2026 IECA 81

(1)following Ms. Nowak’s letter of 4th November 2024 consenting to late delivery of the defence. Relevant background

1. Before considering the grounds of appeal, it is necessary to briefly describe the unfortunate backdrop to Ms. Nowak’s claim. That is described in some detail in Ms. Nowak’s statement of claim and in the judgment of Simons J. in Nowak v. Intesa Sanpaolo Life DAC [2024] IEHC
2. In that judgment, Simons J. explained that Ms. Nowak brought a claim for unfair dismissal under the Unfair Dismissals Act 1977 against her former employer, Intesa Sanpaolo Life SAC (“Intesa”). Her claim was initially dismissed by the Employment Appeals Tribunal (“EAT”) on jurisdictional grounds on 2nd February
3. Following an appeal to the Circuit Court and a further appeal to the High Court, the EAT was found to have erred and the matter was remitted to the EAT for a second hearing which took place over three days in January and March
4. The outcome of the second hearing before the EAT was that the plaintiff’s claim for unfair dismissal was rejected on the merits. The plaintiff then invoked her statutory right of appeal to the Circuit Court.
5. As described by Ms. Nowak in her statement of claim and further particulars, the hearing of the appeal in the Circuit Court was adjourned on a number of occasions as a consequence of the COVID-19 pandemic. Ms. Nowak claims that “all of the sudden, on 8th February 2 2022, the Circuit Court Civil Office sent an email on or around 7.30 pm advising that the next day, 9th February 2022, the case will be called over”. Ms. Nowak says that she did not read the email until the following morning and that, when she did read it, she made contact with the Circuit Court office to complain. She was subsequently informed by the office on 7th April 2022 that the appeal had been struck out due to the non-appearance of the parties. On 14th June 2022, Ms. Nowak issued a motion to reinstate the appeal. A counter-motion was filed by Intesa seeking the dismissal of the appeal on the grounds that it was frivolous and vexatious. It appears from the judgment of Simons J. that, on 19th April 2023, the counter-motion was successful in the Circuit Court but the decision of that court was appealed to the High Court by Ms. Nowak. At the hearing of that appeal on 18th April 2024, counsel for Intesa indicated that it was not opposing the appeal. In para. 8 of his judgment, Simons J. observed that this concession by Intesa was well made and that none of the complaints advanced on behalf of Intesa in support of its motion justified Intesa’s claim that the appeal to the Circuit Court was vexatious or frivolous. Simons J. delivered judgment with his customary swiftness on 9th May
6. The upshot of the judgment of Simons J. was that Ms. Nowak’s appeal was successful and Simons J. remitted the matter to the Circuit Court for a full rehearing. That was almost two years after Ms. Nowak had brought her motion to reinstate her appeal to the Circuit Court and more than 5 years since Ms. Nowak lodged that appeal. It was also more than 7 years since the erroneous decision of the EAT in February
8. Against that backdrop, one can well understand why Ms. Nowak may have less patience than other litigants with the delay on the part of the defendant in delivering its defence. However, it is important to keep in mind that the defendant in these proceedings is not responsible for the actions taken by Intesa in the unfair dismissal proceedings. 3 The claim made by Ms. Nowak in these proceedings
9. Ms. Nowak’s claim in these proceedings is centred on the events of 2022 and in particular on her contention (as outlined in paras. 20 and 21 of her statement of claim) that the defendant breached an alleged duty of care to her and that the defendant was “negligent in their duties to inform the Plaintiff of the hearing date/call over date which ultimately led to the proceedings being unfairly struck out”. She also claims that the defendant “delayed the investigation of the failure on their part to issue a proper notification of the trial date or a call-over”. In this context, Ms. Nowak has highlighted an email from the Circuit Court Civil Office to Intesa’s solicitors dated 22nd June 2022 which she maintains constitutes an admission of its error. She also alleges that it evidences “gross negligence” on the part of the defendant. The email was in the following terms: “I am writing in relation to the above matter.... This case was listed for trial on the 9th February 2022 where it was struck out for non attendance of the Plaintiff. It was later discovered that the Plaintiff is a lay litigant and had not received proper notice of the trial date. Due to this error, Judge O’Connor has now allowed a Notice of Motion submitted by the Plaintiff for the appeal to be reinstated. This motion has been listed on the 27th July 2022 in Court. 22 at 11: 30 am. Judge O'Connor has instructed me to inform you of this and to notify you that in the event that you are consenting to the Appeal being reinstated under the grounds that the Plaintiff was not properly notified., you do not need to attend this court date as the Judge will simply grant the application. If you do not consent to this Motion, you will need to attend court on the day.”
10. These proceedings were commenced by Ms. Nowak on 6th September 2024 and a statement of claim was delivered on 9th September
11. Under O. 21, r. 1(b), the defendant had a 4 period of 8 weeks from the delivery of the statement of claim or from the time limited for appearance (whichever was the later) in which to deliver its defence. It did not deliver its defence within that timeframe. The parties appear to have proceeded on the basis that the 8 week period commenced on the date of delivery of the statement of claim. On that basis, the period expired on 4th November
12. On that date, Ms. Nowak wrote to the defendant’s solicitors for the purposes of O. 27, r. 10

(1)consenting to late delivery of the defence within 28 days from that date and warning that, if the defence was not delivered within that time, she would issue a motion for judgment in default of defence and would seek to rely on the letter to fix the defendant with the costs of the motion. The defendant did not deliver its defence within that period. However, on 26th November 2024, the defendant’s solicitors served a request for particulars of the statement of claim. Although their covering letter stated that the particulars sought were required in order to deliver the defence, it was accepted by the defendant in the course of the proceedings before the High Court that the service of the request was not sufficient to “stop the clock” for the purposes of the 28 day extension granted under Ms. Nowak’s letter of 4th November 2024. In my view, the defendant was plainly correct to make that concession. Under O. 19, r. 7

(3), it is clear that particulars of a statement of claim will not be ordered in advance of the delivery of a defence unless it is shown that they are necessary or desirable to enable the defendant to plead to the defence or unless there is some other “special reason” to justify the order.

1. In their letter of 26th November 2024, the defendant’s solicitors also requested Ms. Nowak to refrain from issuing a motion for judgment in default of defence. This request was rejected by Ms. Nowak in an email sent on 29th November 2024 in which she noted that the request for particulars was sent “almost on the last day of the 28 day warning period” and she added that “I believe it should have been requested [a] long time ago at least within the statutory two months timeframe …”. Under cover of the same email, Ms. Nowak enclosed her response to the defendant’s request for particulars. 5
2. There was a further exchange of correspondence between the parties on 4th December 2024 which appears to have been treated by both sides as the last day for delivery of the defence under the 28-day extension granted in Ms. Nowak’s letter of 4th November
3. In their letter, the solicitors for the defendant suggested that it was not reasonable to expect their client to deliver a defence at that point, given that the additional particulars had been received as recently as 29th November
4. They also indicated that the preparation of the defendant’s defence was “at an advanced stage” and they stated that they anticipated being in a position to deliver it shortly. In her email of the same date, Ms. Nowak rejected the defendant’s approach. She made the point that the defendant had been given ample time to raise particulars and to deliver its defence. She also maintained that, in any event, it was clear from the judgment of Simons J. in Nowak v. Intesa Sanpaolo Life DAC, that the defendant could not have any defence on the merits to her claim. As I understand it, she relied in this context on an observation made by Simons J. in para. 5 of his judgment to the effect that the Circuit Court Office had accepted that it made an error. In her email, Ms. Nowak said: “Please note that you had three months to ask for particulars and provide defence. Therefore, your position is unacceptable. It [sic] also noted that you have no defence as the error was admitted by the Courts Service and confirmed by the High Court judge Simons in his judgment delivered on 9 May 2024 in the matter Nowak v INTESA SANPAOLO VITA S.p.A … Therefore, the Notice for Motion in default of defence will be filed tomorrow as previously advised.” Ms. Nowak’s motion for judgment in default of defence
5. On the following day, Ms. Nowak filed her motion seeking judgment in default of defence and was given a return date of 17th February
6. In advance of the return date, the 6 solicitors for the defendant wrote to Ms. Nowak on 5th February 2025 enclosing their client’s defence and suggesting that the motion for judgment was “now moot”. In this context, it should be noted that there is a facility under O. 27, r. 10

