STATUTORY INSTRUMENTS

S.I. No. 410 of 2003

District Court (Small Claims)(Amendment) Rules, 2003.

PUBLISHED BY THE STATIONERY OFFICE, DUBLIN

S.I. No. 410 of 2003

District Court (Small Claims)(Amendment) Rules, 2003.

The District Court Rules Committee, in exercise of the powers conferred on them by section 91 of the Courts of Justice Act, 1924 , section 72 of the Courts of Justice Act, 1936 , section 17 of the Interpretation Act, 1937 [as applied by section 48 of the Courts (Supplemental Provisions) Act, 1961 ] and section 34 of the Courts (Supplemental Provisions) Act, 1961 , do hereby, with the concurrence of the Minister for Justice, Equality and Law Reform, make the following rules of court:-

1.         These rules may be cited as the District Court (Small Claims)(Amendment) Rules, 2003.

2.         These rules shall come into operation on the 9th day of October, 2003 and shall be read together with all other District Court rules for the time being in force.

3.         Order 53A of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) is hereby amended:

(a)        by the substitution in the definition in rule 1 of “small claim” of “€1,269.74” for “£1,000”;

(b)        by the substitution in each of rule 3 and rule 7 of “€9.00” for “£6.00”;

(c)        by the addition immediately after rule 15 thereof, of the following:

“16      Notwithstanding any other provision of these Rules, where suitable facilities for that purpose have been established by the Courts Service, and the Judge for the time being assigned to the relevant district (or in the case of the Dublin Metropolitan District, the President of the District Court) has so directed, the service of:

(i)     a Notice of Claim by the Registrar on the respondent;

(ii)    a Notice of Acceptance of Liability by the respondent on the Registrar;

(iii)   a Notice of Dispute by the respondent on the Registrar

shall be valid if transmitted in electronic form as an electronic communication to the respondent's electronic mail address (as identified on any letterhead or stationery of the respondent) or to the Registrar's electronic mail address (as identified on any website operated by the Courts Service)

provided that where the sender is not satisfied that the electronic communication was delivered to the intended recipient (by reason of any delivery status message received) or where no response has been received within a period of seven days following such transmission, then the electronic communication shall be treated as if it had never been sent and the relevant document shall be served as provided for by Rules 5, 6 and 7 of this Order within eight days following such period.

No document sent pursuant to the provisions of this rule shall be treated as invalid or ineffective by reason only of the fact that it does not include a manuscript signature.

Where a provision of this Order requires that a fee or payment be “lodged together with or forwarded together with” a document or that a document by “accompanied by” such fee, such fee or payment shall be deemed to have been validly effected or made provided that it is sent to the Registrar as soon as may be following the transmission in accordance with this rule of the document in question and accompanied by a written note quoting any reference or claim number given in respect of the small claim to which it relates. No document sent pursuant to the provisions of this rule shall be treated as invalid or ineffective by reason only of the fact that any fee associated with the lodgment or delivery of such document is recorded or receipted otherwise than by impression of a stamp on the original document.”

and the said Order 53A as so amended appears in Schedule 1 hereto.

Schedule 1

ORDER 53A

SMALL CLAIMS PROCEDURE

Definition

1.                     In these Rules-

“Consumer” means a purchaser of goods or a service of a type ordinarily supplied for private use or consumption, where the purchaser does not make the contract in the course of a business and the vendor does make the contract in the course of a business;

“Form”, unless the context otherwise requires, means a form set out in the schedule hereto, or such modification thereof as may be appropriate in any particular case;

“Small claim” means a civil proceeding instituted under these Rules

(1)    in relation to a consumer contract, by the consumer against the vendor in respect of any goods or service purchased, which is not a claim -

(a)    arising from an agreement under the Hire Purchase Acts, 1946 and 1960, or

(b)    arising from an alleged breach of a leasing agreement,

(2)    in relation to a tort, by the claimant (not being a body corporate) against the respondent in respect of minor damage caused to property belonging to the claimant but excluding personal injuries),

(3)    in relation to a tenancy, by the tenant (not being a body corporate) against the landlord in respect of the non-return of any sum paid by the tenant as rent deposit or any such sum known as “key money”

provided that in every such case the amount of the claim does not exceed the sum of €1,269.74;

“Small Claims Procedure” means the alternative method provided by these Rules of commencing and dealing with a civil proceeding in respect of a small claim;

“Small Claims Registrar” or “Registrar” means any District Court Clerk who for the time being is performing the duties and functions of a Small Claims Registrar.

