Circuit Court - Motion for judgment in default of defence?

St1mpMeister

My solicitor is really bad at keeping me in the loop with what is happening in my current case, so I'm forced to do a lot of research myself or ask boards users!

It's expensive to change solicitors at this point so I'll just bear it as we're hopefully near the end.

Anyway, he has told me that they are going to "motion for judgment in default of defence" since the defendant hasn't supplied a defence. I responded asking if I need to discuss anything with the barrister who will be doing the motion, but got no reply.

Do I need to discuss the case with the barrister (whom I've never met), before he goes in front of the judge? Or is a motion for judgment in default of defence a very simple process where you just tell the judge "they haven't supplied a defence, so everything we've said is right" and the barrister doesn't need to know the details of the case from the person who brought it (i.e. me) ?

Robbo

It's highly unlikely that the barrister taking care of the motion for judgment in default of defence will need any further information from you, everything they need will be in the papers lodged with the court and the correspondence between your solicitor and the other side.

Whether judgment is granted or not will depend on the efforts the other side have made to file a defence and any delay they've introduced into matters. The actual substance of your case isn't strictly relevant and you won't be required to give evidence at this point.

St1mpMeister

The other side haven't put forward any defence... they will probably react once a judgement is made though and we'll get a response then.

If there's no defence, will it be a quick judgement on the day, or could it drag out depending on the judge?

Also is it correct that if a judgement is made in my favour (it's for money owing my company from another company), the other side can still just refuse to pay meaning I need to pursue further legal action, or does the judgement have any weight to it and the other side must be compelled to pay up?

Claw Hammer

If your solicitor is so bad at keeping you informed, how did you find out about the motion for judgement in default? All that would happen is that judgement would be given with damages left over for later. Most times the defendant will turn up with a dog ate my homework story and be given extra time to deliver the defence. Either way, no need for you to consult with the barrister at this stage. One thing that may emerge is whether there is an insurance company acting for the defence.

St1mpMeister

If your solicitor is so bad at keeping you informed, how did you find out about the motion for judgement in default?

He told me that much... any subsequent queries generally go unanswered.

Interestingly, he only told me after I sent an email enquiring about what was happening as I hadn't heard anything in a few months, I would have thought the solicitor would be more proactive given the court hearing is happening soon.

NUTLEY BOY

https://www.boards.ie/discussion/comment/119200118#Comment_119200118

Legal advice not allowed here - just a few notes on the general principles.

A motion for judgment in default of a defence is not always granted on the day. On the assumption that solicitors came on record for a defendant initially - and are still on record - the usual form is for the other side to turn up at the hearing of the motion and seek an enlargement of time. If the defendant fails to file the defence within the prescribed time there will be a further application for judgment in default.

If a default judgment issues the next hearing will be to assess damages.

Thereafter, the plaintiff will have to execute the judgment against the defendants.

If the defendant fails to pay what has been awarded the plaintiff will still have a few options but all will involve further action to secure payment and that includes extra costs.

At some stage it would be wise to check the solvency of the defendant company as if they are on the way to insolvency the plaintiff company will only end up becoming a creditor.

St1mpMeister

Another small query... from what I understand as the plaintiff in a Circuit Court case I need to pay for the defence's barrister (and possibly other costs), but should I win the case I can try to claim these back.

Is it the case that I can only claim back these costs if I win 100% of the claim we are putting forward?

If a deal is struck where I get 75% of the claim, then I still have to incur the defence's legal fees?

hullaballoo

Your understanding is out a bit there. You don't have to pay the other side's costs at all unless you lose and there's an order for their costs made against you.

If you win the case, normally the other side will pay the costs of your legal advisors also. There can be some costs that aren't paid by the other side even in the event of a win.

St1mpMeister

So what does this mean exactly?

"costs of the Motion to the Plaintiff to include a Cert for Counsel" was the response from the defence solicitor when they finally decided to file a defence.

I read that as "costs will be sent to the plaintiff, including the cost of the barrister"

St1mpMeister

https://www.boards.ie/discussion/comment/119238440#Comment_119238440

I spotted this on citizen's information which seems to back up what I said. If I'm awarded 75% of the claim for whatever reason, I will end up paying the legal fees for both parties?

https://www.citizensinformation.ie/en/justice/civil_law/cost_of_the_case.html

NUTLEY BOY

The general rule is that costs follow the event i.e. the successful party receives an order against the other party "party and party costs".

Party and party costs are those necessarily incurred in bringing or defending the case.

However, it is the trial judge who makes the actual decision on the issue of costs if a case goes to a full hearing.

If there is a negotiated settlement both sides are free to come to whatever arrangement they agree on costs.