(4)which permits a defendant to deliver its defence before the hearing date of such a motion. However, under the terms of that sub-rule, this facility is available solely where the following two conditions are satisfied: (

1. a)First, the defendant must deliver the defence to the plaintiff not later than 21 days after the service of the motions; and (
2. b)Second, the defendant must lodge a copy of the defence in the Central Office with a certified copy of the notice of motion not later than 10 days before the return date. That step is necessary in order to apprise the Central Office of the fact at (
3. a)above so that the relevant motion can be removed from the motion list. 11. Where both of those conditions are met by a defendant, O. 27, r. 10

(4)provides that the motion will not be listed before the judge for hearing but will, instead, be struck out and the defendant will be required to pay a sum of €750 to the plaintiff in respect of costs. The rule makes no distinction between the position of an unrepresented litigant and one who is represented by lawyers. In this case, the defence was delivered more than 21 days after Ms. Nowak’s motion was served and, in those circumstances, the sub-rule did not apply.

1. Ms. Nowak contested the defendant’s solicitors’ suggestion that her motion was moot. In her email of 5th February 2025, she reiterated that the time for delivery of the defence had expired and she again maintained that, in light of the judgment of Simons J. in her proceedings against Intesa, the defence was without merit. I will return to the latter suggestion at a later point in this judgment. At this point, I merely wish to highlight that, although Ms. Nowak was undoubtedly correct that the time for delivery of the defence had expired, there was nothing in the Rules to prevent her from agreeing to late delivery of the defence, should she have been inclined to do so. In that context, O. 122, r. 8 expressly 7 provides that the time for delivering any pleading may be enlarged by written consent, without the need for any application to the Court. In practice, many motions for judgment are resolved on that basis in advance of the hearing date, subject, where appropriate, to an order for costs in the plaintiff’s favour.
2. In the week before the return date of the motion, an affidavit was sworn on behalf of the defendant on 12th February 2025 by Ms. Lauren McCausland of Mason Hayes & Curran LLP, the solicitors for the defendant. In that affidavit, Ms. McCausland exhibited the correspondence between the parties and, in paras. 16 to 19, she stated: “
3. I say and am advised that in issuing a motion for judgment in default of defence less than a week after the replies to the Notice of Particulars were furnished, the Plaintiff did not afford the Defendant a reasonable period of time within which to finalise its Defence.
4. … as appears from the correspondence referred to above, the Defendant engaged with the Plaintiff throughout November and December and indicated that Replies to Particulars were required in order to complete the Defence and that the Defendant required a reasonable period of time within which to consider those replies prior to finalising its Defence.
5. … in addition to the Replies to Particulars, the Defendant also required time to take up the court file in order to accurately plead the facts in the Defence and this took some time.
6. … in circumstances were [sic] the Defence has now been delivered, there is no basis for the motion to proceed as sought by the Plaintiff or for the matter to proceed on an undefended basis.”
7. As will be seen from that extract, Ms. McCausland sought to rely on two matters to justify the failure of the defendant to deliver its defence. In the first place, she relied on the raising of particulars. For the reasons explained in para. 7 above, the raising of a request for 8 particulars does not entitle a defendant to defer delivering a defence unless it is shown that the particulars are required to enable the defendant to formulate its defence or unless there is some special reason why it is necessary to receive the particulars sought in advance of delivery of a defence. The defendant has not gone so far as to make the case that either of those criteria were satisfied in this case. Second, Ms. McCausland suggested that the defendant “required time to take up the court file in order to accurately plead the facts in the Defence” and that “this took some time”. Significantly, that averment is wholly lacking in detail and it does not come near to explaining why a defence was not delivered within the timeframe available under the Rules. However, it is clear that, in addition to the reasons advanced by her for the non-delivery of the defence within that timeframe, Ms. McCausland also highlighted that the defence had been provided to Ms. Nowak, albeit that this was after the time limits had expired. For reasons which I address at a later point in this judgment, I believe that it is significant that the defence had been provided in advance of the hearing of the motion.
8. In advance of the hearing of Ms. Nowak’s motion in the High Court, written submissions were exchanged between the parties. In her submissions, Ms. Nowak restated the case made by her in her statement of claim. She also advanced a number of legal arguments including a submission that the test to be applied by the court, in considering whether to allow a defendant to deliver a defence, was whether the defendant had established special circumstances to justify the order sought. Citing the decision of Simons J. in Farrell v. RAS Medical Ltd. [2024] IEHC 369, she argued that this was a condition precedent that had to be satisfied before the court could consider the balance of justice. She sought to rely on the same decision in support of an argument that the balance of justice will only weigh in favour of a defendant where the defendant can demonstrate to the court that its defence has a reasonable prospect of success. She submitted that, here, the defendant has no defence 9 on the merits such that the balance of justice required that judgment should be given in her favour.
9. In support of her application for judgment, Ms. Nowak also maintained that the defendant had failed to apply pursuant to O. 122, r. 7

(1)for an extension of time in which to deliver its defence. In that context, she sought to rely on a decision of this Court in judicial review proceedings namely Peter Nowak v. The Courts Service of Ireland [2024] IECA

1. The outcome of Ms. Nowak’s motion for judgment before the High Court
2. The motion was heard by the High Court judge on 31st March 2025 and, on the following day, she delivered a detailed and comprehensive ex tempore judgment. In her judgment, the judge carefully considered the claim made by Ms. Nowak and the correspondence between the parties. She also referred to the provisions of O. 27, r. 9 and to a number of authorities including Comcast International Holdings Inc. v. Min. for Public Expenditure [2012] IESC 50, Gokul v. Aer Lingus [2013] IEHC 432 and Bergin v. McGuinness [2022] IEHC
3. The judge explained why she did not regard the authorities cited by Ms. Nowak to be on point. She noted that Peter Nowak v. The Courts Service of Ireland was concerned with judicial review proceedings and she also noted that Farrell v. RAS Medical Ltd. was concerned with applications to set aside a judgment obtained on foot of an “unless order”. The judge expressed the view that a different test applies in such circumstances and that, in contrast, under the express terms of O. 27, r. 9

(1), the governing test in the present case was whether the court could be satisfied that it was necessary in the interests of justice to extend the time for delivery of the defence.

1. In this context, it is important to keep the terms of O. 27, r. 9 in mind. The terms of the rule are very relevant to both the decision of the High Court and Ms. Nowak’s grounds of appeal. For present purposes, the most relevant provisions of that rule lie in sub-rules 1 and
2. Sub-rule 1 makes very clear that, once the court is satisfied that the motion has been 10 duly served on the defendant, the court should give judgment for the plaintiff unless the court is satisfied, for reasons to be recited in the order, that it is necessary in the interests of justice that the time for delivery of the defence should be extended. It also makes clear that, where the court is so satisfied, sub-rule 2 “will apply”. Order 27, r. 9

(1)is in the following terms: “9.