Orders 39, 45 and 46 form part of the District Court Rules 1997 ( S.I. No. 93 of 1997 )

2.         Whenever it is intended to institute civil proceedings in the District Court and the claim to which the proceedings relate is a small claim as defined in the Rules, the person so intending (hereinafter called “the claimant”) may, instead of issuing an ordinary civil summons or a civil summons for a debt or liquidated money demand, make application to the appropriate Small Claims Registrar to have the claim processed through the Small Claims Procedure, and the proceedings may then be commenced and dealt with in accordance with the provisions of these Rules.

3.         An application to which rule 2 hereof relates shall be in writing in the Form 53A.1, Schedule C which, when completed, shall be lodged with the Small Claims Registrar together with a fee of €9.00. The claimant may call to the court office if assistance is needed in completing the form.

4.         The Small Claims Registrar shall, in respect of every such application received, record in a book to be known as the Small Claims Register the name and address of the claimant, the name and address of the person against whom the claim is made (hereinafter called “the respondent”), the date of application, nature of the claim and any other relevant details in relation thereto. The Registrar shall consider the application and may take such steps as he deems necessary, whether by way of interviewing the claimant or otherwise, to record the full facts of the claim.

5.         Where the claim does not come within the scope of the Small Claims Procedure, the Registrar shall so inform the claimant and shall refund the fee of €9.00. If the Registrar considers the claim to be appropriate to that Procedure, he shall serve by registered post (or, where permitted, as otherwise provided by rule 16) upon the respondent a Notice of Claim in the Form 53A.2 Schedule C (containing also Forms 53A.3 and 53A.4) together with a copy of the claim (Form 53A.1).

6.         (1) If the respondent admits the claim made against him and

(a)        agrees to pay the amount claimed, or

(b)        consents to judgment being given against him, or

(c)        wishes to pay the amount claimed by instalments,

he shall complete, detach and return (by post or by hand or, where permissible, as otherwise provided in rule 16) the Notice of Acceptance of Liability (Form 53A.3 Schedule C) to the Small Claims Registrar within 15 days before service of the Notice of Claim and copy claim upon him. Upon receipt of such Notice the Registrar shall inform the claimant accordingly.

(2) Where the respondent agrees to pay the amount claimed, he may forward to the Registrar, together with the said Form 53A.3, payment by cheque, postal order(s) or money order(s), made payable to the claimant, for the full amount claimed. Upon receipt of such payment the Registrar shall transmit same to the claimant. If the respondent's agreement to pay is conditional, (e.g. on condition that goods are returned by the claimant), the Registrar shall so inform the claimant and seek his agreement to comply with the respondent's requirement.

(3) Where the respondent consents to judgment being given against him, the Registrar shall proceed to judgment in the manner provided in rule 11 thereof.

(4) Where the respondent wishes to pay the amount claimed by instalments, the Registrar shall seek the consent of the claimant to the terms proposed by the respondent.

(5) The details of every agreement reached or settlement effected under this rule shall be recorded in the Small Claims Register.

7.         If the respondent disputes the claim or wishes to make a counterclaim, he shall complete, detach and return (by post or by hand or, where permissible, as otherwise provided in rule 16) the Notice of Dispute in the Form 53A.4 Schedule C to the Small Claims Registrar within 15 days of the service of the Notice of Claim and copy claim upon him. Where a counterclaim is made the Notice of Dispute shall be accompanied by a fee of €9.00 (or where the Notice of Dispute is sent as provided in rule 16, such fee shall be sent to the Registrar as soon as may be following transmission of the Notice of Dispute). Upon receipt of any such Notice of Dispute, the Registrar shall furnish the claimant with a copy thereof.

8.         (1) The Small Claims Registrar shall use his best endeavours to settle the dispute between the parties and in that connection may interview the parties and any other person whom either party may wish him to hear. Where a settlement is effected, particulars thereof shall be recorded in the Small Claims Register.

(2) Where the terms of an agreement or settlement (including an agreement to pay by installments) are not complied with the Registrar may, if requested so to do by the claimant party, proceed to judgment against the other party. In cases other than those where payment by installments has been agreed to, he shall proceed in accordance with the provisions of rule 11 hereof. If default is made in the payment of an installment, Order 46 rule 2 shall, with any necessary modifications, apply and Form 46.1 Schedule C prescribed therein (suitably amended) may be used in any such case.

(3) Where a decree is issued in a case to which this rule relates, the Registrar shall notify the party against whom it was issued accordingly and particulars of the request for and the issue and notification of such decree shall be recorded in the Small Claims Register.

9.         (1) Where the Small Claims Registrar fails to effect a settlement of the dispute between the parties, he shall refer the matter to the District Court for hearing.

