Consequences of not filing responding affidavit?

sooty and the daleks

Hi all,


I have a case currently with the Irish circuit court. We put in our grounding affidavit and they responded. We asked for time to respond to this response and were given a date of the next sitting of the court which expires very soon.

The solicitor has told me that we can lodge my affidavit at any time, including after the current circuit court finishes.

What could the possible consequences of not lodging my affidavit with the court during the time we said we would.



Sooty

Pat Mustard

Your solicitor has advised that you have time to put in your affidavit.

You say that you do not.

If you are not happy, get a new solicitor.

EDIT: You have changed your post now.

Cody Pomeray

We can't give legal advice.

But it is by no means fatal for one side to simply not have filed their defence by the return date. It may indeed be the case that your solicitor seems overly casual about it, and you should seek a clarification for the basis of his certainty if it puts your mind at rest.

I have seen far worse cases than yours in the circuit court, of one side repeatedly returning empty handed and motions for default, nevertheless, consistently refused. Each case has its own peculiarities and complexities and judges tend to be mindful of this.

sooty and the daleks

Hi Cody,

Thanks for the reply.

Can a defendant apply for a motion for default or is it something that only the plaintiff can apply for?

Sooty

NoQuarter

sooty and the daleks wrote: »

Hi Cody,

Thanks for the reply.

Can a defendant apply for a motion for default or is it something that only the plaintiff can apply for?

Sooty

Defendants can issue motions. Depends on the circumstances of course. A usual one would be to issue a motion to dismiss the plaintiffs claim for want of prosecution if things arent moving along. There are costs considerations to go along with court appearances on foot of motions though.

sooty and the daleks

That's something I hadn't thought of, I know a person can appear before the circuit court without a solicitor.

But can a plaintiff lodge and affidavit to the court without a solicitor?

NoQuarter

sooty and the daleks wrote: »

That's something I hadn't thought of, I know a person can appear before the circuit court without a solicitor.

But can a plaintiff lodge and affidavit to the court without a solicitor?

Yes. Have a look here, it will give you an idea of the format of an affidavit.

http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/37E1F376836F9C2880256E04003B8DB2?opendocument&l=en

An affidavit alone may not be enough, for example, when defendants are trying to dismiss the claim for want of prosecution then need to issue a "motion" which is grounded on an affidavit. That is why it is advisable to have legal advice.

Pro Hoc Vice

sooty and the daleks wrote: »

That's something I hadn't thought of, I know a person can appear before the circuit court without a solicitor.

But can a plaintiff lodge and affidavit to the court without a solicitor?

Yes of course, it would make personal representation worthless if a person could not do everything, a solicitor and or barrister can do. But just because a person is allowed to do something does not mean they know how to do something. I have seen excellent affidavits drafted by lay litigants but they are very rare. Most mix in law, and opinion with a touch of nuttiness rarely do they have what they are supposed to have which is evidence.

Cody Pomeray

infosys wrote: »

Yes of course, it would make personal representation worthless if a person could not do everything, a solicitor and or barrister can do. But just because a person is allowed to do something does not mean they know how to do something. I have seen excellent affidavits drafted by lay litigants but they are very rare. Most mix in law, and opinion with a touch of nuttiness rarely do they have what they are supposed to have which is evidence.

This is true and I wonder if judges go too far in trying to level the playing field for litigants in person.

Why should judges entertain poor draftsmanship, confused arguments, improper procedures and "a touch of nuttiness" as you kindly understate it, at all? And is it not absurd that the person who does go to the thankless trouble of paying a Barrister and a solicitor proper procedures and coherent arguments can even find themselves at a disadvantage, since the litigant in person can seemingly do and say anything s/he wants and effectively get away with it. Last week on Judge Irvine's list there was a lay litigant who clearly incorrectly served a summons by serving it on the wrong person, and (partly a reflection of that Judge's seemingly endless courteousness, of course) it was treated as if he had simply committed a typo of some kind.

I know legal fees are the big concern, but to a certain extent I think an un-willingness to take on a lawyer can reflect an acknowledgement that the case is bordering on the vexatious. A lot of people have lost money in the last few years, and they feel 'stung', and take sometimes very frivolous, weak cases to the courts. I think the judiciary needs to clamp down on it, and perhaps an improved legal aid system can act as some sort of sieve as well.

sooty and the daleks

I have been told there is a Statutory Instrument that regulates how an affidavit is presented to the court, like no hand writing, minimum font size, margins, paragraphs, page colour etc... Is there such a thing as a law on font size for document presented to the court????