(1)In all actions other than those in the preceding rules of this Order mentioned, if a defendant being bound to deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 10, set down the action on motion for judgment; and on the hearing of such application the Court shall, where it is satisfied that the defendant has been served with notice of the application, give to the plaintiff such judgment for such specific relief claimed in the statement of claim to which it considers the plaintiff to be entitled, unless the Court is satisfied, for reasons to be recited in the order, that it is necessary in the interests of justice that the time for delivery of the defence should be extended, in which case the provisions of sub-rule

(2)will apply” (emphasis added). 19. In turn, sub-rule 2 is in mandatory terms. By its terms, it requires the court, where it is satisfied to extend the time for delivery of the defence, to do a number of things. First, it must, to the extent possible, determine the specific relief claimed in the statement of claim to which it considers the plaintiff to be entitled. Second, the court must specify the time for late delivery of the defence (and direct that a copy be filed in the Central Office). The filing of the copy defence in the Central Office is important in cases governed by the sub-rule. It means that the Central Office will become aware that the order of the court had been complied with and that it would not be appropriate to enter judgment against the defendant. Third, the court must direct that, if the defendant fails to deliver a defence within that time frame, the plaintiff will be entitled to enter judgment (without further order) for the specific 11 relief to which the court has found the plaintiff to be entitled. Such an order is commonly described as an “unless order”. In some cases, there may be obvious difficulty for a motion judge to precisely determine the relief to which a plaintiff should be entitled. For that reason, sub-rule 3 permits the judge to direct the holding of any necessary accounts or enquiries or to direct that damages should be assessed. That sub-rule is not relevant for present purposes but sub-rule 2 is very relevant to Ms. Nowak’s appeal. It provides as follows: “

(2)Where the Court is satisfied to extend the time for delivery of the defence under sub-rule

(1), the Court shall, to the extent possible, determine the specific relief claimed in the statement of claim to which it considers the plaintiff to be entitled in the event of the failure of the defendant to deliver a defence, and shall make an order: (

1. a)extending the time for delivery of a defence for such period as the Court considers necessary in all of the circumstances and directing the filing of a copy of the defence within that period in the Central Office, and (
2. b)further providing that, in the event that the defendant fails to deliver and file the defence within that period, the plaintiff shall have liberty to enter judgment (without further order) for the specific relief claimed in the statement of claim to which the Court has found the plaintiff to be entitled as aforesaid” (emphasis added). 20. One of the principal complaints made by Ms. Nowak in the context of the appeal is that, although the High Court judge was satisfied that it was in the interests of justice to extend the time for delivery of the defence, the judge did not go on to make an order under O. 27, r. 9

(2)giving judgment to Ms. Nowak in the event that the defence was not delivered. 12 21. It is true that, in her ex tempore judgment, the judge was focused on the provisions of O. 27, r. 9

(1). The judge identified that the question she had to consider was whether it was necessary in the interests of justice that the time for delivery of the defence should be extended. She came to the conclusion that it was in the interests of justice to do so and she granted the defendant a seven-day extension of time. She did not expressly address the requirements of O. 27, r. 9

(2)but she very clearly and concisely explained her reasons for extending the time for delivery of the defence as follows: “i. The defence has been delivered. The Plaintiff has had it now since 5th February

1. ii. The delay concerned, while it was a delay, was not inordinate. iii. The issue of particulars did arise and, while not stopping the clock, it may result in efficiencies in due course to have the particulars addressed prior to the defence being filed, and it may indeed avoid issues of possible amendments of pleadings subsequently. In my view, the raising of particulars and, in particular, the replies to them were dealt with promptly on all sides. iv. There was ongoing engagement between the parties and the Plaintiff was not ignored. Her correspondence was not ignored. The Plaintiff was kept informed of progress at all times. v. This is the first motion and these proceedings are progressing with reasonable expedition, undoubtedly, assisted by the prompt responses and actions of the Plaintiff for which she is to be commended. vi. Most importantly, no prejudice of any substantial nature has been caused to the Plaintiff in this matter. However, substantial [prejudice] will be caused to the Defendant if not permitted to defend. I reference again the judgment of Hogan J. in Gokul v. Aer Lingus [2013] IEHC 432 – there is a right of access to the court 13 which is a fundamental principle of constitutional justice in Ireland, which principle avails not only Plaintiffs but Defendants also.”
2. In turn, these reasons are reflected in the terms of the order made by the High Court judge on 10th April 2025 as amended pursuant to a further order made by her on 28th April
3. It appears that the reasons did not appear in the original order dated 10th April 2025 as perfected. However, in circumstances where the reasons had been clearly identified in the judgment, it is obvious that the failure to record them in the original order was an error of the kind which falls within the ambit of O. 28, r.
4. That rule permits the court to correct mistakes in orders “arising … from any accidental slip or omission”. The High Court judge was therefore fully entitled to make the subsequent order of 28th April 2025 to correct the error in the order of 10th April 2025, as originally perfected. Ms. Nowak’s appeal
5. In her notice of appeal and written submissions, Ms. Nowak has canvassed a number of grounds of appeal. These are addressed, in turn, below. Ms. Nowak’s argument in relation to the test to be applied
6. One of the grounds vehemently pursued by Ms. Nowak is that the High Court judge here applied the wrong test. Just as she did in the High Court, Ms. Nowak has again sought to rely on the judgment of Simons J. in Farrell v. RAS Medical Ltd. in support of that argument. In my view, the High Court judge was correct to reject that argument. The decision in Farrell v. RAS Medical Ltd. was not concerned with an application under O. 27, r. 9 for judgment in default of defence. It was concerned with a different type of application which is governed by a different rule – namely an application pursuant to O. 27, r. 15

(2)to set aside a default judgment. As the judgment of Simons J. in that case makes very clear, the Rules specify a different test for such an application to that prescribed by 14 O. 27, r. 9. In the case of an application under O. 27, r. 15

(2), a default judgment may only be set aside by the court where the court is satisfied that “at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure”. As Simons J. further explained, it is also necessary in such applications for a defendant to establish that there is a defence on the merits to the relevant plaintiff’s claim that has a reasonable prospect of success. 25. In fact, even before the enactment of O. 27, r. 15

(2)in its current form, the court would not, as a matter of practice, be prepared to set aside a default judgment obtained in accordance with the Rules unless the defendant demonstrated that it had a defence on the merits. This was noted by Whelan J. in her judgment in this Court in Fabri-Clad Engineering Ltd. v. Stuart [2020] IECA 247. At para. 65, Whelan J. referred with approval to the decision to that effect by the Court of Appeal of England & Wales in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Ltd. [1986] 2 Lloyd’s Rep. 221 (“the Saudi Eagle”). The approach in the Saudi Eagle was also approved by the Supreme Court in this jurisdiction in O’Callaghan Ltd. v. O’Donovan (Supreme Court, unreported, 13th May 1997) although it should be said that the Saudi Eagle was not the first decision to impose a requirement that the relevant defendant should show that it has a defence on the merits. That requirement long pre-dates the Saudi Eagle decision. The requirement in such cases to show that a defendant has a defence on the merits with a reasonable prospect of success reflects the fact that judgment has already been obtained, in an entirely regular way, against the defendant. A court will not lightly set aside a judgment which has been obtained in accordance with the Rules. The additional requirement imposed by O. 27, r. 15

(2)to show special circumstances should be seen in the same light. 26. As the High Court judge pointed out in her judgment in this case, the test under O. 27, r. 9

(1)is different. There is no requirement to show that special circumstances exist. Instead, the sub-rule makes clear that an extension of time for delivery of a defence will not be 15 granted by the court unless the court is satisfied, for reasons to be recited in the order, that it is “necessary in the interests of justice that the time for delivery of the defence should be extended”. In my view, it is very significant that the rule dealing with applications to set aside default judgments expressly requires a defendant to show special circumstances while the rule dealing with motions for judgment does not mandate a similar requirement. If the intention had been that a similar test should apply in both instances, one would expect that this would be expressly spelt out in the terms of both rules. The fact that different language is used in both rules demonstrates that the Superior Courts Rules Committee and the Minister for Justice, in enacting these rules, did not intend that a common test should apply. In these circumstances, I believe that Ms. Nowak is in error in seeking to rely on the approach taken in cases (such as RAS Medical) which fall within the specific ambit of O. 27, r. 15

(2). Accordingly, I would reject her submission that the existence of special circumstances is a condition precedent to the exercise by the High Court of its power under O. 27, r. 9

(1)to extend the time for delivery of a defence.