(2) The Registrar may at any time on his own initiative and shall, if so requested by either party, refer any application or proceeding under the Small Claims Procedure to the District Court for hearing.

(3) Upon referral under this rule, the Registrar shall notify the parties of the place, date and time of hearing. He shall make himself available to assist the Court at the hearing in establishing the facts of the claim or otherwise, if requested by the Court so to do.

10.       The claimant and the respondent shall be liable for their own legal costs and witnesses' expenses (if any) incurred in respect of any claim processed through the Small Claims Procedure.

11.       (1) Where the respondent fails to return either the Notice of Acceptance or Liability (Form 53A.3) or the Notice of Dispute (Form 53A.4) to the Small Claims Registrar within 15 days of the service of the Notice of Claim and copy claim upon him and fails to contact the Registrar within that period, he shall be held to have admitted the claim.

(2) The claimant may then apply for judgment by swearing an affidavit of debt and lodging same with the Registrar together with a requisition for judgment and a Small Claims decree, and the Registrar shall proceed to judgment in accordance with the provisions of Order 45 as if the Notice of Claim and copy claim served under these Rules were a civil summons issued and served under the Order 39. The forms of affidavit and decree provided in Order 45 may, with necessary modifications, be used for that purpose. The claimant may call to the court office if assistance is needed in completing the forms.

(3) When a decree is issued under this rule, the Registrar shall notify the respondent accordingly, and particulars of such issue and notification shall be recorded in the Small Claims Register.

12.       The provisions of rule 3 of Order 45 (which relates to the review of judgments) shall, with necessary modifications, apply in the case of a decree obtained under rule 8 or rule 11 hereof and the said rule 3 shall be construed accordingly, save that in any application pursuant to that rule in relation to a decree so obtained the parties shall be liable for their own legal costs and witnesses' expenses (if any).

13.       The Court shall not award costs or witnesses' expenses to any party when determining any matter referred to it by a Small Claims Registrar under the Small Claims Procedure. A decree granted in such a case shall be a Small Claims Decree, and the forms of decree at present in use may, with necessary modifications, be used when preparing the order of the Court.

14.       (1) Every Small Claims Registrar shall have the power and is hereby authorised, to take affidavits and affirmations for the purposes of processing claims through the Small Claims Procedure and issuing decrees thereunder.

(2) No fee shall be payable by any party in respect of any affidavit or affirmation made by him before a Small Claims Registrar under this rule.

15.       The District Court (Small Claims Procedure) Rules, 1993 ( S.I. No.356 of 1993 ) and the District Court (Small Claims Procedure) Rules, 1995 ( S.I. No.377 of 1995 ) are hereby annulled.

16.       Notwithstanding any other provision of these Rules, where suitable facilities for that purpose have been established by the Courts Service, and the Judge for the time being assigned to the relevant district (or in the case of the Dublin Metropolitan District, the President of the District Court) has so directed, the service of:

(i)  a Notice of Claim by the Registrar on the respondent;

(ii) a Notice of Acceptance of Liability by the respondent on the Registrar;

(iii)a Notice of Dispute by the respondent on the Registrar

shall be valid if transmitted in electronic form as an electronic communication to the respondent's electronic mail address (as identified on any letterhead or stationery of the respondent) or to the Registrar's electronic mail address (as identified on any website operated by the Courts Service)

provided that where the sender is not satisfied that the electronic communication was delivered to the intended recipient (by reason of any delivery status message received) or where no response has been received within a period of seven days following such transmission, then the electronic communication shall be treated as if it had never been sent and the relevant document shall be served as provided for by Rules 5, 6 and 7 of this Order within eight days following such period.

No document sent pursuant to the provisions of this rule shall be treated as invalid or ineffective by reason only of the fact that it does not include a manuscript signature.

Where a provision of this Order requires that a fee or payment be “lodged together with or forwarded together with” a document or that a document by “accompanied by” such fee, such fee or payment shall be deemed to have been validly effected or made provided that it is sent to the Registrar as soon as may be following the transmission in accordance with this rule of the document in question and accompanied by a written note quoting any reference or claim number given in respect of the small claim to which it relates. No document sent pursuant to the provisions of this rule shall be treated as invalid or ineffective by reason only of the fact that any fee associated with the lodgment or delivery of such document is recorded or receipted otherwise than by impression of a stamp on the original document.

EXPLANATORY NOTE

(This note is not part of the instrument and does not purport to be a legal interpretation)

These Rules amend Order 53A of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) by the substitution of amounts in Euro and by the addition of Rule 16.