavit of verification in the Central Office on 20 May 2021. The First Defendant entered an appearance and delivered a defence. The Second Defendant did not enter an appearance.

After issuing a 28 day warning letter on 3 May 2023, the Plaintiff issued a motion for judgment in default of appearance in October 2023. Service of that motion on the Second Defendant proved difficult. On 10 June 2024, Judge O'Donnell ordered substituted service by ordinary prepaid post to the Second Defendant's personal address and that the Plaintiff's solicitor inform the Second Defendant of the order by text or messenger app. The motion papers were served pursuant to that order on 28 June 2024 and later personally served. The affidavit of verification, although filed in the Central Office on 20 May 2021, was not personally served on the Second Defendant until 18 February 2026—after the motion for judgment in default of appearance had been issued. No appearance has been entered by the Second Defendant. The Plaintiff applied for judgment in default of appearance; the instant opinion addresses that application.

Legal Issues Presented

1. Whether proof of service of the affidavit of verification is an essential proof for obtaining judgment in default of appearance in a personal injuries action.
2. Whether such service (and filing of an affidavit of service of the verifying affidavit) must be effected and filed in the Central Office before issuing the motion for judgment in default of appearance, or whether the motion may be issued earlier with affidavit(s) of service sworn and filed subsequently but before moving.

Arguments of the Parties

Plaintiff's Arguments

• Attorney Willams for the Plaintiff submitted that, on balance, the interpretation that the verifying affidavit and its service must be in place before an application for judgment in default of appearance is made was probably correct.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Judge Egan analysed the statutory and rule framework governing verification and service in personal injuries actions.

• Statutory framework: Section 14(1) and 14(4) of the Civil Liability and Courts Act 2004 require a plaintiff in a personal injuries action to swear an affidavit verifying assertions and to lodge that affidavit in court within prescribed time limits (generally 21 days after service of the pleading).
• Rules framework: SI No. 248 of 2005 (Rules of the Superior Courts (Personal Injuries) 2005), Order 1A Rule 11(1)–(4) prescribes the form of the affidavit of verification, requires that a copy of the affidavit be delivered to the opposing party (either with the pleading or within the time prescribed by section 14), and confirms lodging in the Central Office.
• Judge Egan observed that Order 1A Rule 11(4) means the time for delivering a defence runs from delivery of the verifying affidavit; an appearance, however, is not a pleading and arguably is not a "document in reply", so timing distinctions arise between appearance and defence.
• Order 1A Rule 12(2) requires that no application for judgment or other relief in default of pleading be granted unless the moving party has verified previous pleadings on oath; the rule requires verified pleadings but does not on its face require service of the verifying affidavit.
• Order 13 Rule 8 (as substituted by S.I. 490 of 2021) permits a plaintiff to apply for judgment in default of appearance by motion upon filing in the Central Office "an affidavit or affidavits of service of the personal injuries summons and an affidavit verifying the contents of the said personal injuries summons."
• Two interpretations of Order 13 Rule 8 were considered: (a) that an affidavit of service is required only for the personal injuries summons and not for the verifying affidavit; or (b) that affidavits of service may be required for both documents. Judge Egan found both readings possible in isolation.
• Reading Order 13 Rule 8 together with Order 1A Rule 11(2)–(3) and the overall scheme leads to a holistic view: the Rules expressly oblige delivery of the verifying affidavit to the opponent within 21 days and to file the verifying affidavit in the Central Office; a motion for judgment in default of appearance logically should be brought after those obligations are satisfied. Therefore, the affidavit of service of the verifying affidavit is an essential proof to be filed in the Central Office prior to issuing the motion.
• Judge Egan concluded that there is no basis in the wording of Order 13 Rule 8 to permit issuing the motion before those filings are completed and then curing service by later affidavit sworn and filed before the court is moved; the filings must precede the issue of the motion.
• Applying that conclusion to the present facts, because the verifying affidavit was not served on the Second Defendant until well after the motion had been issued, the relief sought (judgment in default of appearance) could not be granted.

Holding and Implications

APPLICATION FOR JUDGMENT IN DEFAULT OF APPEARANCE DECLINED

Holding: The court declined the Plaintiff's application for judgment in default of appearance because the affidavit of verification had not been served and an affidavit of service of that verifying affidavit had not been filed in the Central Office prior to the issue of the motion.

Implications: The decision requires that, before applying for judgment in default of appearance in a personal injuries action under Order 13 Rule 8, a plaintiff must file in the Central Office affidavits of service both of the personal injuries summons and of the verifying affidavit. The direct effect in this case is that the Plaintiff's motion was refused; no appearance has been entered by the Second Defendant; and no order for costs was made because the Second Defendant was not a party to the motion. The opinion provides the court's view on the proper interpretation of the relevant rules; it did not set out other broader consequences beyond the direct effect on the parties in this case.