1. I am reinforced in this view by a comparison between the current terms of O. 27, r. 9 and the terms of its predecessor provision namely O. 27, r. 8 as inserted by the Rules of the Superior Courts (Order 27 (Amendment) Rules 2004 (S.I. No. 63 of 2004). The previous version of the rule had prescribed a special circumstances test where a plaintiff was forced to bring a second motion for judgment in circumstances where a defendant had failed to deliver a defence within the time allowed by the High Court on the hearing of an earlier motion for judgment. It had the effect that, where a second motion for judgment was necessitated by reason of a defendant’s failure to deliver a defence pursuant to an extension of time granted by the Court on foot of an earlier motion for judgment, “the Court shall give to the plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, unless the court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure” (emphasis added). 16
2. It is highly significant that, when it came enacting the current version of the relevant rule, the Superior Court Rules Committee did not adopt a similar approach. Instead, the new rule stipulates a somewhat less stringent test in this context – namely whether it is necessary in the interests of justice to extend the time for delivery of the defence. This may reflect the fact that the new rule envisages that only one motion for judgment should now be necessary. The concept that only one motion should now be necessary is forcefully underscored by the terms of O. 27, r. 9

(2)which, as outlined in para. [19] above, requires the Court to make what is commonly called an “unless order” giving the plaintiff judgment in the event that the defence is not delivered within the extended time granted by the court. In such circumstances, it may have been thought appropriate to impose a somewhat lower bar under O. 27, r. 9

(1)than that applicable under the old rule where the “special circumstances” requirement applied solely in cases where a plaintiff was driven, by a defendant’s failure to comply with an earlier court order, to bring more than one motion for judgment. The mischief, which formerly existed, of successive motions having to be brought is now addressed by the provisions of O. 27, r. 9

(2).

1. For all of these reasons, I am of the view that the High Court judge was plainly correct to reject Ms. Nowak’s submission that the defendant, here, had to show the existence of special circumstances in order to merit an extension of time. Ms. Nowak’s attempt to rely on Peter Nowak v. The Courts Service of Ireland
2. I also believe that Ms. Nowak is similarly mistaken in her attempt to rely on the decision of this Court in Peter Nowak v. The Courts Service of Ireland. That decision was concerned with a materially different category of case and it turned on the interpretation of a different rule in materially different terms to O. 27, r.
3. It was concerned with the provisions of O. 84, r. 21

(3)which empowers the High Court to extend the period within which an application for leave to commence judicial review proceedings can be made. Order 84, rule 17 21

(1)requires that an application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose. But O. 84, r. 21

(3)empowers the High Court to extend that time subject to satisfaction of a number of specific conditions. That sub-rule provides as follows: “Notwithstanding sub-rule

(1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that: (

1. a)there is good and sufficient reason for doing so, and (
2. b)the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule

(1)either: (

1. i)were outside the control of, or (
2. ii)could not reasonably have been anticipated by the applicant for such extension.” 31. It is very clear that the test laid down by O. 84, r. 21

(3)is specific to judicial review proceedings. The sub-rule is not relevant to an application for judgment in default of defence under O. 27, r. 9

(1)in an action seeking damages for negligence and breach of an alleged duty of care. It follows that the decision in Peter Nowak v. The Courts Service of Ireland is of no assistance to Ms. Nowak in relation to the issues that arise in this case and the High Court judge was clearly correct in her approach to it. Ms. Nowak’s contention that the defendant failed to make an application under O. 122 32. Ms. Nowak has also sought to rely on Peter Nowak v. The Courts Service of Ireland in support of her argument that the defendant failed to make an application under O. 122, r. 7

(1)for an extension of time in which to deliver its defence. She has drawn attention to the way in which Costello P., in that case, highlighted that the applicant in those proceedings had made no application to extend the time for making his application for leave to 18 commence judicial review proceedings. However, it is clear from her judgment in that case that, when making that observation, Costello P. did not have O. 122, r. 7

(1)in mind. Her observation was made in the specific context of O. 84, r. 21

(3)which is solely concerned with judicial review proceedings. 33. Where a motion for judgment in default of defence is brought under O. 27, r. 9, there is no requirement that the defendant must bring a separate application under O. 122, r. 7

(1)for an extension of the time for delivery of its defence. This follows from the express terms of O. 27, r. 9

(1)which, as I have previously mentioned, explicitly empowers the Court on the hearing of such a motion to extend the time for delivery of the defence where it is satisfied, for reasons which are stated in the order, that it is necessary in the interests of justice that the time for delivery of the defence should be extended. Thus, where a motion for judgment in default of defence comes on for hearing before the High Court, O. 122, r. 7

(1)has no application. Instead, the court’s power to extend the time derives from the very rule under which Ms. Nowak brought her motion seeking judgment in default of defence. An order extending the time for delivery of the defence is one of the outcomes expressly mandated by O. 27, r. 9

(1)where a plaintiff seeks an judgment under the sub-rule. Moreover, it is clear from para. 20 of Ms. McCausland’s affidavit that the defendant, here, expressly requested the High Court for an order extending the time for delivery of its defence. Ms. Nowak’s argument that the defendant did not comply with O. 27, r. 10

(4)34. Ms. Nowak also makes the case that the defendant did not comply with the terms of O. 27, r. 10

(4)which, subject to compliance with the conditions described in paras. [10] to [11] above, allows a defendant to deliver a defence in advance of the hearing of a motion seeking judgment in default of defence. I cannot see the relevance of that sub-rule to the issues that arise on this appeal. The sub-rule was not invoked by the defendant in advance of the hearing of Ms. Nowak’s motion seeking judgment. Moreover, the High Court judge 19 did not refer to or rely on the sub-rule in any way in support of her decision to extend the time for the delivery of the defence. It is unsurprising that she did not do so in circumstances where there is nothing to suggest that the defendant had satisfied the conditions set out in the sub-rule. That said, it would not have been out of place for the judge, in considering the extent of the defendant’s delay, to have drawn attention to the failure of the defendant to deliver the defence within the 21 day period permitted under the sub-rule. The practical effect of the sub-rule is to afford a defendant an additional period of 21 days after service of a motion under O. 27, r. 9

(1)for delivery of is defence. This is in addition to the 8-week period available under O. 21, r. 1(b) and the further 28 day period which arises as a consequence of O. 27, r. 10

(1). Leaving aside any periods taken by a plaintiff to serve a warning letter under O. 27, r. 10

(1)and the time taken to issue and serve a motion under O. 27, r. 9

(1), the combined effect of Orders 21 and 27 is to give a defendant a period of 15 weeks in which to deliver a defence. The fact that a defendant has not delivered a defence within that relatively lengthy period is a matter that can legitimately be taken into account by the High Court when considering whether it is necessary in the interests of justice to extend the time for delivery of a defence.