John_100

what is the case about..few words will do..and why would you keep using a solicitor who is not replying to your correspondence..

how long since the civil bill was issued..i assume circuit court action..and how many defendants..

be careful not to mention any specific details about your solicitor or the defendants..you posting should be general questions..

i am having a similar issue with no defence being filed..i even issued a 14 day warning letter..still no good..after 4 months of waiting i contacted the solicitor for the defendant and said if i do not receive a reply that i will lodge a complaint for misconduct with the LSRA..

do you think this worked for me?

John_100

i see your case is about money owed from one company to another..company and contract law obviously..

if the amount is worth pursuing..and you can prove that you are owed the money..and you are willing to accept paying the costs of at least your legal team..then i see nothing wrong with using a solicitor and a barrister..

if..however..the amount is not worth it when you take your potential costs into account..then it is a risk..and maybe you should consider doing the action yourself.. providing you are confident to take on such a task..and allocate the required time..

i have had no reason to delve into company and contract law..nor will i ever hopefully..but as with any other legal issue..if you are in the right..and done nothing wrong..and can produce evidence to support the facts..then you are already off to a head start..

those in the wrong will always have an uphill battle..and will have to look for a "loophole" to get away without having to answer for the wrong that they have committed..which of course is possible..but not as common as those who are not "breaking the law"..

simple really!

St1mpMeister

simple 😁

John_100

https://www.boards.ie/discussion/comment/119321794#Comment_119321794

yes..it is that simple..but solicitors and barristers make it complicated for obvious reasons..the main things you need to note are as follows:

1. what are the "RELEVANT" facts
2. what is the applicable law
3. how does the applicable law relate to the relevant facts

it is obvious that the relevant facts dictate the course of action to follow..if any..and that is where your solicitor and barrister HAVE to advise you accordingly..if they fail to advise you correctly..then..you can complain to the LSRA for "inadequate service" or "misconduct"..and possible legal action against them for damages

in a nutshell..if you done nothing wrong (main point)..and you apply the above steps..then you should have a fairly good idea of how your case should play out..on the other hand..if you are trying to take something that is not yours..such as an "adverse possession" claim or a claim such as "Equity's Darling"..then you best make sure you have all your RELEVANT facts in order..and that you are fully aware of the applicable laws and how precedent (previous court rulings) have played out in such cases..

if you are in the dark about your case..then it appears that you do not have a good solicitor and barrister..and you should make sure all your correspondence to your solicitor is in writing..as you might need in at a future date if things go badly wrong for you..and you can show your solicitor was negligent in his dealings with you..

https://www.lsra.ie/for-consumers/

"Most times the defendant will turn up with a dog ate my homework story and be given extra time to deliver the defence."

And this is an absolute outrage. All across Ireland people are intentionally dragging out legal cases, causing great expense and much else to the people who are abiding by time limits. Judges give these people, at most, a slap on the wrist. And then they drag out the next stage, and the same circus happens again. And the same with the next.

Of course, the legal industry is making a fortune from cases being dragged out as an integral part of the existing legal system. It doesn't matter that the suffering which initiated the action continues and frequently worsens due to these delays. It doesn't matter that in family law cases children remain in homes witnessing the same abuse continue as one party intentionally drags things out to keep the status quo which suits them. And, no doubt, the same across all other areas of this legal system (the Monaghan guy on Prime Time a few months ago who was waiting for ten years due to delays spoke volumes about the inhumanity of this money-making legal circus).

The greatest reform that couid happen to the Irish legal system would be to put enforced time limits on all cases, and stop the excuses for people who are taking the piss by dragging everything out. The deferring of cases for a wide variety of excuses is yet another aspect of the inhumanity of this money-making racket that is the current Irish legal system. A fundamentally inefficient sub-sub standard excuse of a legal system that is funded by the 23% VAT we all pay on legal services, it should be remembered.

John_100

you are of course correct..but remember that in all societies there will always be the few and the many..so no sense stressing over it..

however..we are lucky that in this country there is no need to have a solicitor or a barrister..you have the right to take or defend an action yourself..and you can even have help with a McKenzie Friend..and i don't mean someone you pay other than a solicitor..i mean a genuine friend to help you

but..it is like most other things today..in that..most people don't want to do any work that involves time..dedication..and some serious thinking..

so..if you done no wrong..and some one did a wrong against you..or someone is wrongfully claiming against you..then you either decide to pay a visit to the circus as a spectator..or as a performer :)

it is far from easy to perform..but solicitor's and barristers are just like other humans..and they OFTEN get things wrong..problem is that the get paid regardless of the outcome!