1. In this context, it is important to recall that, subject to some further refinements made to Order 27 by the Rules of the Superior Courts (Procedure on Default) 2022 (S.I. 454 of 2022), the current version of Orders 21 and 27 came into force on 13th November 2021 pursuant to Rules of the Superior Courts (Procedure on Default) 2021 (S.I. 490 of 2021). For this purpose, I will refer to the current version of the rules as “the Amended Rules”. This is intended to cover the amendments made in both 2021 and
2. Prior to the enactment of the Amended Rules, a defendant was required to deliver its defence within 28 days from the date of delivery of the plaintiff’s statement of claim. The Amended Rules doubled that period and also doubled the period in which a plaintiff is required to deliver a statement of claim. Those amendments to the Rules were plainly not intended to 20 encourage delay. On the contrary, the extended periods for delivery of pleadings should be seen in the context of the new requirement prescribed by O. 27, r. 9

(2)under which the court is required, where it decides to extend the time for delivery of a defence, to give judgment for the plaintiff in the event that the defence is not delivered within that extended time. Ms. Nowak’s complaint that the judge did not comply with the requirements of O. 27, r. 9

(2)36. One of the main grounds advanced by Ms. Nowak in her appeal is that the High Court judge did not comply with the requirements of O. 27, r. 9

(2). As noted above, that sub-rule expressly imposes an obligation on the court, in cases where an extension of time for delivery of a defence is granted, to proceed to determine the relief to which the plaintiff is entitled on foot of the statement of claim and to grant judgment for that relief in the event that the defendant fails to deliver its defence within the extended period allowed by the court for that purpose. Ms. Nowak also complained that the High Court judge had failed, contrary to the provisions of the sub-rule, to direct that a copy of the defence should be filed in the Central Office. In response, counsel for the defendant submitted that, in the particular circumstances of this case, an order of the kind envisaged by the subrule would serve no useful purpose. Counsel stressed that, at the time Ms. Nowak’s motion came on for hearing in the High Court, the defence was already in existence. A copy of it had been provided to Ms. Nowak on 5th February

1. While that was outside the time allowed for that purpose under the Rules, the key point was the fact that it existed and, accordingly, this was not a case where there was a doubt as to whether the defendant would be able to deliver the defence within the 7-day extension granted by the High Court judge.
2. Before going further, it should be noted that, at the hearing of the appeal, Ms. Nowak was unable to say that this was a point that she pressed before the High Court judge. In those circumstances, the Court would be entitled to refuse to entertain this ground of appeal. As 21 a matter of principle, it is not open to an appellant to suggest, on appeal, that a judge of the High Court was in error on an issue which the appellant chose not to ventilate before that judge. However, in circumstances where the matter was fully argued by both sides and where no objection was taken by the defendant in its Respondent’s Notice, I propose to address the issue.
3. In my view, it is clear that O. 27, r. 9

(1)must be read together with O. 27, r. 9

(2). It is evident from the language and structure of both sub-rules that, where the court, on the hearing of a motion for judgment in default of defence, is persuaded under O. 27, r. 9

(1)that it is necessary in the interests of justice to extend time for delivery of a defence, the court is required to go on to take the steps prescribed by O. 27, r. 9

(2). This follows from the use of the words “in which case the provisions of sub-rule

(2)will apply” which follow the words “it is necessary in the interests of justice that the time for delivery of the defence should be extended” in O. 27, r. 9

(1). In turn, this is reinforced by the opening words of O. 27, r. 9

(2), namely “Where the Court is satisfied to extend the time for delivery of the defence under sub-rule

(1), the Court shall, to the extent possible, determine the specific relief … to which it considers the plaintiff to be entitled …”. There is nothing in the language of either sub-rule to suggest that the court, on the hearing of such a motion, is given any power or discretion to depart from the requirements of O. 27, r. 9

(2).

1. I should make clear that the considerations outlined in para. 38 above apply only where there is an absence of consent to the late delivery of a defence. The O. 27, r. 9 requirements do not affect the ability of the court to make orders extending the time for delivery of a defence where the parties agree to such an extension without a hearing. Nor do these requirements affect the power of the court to adjourn the hearing of a motion under O. 27, r. 9, to see whether a defence can be furnished within the duration of the adjournment period although it is important, having regard to the imperative to discourage delay and to 22 improve the efficiency of the motion lists, to ensure that adjournments are kept to a minimum.
2. For the reasons discussed in para. 38 above, there might, at first sight, appear to be some merit in the point made by Ms. Nowak in this case that the High Court judge did not comply with the obligation imposed by O. 27, r. 9

(2). However, it seems to me that, in the particular circumstances of this case, the complaint made by Ms. Nowak is, to borrow a phrase from Kelly J. (as he then was) in Wicklow County Council v. Fenton 2002 WJSC-HC 7312, at p. 3, both unreal and academic. While, technically, there may have been an obligation to take the steps envisaged by O. 27, r. 9

(2), any such exercise, on the facts of this case, would have been highly formulaic and purposeless. This is not a case where the defence had yet to be drafted. As the High Court judge emphasised in her judgment, the defence was already in existence in final form at the time of the High Court hearing and had been provided to Ms. Nowak in advance of the hearing. There was, accordingly, no prospect that, in the aftermath of the hearing, there would be a default in delivery of the defence such as to trigger the entry of judgment as envisaged by O. 27, r. 9

(2). The usual basis for the in terrorem imposition of an “unless order” of that kind was also absent. Order 27, r. 9

(2)is intended to act as a powerful incentive to a defendant to deliver its defence within the time fixed by the court and to ensure that, in the event of a failure to deliver a defence within that time, a plaintiff does not have to bring a further application before the court. The sub-rule represents a decisive intervention by the Superior Courts Rules Committee to address the problem that previously existed where there were persistent and repeated failures by defendants to deliver their defences and where a plaintiff often had to bring several motions for judgment before a defence was eventually extracted from a defendant. As noted in para. 35 above, the Amended Rules addressed the issue in two ways, first, by significantly extending the time for delivery of pleadings and, second, by changing the 23 approach to be adopted where a plaintiff seeks judgment in cases where a defendant fails to deliver its defence within the extended period now available. 41. Thus, although the defendant here was plainly in default in not delivering its defence within the extended timeframe discussed in para. 35 above, the mischief at which O. 27, r. 9

(2)is directed did not exist in this case. The sub-rule is directed at circumstances where the defence is not available at the time of the hearing of a motion for judgment under O. 27, r. 9

(1). It is not directed at cases such as this where a defence has been finalised and provided to the plaintiff in advance of the hearing of a motion for judgment. That does not mean that a defendant who produces a defence before or at the hearing of such a motion has any guarantee that the court will extend time for delivery of that defence. The hurdle imposed by O. 27, r. 9

(1)still has to be faced by a defendant who has failed to deliver a defence within the timeframe envisaged by the Rules. Unless the court is satisfied that it is necessary in the interests of justice to extend time for delivery of the defence, the plaintiff will be entitled to judgment. Where the plaintiff does not consent to late delivery of the defence, the defendant bears the burden of satisfying the court that justice demands that the time for delivery should be extended. For that reason, it will usually be essential, in such cases, that the defendant should place evidence before the court to demonstrate why it is necessary in the interests of justice to extend time for delivery of the defence. While there may be cases where it is obvious that the test is satisfied, the reality is that, in most cases, an affidavit will be necessary. The danger of failing to address the matter on affidavit can be seen in the decision of this Court in a case decided under the 2004 version of the rule, namely McNamara v. Sunday Newspapers Ltd. [2016] IECA

1. As noted earlier, under the 2004 version of the rule, a defendant facing a second motion for judgment had to show special circumstances why judgment should not be granted. The defendant failed to deliver an affidavit and the High Court gave judgment against it. That decision was upheld on appeal. In para. 3 of his judgment in that case, Peart J. emphasised that the onus 24 was on the defendant to show that the test was satisfied and, in para. 26, he noted that, notwithstanding the delivery of an affidavit at the appeal stage, the defendants had failed to place sufficient evidence before the Court to bring themselves within the ambit of the rule.
2. In light of the considerations outlined in paras. 40 to 41 above, I do not believe that there is any merit in Ms. Nowak’s complaint that the High Court judge failed to consider or apply the requirements of O. 27, r. 9

(2). However, a significant issue remains as to whether the High Court judge was correct to conclude that it was necessary in the interests of justice that the time for delivery of the defence should be extended. Was it necessary in the interests of justice to extend the time for delivery of the defence? 43. In my view, this is the central issue in this appeal. In the course of the hearing of the appeal, Ms. Nowak argued that the reasons advanced by the judge for her decision to extend time are insufficient to satisfy the test under O. 27, r. 9

(1). In that context, the following matters were raised: (

1. a)Ms. Nowak alleged that the judge wrongly failed to find that the defendant had no defence to her claim; (
2. b)Ms. Nowak contended that the judge put misplaced emphasis on the decision of the Supreme Court in Comcast International Holdings Inc. v. Minister for Public Enterprise [2012] IESC 50 and the decision of Hogan J. in Gokul v. Aer Lingus [2013] IEHC 432; (
3. c)She maintained that the defendant did not comply with the Rules and did not explain the reasons or special circumstances behind the delay (
4. d)In circumstances where the date of delivery of the defence was “well outside” the time permitted under the Rules, Ms. Nowak claimed that the judge should not have had any regard to the fact that it was purportedly delivered on 5th February 2025; 25 (
5. e)She maintained that the delay in delivering the defence was inordinate; (
6. f)Ms. Nowak highlighted that the request for particulars was not raised until after the 8week period for the delivery of the defence had already expired. In those circumstances, she contended that the judge was wrong to find that the particulars were raised promptly; (
7. g)Ms. Nowak claimed that the judge had no basis to find that there was ongoing engagement between the parties and she argued that The judge unfairly attached too much weight to the submissions made on behalf of the defendant; (
8. h)Finally, Ms. Nowak maintained that the judge was wrong to find that there was no prejudice to her if the time for delivery of the defence was extended. However, her notice of appeal provides no detail of any such prejudice. The most that can be said is that the prosecution of her action against the defendant has been delayed by a number of weeks. 44. I now deal in turn with each of Ms. Nowak’s contentions. The allegation that the defendant has no defence to the claim 45. Ms. Nowak placed particular emphasis on her contention that the defendant has no defence to her claim. As described in para. 9 above, she relied on the observation made by Simons J. in Nowak v. Intesa Sanpaolo Life that the Circuit Court office had accepted that it had made an error. Accordingly, she submitted that there was obvious negligence on the part of the defendant and that the judge was wrong not to take that into account. I cannot agree. The fact that a public body may make a mistake does not automatically mean that a person affected by that mistake has a right of action in negligence against the public body in question. In order to sustain a case in negligence against the defendant, Ms. Nowak will need to satisfy the court of trial that all of the relevant criteria identified by the Supreme Court in Barlow v. Minister for Communications, Marine & Natural Resources [2025] 26 IESC 14 are satisfied. In para. 155 of his judgment in that case, Murray J. identified the principles which govern whether a duty of care can be said to be owed by one party to another. At a later point in his judgment, he considered in some detail the additional principles which potentially apply in relation to cases against public bodies. If this case goes to trial, the burden of proof will be on Ms. Nowak, as plaintiff, to establish that all of the relevant criteria for the imposition of liability against the defendant are satisfied. In those circumstances, it would be quite wrong for the court, on the hearing of a motion under O. 27, r. 9 to embark on an enquiry as to whether the defendant has a good defence to the claim. On the hearing of a motion under O. 27, r. 9, a court will rarely have sufficient knowledge of the detail of the case to allow it to reliably conclude that a defendant has no defence on the merits. A court should also keep in mind the observation of McCarthy J. in Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425, at p. 428 that experience has shown “that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages of the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture”. 46. While I think this would be the exception rather than the rule, I would not exclude the possibility that there may be a small number of cases where it will be very obvious that a defendant has no defence. In such a clear case, there might be a proper basis for a court to conclude that it is not in the interests of justice to extend time for delivery of a defence. But this is not such a case. As the judgment of the Supreme Court in Barlow illustrates, the issue as to whether a duty of care could be said to be owed by the defendant to the plaintiff is, by no means, straightforward. I would therefore reject this ground of appeal advanced by Ms. Nowak. 27 The contention that the judge put misplaced emphasis on the decision of the Supreme Court in Comcast International Holdings Inc. v. Minister for Public Enterprise and the decision of Hogan J. in Gokul v. Aer Lingus 47. As outlined above, Ms. Nowak contends that the judge put misplaced emphasis on the decision of the Supreme Court in Comcast International Holdings Inc. v. Minister for Public Enterprise [2012] IESC 50. In her judgment in this case, the judge appears to have been influenced, at least to some extent by what Clarke J. (as he then was) said, at para. 5.24 of his judgment in that case (which was concerned with delay on the part of a plaintiff in prosecuting a claim). He said: “O. 27., r. 1 and r. 1A are primarily designed as a method of speeding up proceedings even though the form of the order which may ultimately be sought, is to dismiss for want of prosecution. That situation is analogous to that which now pertains under Order 27 r. 8 where, in the cases to which that rule applies, a plaintiff is required to write a similar letter extending time for defence prior to initiating a motion for judgment in default of defence. While the ultimate order which would be sought in the absence of the defence being filed within the extended period granted by the letter is an order for judgment nonetheless the primary purpose of the order is to provide a mechanism whereby the filing of a defence may be speeded up rather than the proceedings brought to an end.” (emphasis added). 48. In similar vein, the High Court judge also referred to the judgment of Hogan J. in Gokul v. Aer Lingus [2013] IEHC 432 which she said provided most useful guidance in the context of the interests of justice principle where applicable to a provision of the Rules. She cited para. 14 of the judgment in that case where Hogan J. said: 28 “It might also be observed that a construction of the Rules of the Superior Courts which insisted on perfect and undeviating compliance with the requirements of the Rules, would be at odds with fundamental principles regarding the constitutional right of access to the courts. The contemporary case-law is clear that legislative provisions which regulate the right of access to the courts must be interpreted in a manner which respects these fundamental principles” 49. A similar theme underlies the decision of Murray J. (as he then was) in the Supreme Court in McGuinn v. Commissioner of An Garda Siochana [2011] IESC 33. In that case, Murray J. said: “The Courts in the interests of justice, lean in favour of a determination of litigation on the merits of the issues between the parties rather than preventing a party from having access to the Courts, when his or her rights or obligations are being determined, for procedural reasons including culpable delay. This is not to say that the Courts would not be more stringent in requiring adherence to time limits in particular when set by an order of a court in a particular case, for the reasons outlined by Hardiman J. and referred to above”. 50. In my view, the approach taken in these cases must now be viewed with a degree of caution. In this context, it is important to consider two developments which have occurred. The first is the decision of the Supreme Court in Kirwan v. Connors [2025] IESC 21 and the second is the enactment of the Amended Rules. The decision in Kirwan v. Connors was delivered one month after the decision of the High Court judge in this case. While that case was concerned with an application to dismiss a plaintiff’s claim on the grounds of delay, there are a number aspects of the decision which are relevant. In the first place, the Supreme Court made clear that rules such as O. 122, r. 11 (dealing with dismissal of a case for want of prosecution) do not represent an interference with the right of access to the courts. As O’Donnell C.J. observed at para. 24 of his judgment in that case: 29 “In my view, little weight should be given to the idea that the… Order 122 Rule 11 jurisdiction is an interference with a right of access to courts. The derived right of access to courts is a right of access to litigate claims. A system of administration of justice with scarce resources must set rules for the conduct of claims which, if not unreasonably strict or difficult to comply with, are perfectly permissible. The claimant who brings proceedings and does not prosecute them has been afforded full access to the courts to litigate their claim and has not done so….” (emphasis in original) 51. This appears to modify the approach taken by Hogan J. in Gokul in relation to access to the court. Rules which regulate the conduct of litigants do not per se trench upon rights of access. While the observations of the Chief Justice were directed to the position of a plaintiff, it seems to me that similar considerations apply to the position of a defendant. By affording a defendant the opportunity to enter an appearance, the defendant has been given access to the court. The Amended Rules thereafter govern the right to litigate the defendant’s defence. In the context of the relatively straightforward nature of the case made by Ms. Nowak in these proceedings, the time currently fixed by the Amended Rules for delivery of a defence could not be said to be either “unreasonably strict or difficult to comply with”. It is therefore important that a defendant should aim to deliver its defence within that timeframe and, if that timeframe is not capable of being met, the defendant should be in a position to explain why that is so. 52. The second aspect of the decision in Kirwan v. Connors which should be kept in mind is the emphasis which the Supreme Court placed on changed judicial attitudes to delay on the part of litigants. In para. 2 of his judgment in that case, Hogan J. said: “2. It is now over twenty years since the decision of this Court in December 2004 in Gilroy v. Flynn … [2005] 1 ILRM 290. In that case, Hardiman J. drew attention to a series of developments which had taken place in the eight-year interval since 30 the earlier decision of this Court in Primor regarding the jurisdiction to strike out by reason of undue delay. These developments of which Hardiman J. spoke included the amendments to Ord. 27 dealing with the default of pleading and an increased judicial awareness of ‘unfairness and the increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued’: [2005] 1 ILRM 290 at 293-294. Hardiman J. also pointed to the potential impact of the European Convention of Human Rights Act 2003 and the duty of the courts to ensure that ‘quite independently of the parties to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.’” 53. In para. 3 of his judgment, Hogan J. quoted further from the judgment in Gilroy v. Flynn at p. 294 where Hardiman J. observed that: “…comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as [Primor] will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope.” 54. Having cited what Hardiman J. said in Gilroy v. Flynn, Hogan J., in paras. 4 and 5 of his judgment, noted the change in judicial attitudes to the issue of delay: “4. These words have served as a leitmotif for reform and for changing judicial attitudes to the issue of delay in civil proceedings. There is no question but that our legal system had previously been far too accommodating so far as delay in the prosecution of litigation had been concerned. Even comparatively recent decisions of the European Court of Human Rights such as Keaney v. Ireland [2020] ECHR 118 show that delays in the legal system remain. Such delays do not reflect well on either the fairness or the efficiency of the legal system. 31 5. The present case highlights the need for reform of the Rules of the Superior Courts and, independently of this, of the need for the courts to be more prescriptive in terms of setting timetables and deadlines for litigants. There is in fact a good deal which the courts can already do of their own volition…” 55. In light of the approach taken by the Supreme Court in Kirwan v. Connors, it seems to me that the observations in the earlier decisions cited by the High Court judge in this case should now be treated with some caution. I would not go so far as to suggest that, on the hearing of a motion for judgment, a court, should no longer lean in favour of a determination of litigation on the merits of the issues between the parties. Undoubtedly, that remains a desirable goal. However, a court must weigh that interest against the need to ensure that there should not be inordinate delay in the progress and determination of proceedings and the need to ensure that parties do not flout their obligations under the Rules. 56. The second factor to bear in mind is the change effected by the Amended Rules. As outlined in paras. 34 and 35 above, the Amended Rules have doubled the period previously available under O. 21 for delivery of a defence. In addition, as explained in para. 34 above, a defendant continues to have the benefit of an additional 28 days available under O. 27, r. 10

(1)following the service of a warning letter sent by the plaintiff. Furthermore, under O. 27, r. 9

(1), a defendant continues to have an additional period of 21 days for delivery of is defence after service of a motion seeking judgment in default of defence. In combination, these rules give a defendant a period of 15 weeks in which to deliver a defence.

1. In contrast, the relevant time limits for delivery of pleadings under the rules considered by Clarke J. in the Comcast case were notably shorter than those now available under the Amended Rules. This is starkly so in the Gokul case where the relevant time limit in issue was the 8-day period prescribed for the entry of an appearance. Against the backdrop of such attenuated time periods, it is unsurprising that courts took a relatively sympathetic 32 approach where the relevant step in issue was not completed within the period the prescribed by the Rules.
2. The intention underlying the extended period available under O. 21 for delivery of a defence was plainly to provide a realistic period of time for the preparation of that pleading in plenary proceedings. Given the extended period available under the Amended Rules, there is less scope for the court to indulge further delay on a defendant’s part. This is underscored by the terms of O. 27, r. 9

(1)which makes clear that, in contested motions, an extension of time will only be granted where the defendant shows that it is necessary in the interests of justice to grant an extension. It is also underscored by the terms of O. 27, r. 9

(2)which was designed to stem the tide of repeated motions for judgment necessitated by repeated failures of defendants to deliver a defence. Prior to these amendments, the Monday motion lists in the High Court had become clogged with motions against defendants who, in many cases, had been the subject of earlier motions and who had failed to avail of the benefit of previous extensions of time given by the court.

1. In light of the developments highlighted in paras. 50 to 58 above, I am of the view that the observations in the Comcast and Gokul cases cited by the judge should be treated with caution. The approach taken by the Supreme Court in Kirwan v. Connors suggests that, by parallel reasoning, there will, from now on, be a greater expectation that parties will comply with the time limits fixed by the Amended Rules.
2. On the other side of the equation, it is necessary to keep in mind that the time limits fixed by the Amended Rules for delivery of pleadings are not absolute. Apart from the ability of the parties themselves to agree an extension of time under O. 122, r. 8, the court is expressly empowered under O. 27, r. 9

(1)to extend the time for delivery of the defence where it is in the interests of justice to do so. That test necessarily requires the court to engage with the particular facts of the case. For that reason, it is essential that a defendant facing a motion under O. 27, r. 9 should place sufficient evidence before the court to satisfy it that, 33 on the facts, it is in the interests of justice to extend the time for delivery of the defence. That brings me to the next issue raised by Ms. Nowak in support of her appeal, namely the alleged failure of the defendant to explain the reasons for the delay in delivering its defence and her contention that special circumstances had to be shown. The alleged failure of the defendant to explain the reasons for the delay in delivering its defence and its alleged failure to show the existence of special circumstances 61. It seems to me that any consideration of this ground also brings into play the other grounds advanced by Ms. Nowak as summarised in para. 43(d) to 43(h) above. For that reason, it seems to me to be sensible to address all of these grounds together. 62. I have previously explained in paras. 24 to 29 above why I believe that Ms. Nowak is mistaken in her contention that a defendant must show special circumstances in order to justify an extension of time for delivery of a defence under O. 27, r. 9

(1). The test for the grant of an extension is not based on special circumstances but on whether it is necessary in the interests of justice to extend the time. In my view, that is a broader test than one based on special circumstances. It permits the court to have regard to a wide range of factors including the extent of the delay, the explanation offered by the defendant for the delay, the impact of the delay on the plaintiff, the urgency of the case and any other circumstances that may be relevant. For example, the readiness of the defendant to deliver the defence may also be relevant. Given that justice is best achieved by a hearing on the merits, it would be seem to me to be relevant that, at the time of the hearing of the motion, the defence is either available or will imminently be available. In such circumstances, although the court should always keep in mind the policy underlying the Amended Rules, the interests of justice are likely to weigh in favour of an extension. Having regard to the terms of O. 27, r. 9

(2), the court can be confident that any extension granted by it under O. 27, r. 9

(1)will bring a measure of finality to the issue. 34

1. Given the broad scope of the test, it would be inappropriate to attempt to exhaustively identify all of the factors to which regard can be had. However, for all of the reasons outlined in paras. 50 to 59 above, it seems to me that, in cases where a plaintiff does not consent to late delivery of the defence, a defendant will need to address on affidavit the reasons why it has not delivered its defence within the time available under Orders 21 and
2. Depending on the facts and circumstances of an individual case, that explanation may – or may not – be sufficient to establish that it is in the interests of justice to grant an extension of time. However, even in cases where the explanation for the delay is unconvincing or insufficient, there may well be other circumstances which will be sufficient to establish that it is, nonetheless, necessary in the interests of justice that an extension of time should be granted under O. 27, r. 9

(1).

1. As explained in para. 13 above, an affidavit was sworn on behalf of the defendant by Ms. Lauren McCausland. In my view, the explanations advanced by Ms. McCausland for the failure of defendant to deliver its defence within the prescribed time are unconvincing. For the reasons explained in para. 14 above, the fact that a request for particulars was served was not a sufficient basis to defer delivery of the defence. The other principal reason advanced was the need to consult the court file but, as also noted in para. 14, that contention is wholly lacking in detail and it does not come near to explaining why a defence was not delivered within the timeframe available under the Amended Rules.
2. However, the affidavit of Ms. McCausland did not stop there. As noted in para. 14, Ms. McCausland also stressed that a defence had been prepared and had been provided to Ms. Nowak. That occurred on 5th February 2025 which was in advance of the return date on the motion, namely 17th February
3. In addition, Ms. McCausland stressed that the defendant had engaged with Ms. McCausland during the months of November and December
4. She identified that, in response to Ms. Nowak’s warning letter of 4th November 2024, the defendant had served its request for particulars on 26th November 35 2024 and had requested Ms. Nowak to refrain from issuing a motion for judgment in default of defence. A similar request was made in a letter dated 4th December 2024 in which Ms. Nowak was informed that the defence was “at an advanced stage” but that it would not be ready by the deadline of 5th December 2024 as notified by Ms. Nowak in her email of 29th November
5. In addition, Ms. McCausland exhibited Ms. Nowak’s emails of 4th December 2024 (refusing to hold off on issuing the threatened motion) and 5th February 2025 (rejecting the defence provided on that date) in which Ms. Nowak, in reliance on the judgment of Simons J. in the Intesa case, maintained that the defendant could have no defence to her claim.
6. It is clear from the correspondence between the parties that, notwithstanding its failure to deliver its defence within the time available under the Amended Rules, the defendant was not ignoring Ms. Nowak’s case. It was making belated attempts to address the case. It is equally clear from the correspondence that Ms. Nowak was of the view that the defendant could have no defence at law to her claim. That view appears to have significantly coloured her responses to the defendant’s requests to her to defer issuing a motion for judgment. However, as explained in para. 45 above, Ms. Nowak does not appear to have considered the implications of the Barlow judgment and does not appear to have appreciated that the fact that a public body may have made an error does not automatically mean that the body is exposed to liability to a party affected by that error.
7. In my view, notwithstanding the fact that the defendant had failed to provide a convincing reason for the delay in delivery of its defence, there was sufficient material before the High Court judge to allow her to properly conclude that it was necessary in the interests of justice to extend the time for delivery of the defence in this case. I believe that there are a number of factors that are relevant in this context and which together outweigh the countervailing interest in ensuring that the time limits imposed by the Rules should be complied with. 36
8. The factors to which the judge had regard are set out in para. 21 above. The first was that the defence had been provided to the plaintiff on 5th February
9. That was 12 days before the return date of the motion. The defence is comprehensive. Contrary to Ms. Nowak’s view, there is nothing to suggest that the defence is bound to fail. It is true that the defence was delivered approximately 8 weeks after the motion was issued and some 5 weeks after the time available under O. 27, r. 10

(4)had expired. Under that rule, a defendant, subject to certain conditions, is permitted to deliver its defence within 21 days after the issue of such a motion. However, as the High Court judge observed in her judgment, no prejudice of any substantial nature has been caused to Ms. Nowak as a consequence. If anything, it is her steadfast opposition to grant an extension of time to the defendant which has substantially delayed the onward progression of these proceedings. Because of her opposition to an extension, her motion was not heard until 31st March 2025 and, thereafter, her appeal to this Court has added very substantially to the delay. The delay to the progress of the proceedings as a consequence of Ms. Nowak’s appeal dwarfs the delay of the defendant in delivering its defence. 69. In my view, Ms. Nowak has gone too far in suggesting that there was inordinate delay on the defendant’s part. While the delay is unimpressive and while the defendant has not provided a convincing explanation for its failure to deliver the defence on time, it seems to me that the delay was not so immoderate or excessive as to justify a court in refusing to extend time. Under the terms of Ms. Nowak’s warning letter of 4th November 2024 issued pursuant to O. 27, r. 10

(1), the time for delivery of the defence was (as that sub-rule requires) extended for 28 days. The defence was made available within a little more than two months after the expiry of that period. While judicial attitudes to delay may be said to have hardened since the decision of the Supreme Court in McGuinn v. Commissioner of An Garda Siochana, the interests of justice continue to lean in favour of a determination of litigation on the merits of the issues between the parties. The interests of justice do not 37 require that the guillotine should be brought down on a party who has been guilty of a relatively short period of delay. The position may be different where a plaintiff can show real prejudice as a consequence of delay or where a defendant has been responsible for a more sustained period of delay or inactivity. This is not such a case.

1. There is a combination of factors at play in this case which strongly supports the decision of the High Court judge. In my view, the provision of the defence in advance of the hearing of the motion, combined with the fact that the period of delay was relatively short and the fact that there was no evidence of actual prejudice on the part of Ms. Nowak are sufficient in themselves to justify the finding of the High Court judge that it was necessary in the interests of justice to grant an extension in this case. On the basis of the correspondence between the parties exhibited by Ms. McCausland, I also believe that the High Court judge was entitled to have regard to the fact that there was engagement between the parties in the course of November and December
2. While that engagement was somewhat belated and while the service of the request for particulars during that period did not have the effect of suspending the obligation to deliver a defence, the fact that such a request was raised shows that the defendant was attempting to deal with Ms. Nowak’s case and was not ignoring the proceedings. That is a matter which suggested that the defendant was addressing the merits of the proceedings such as to make it unjust, in the absence of countervailing circumstances such as actual prejudice, to refuse to extend the time for delivery of the defence.
3. There are two aspects of the High Court judgment on which I would take a different view to that of the High Court judge. The first is her reliance on the fact that this was the first motion for judgment. Having regard to the changes made by the Amended Rules, I believe that this is no longer a relevant criterion in considering an O. 27, r. 9 issue. The terms of O. 27, r. 9 plainly envisage that there should only be a need to bring one motion for judgment in default of defence. There should no longer be any necessity for repeated 38 motions. The second aspect of the judgment which requires qualification is the reference to the right of access to the court. In light of the approach taken by the Supreme Court in Kirwan v. Connors , I believe that it is necessary to recalibrate this aspect of the High Court judgment. It is the right to litigate a defence which is the relevant right in issue. The High Court judge did not have the benefit of the Supreme Court judgment in that case which was delivered a month after her decision.
4. For the reasons discussed in paras. 50 to 58 above, I also believe that the decisions cited by the judge should now be read with a degree of caution and, in particular, in light of the policy underlying the Amended Rules and the shift in the judicial approach to delay signalled in the judgment of the Supreme Court in Kirwan v. Connors.
5. In my view, none of the considerations identified in paras. 71 to 72 above affects the validity of the judge’s conclusion that it was necessary in the interests of justice to extend the time for delivery of the defence. As outlined in para. 70 above, there was a combination of factors in this case which are sufficient in themselves to amply support the decision of the High Court judge. Conclusion
6. In all of the circumstances discussed above, I have come to the conclusion that the High Court judge was plainly correct to find that it was necessary in the interests of justice to extend the time for delivery of the defence and that it was not necessary, on the particular facts of this case, for the judge to make an “unless order” under O. 27, r. 9

(2). It follows that the decision of the High Court should be affirmed and the appeal of the appellant must be dismissed. 75. In so far as costs are concerned, it is clear that the defendant has been entirely successful in this appeal. In light of the provisions of s. 169

(1)of the Legal Services Regulation Act 2015, it follows that the defendant is presumptively entitled to an order for the costs of the 39 appeal against Ms. Nowak. However, in the event that Ms. Nowak wishes to canvass for a different order as to costs, she is at liberty to deliver a short written submission (of not more than 1,500 words) within 14 days from the date of delivery of this judgment, failing which an order for costs will be made in favour of the defendant, such costs to be adjudicated in default of agreement.

1. In the event that Ms. Nowak delivers such a submission within the above timeframe, the defendant is at liberty to deliver replying submission (subject to the same word limit) within a further period of 14 days, following which the Court will issue an electronic ruling on the issue of costs.
2. Binchy and Meenan JJ. agree with this judgment and with the orders that I propose. 40