High Court: Affidavit of verification of personal injuries summons must be served prior to issuing motion for judgment in default of appearance

About this case:

• Citation:
  [2026] IEHC 482
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Emily Egan

Delivering judgment for the High Court in June, Ms Justice Emily Egan opined: “a holistic reading of the scheme of the RSC would suggest that the plaintiff should have delivered or served the affidavit of verification before applying to the court for judgment in default of appearance. This in turn would imply that an affidavit of service of the affidavit of verification is one of its proofs for judgment in default of appearance.”

Background

The plaintiff alleged that on 5 April 2018, she fell on an uneven floor mat and sustained a complete rupture to her Achilles tendon and other soft tissue injury to her ankle in the course of a bungee fitness class at the second defendant’s exercise centre, Kinetic Fitness, in Co. Wexford.

The plaintiff issued personal injuries proceedings on 2 September 2020, serving all three defendants with the proceedings on 18 June 2021.

The plaintiff filed the required affidavit of verification in the Central Office of the High Court on 20 May 2021.

The second defendant failed to enter an appearance, resulting in the relevant 28-day warning letter and a motion for judgment in default of appearance issuing as against him in May 2023 and October 2023 respectively.

The plaintiff encountered extreme difficulty in serving the motion on the second defendant, eventually managing to personally serve him with certified copies of the personal injuries summons and the affidavit of verification of the personal injuries summons, a copies of the motion and the 28-day warning letter on 18 February 2026.

The plaintiff’s motion for judgment in default of appearance came before the High Court for hearing.

The High Court

At the outset, Ms Justice Egan explained that the purpose of delivering a written judgment was to provide assistance in respect of a frequently occurring question in the common law 1 motion list: whether service of the affidavit of verification is an essential proof for judgment in default of appearance in personal injuries actions and if so, whether such service must be effected prior to issuing the relevant motion.

The judge firstly examined s.14 of the Civil Liability and Courts Act 2004, which required the plaintiff to swear an affidavit of verification of her personal injuries summons and to lodge same in court within 21 days of service of the summons.

Noting that the plaintiff had complied with that obligation, the court highlighted that the 2004 Act “does not mandate the service of this affidavit of verification on the defendant.”

Turning to S.I. No. 248 of 2005, Rules of the Superior Court (Personal Injuries) 2005, the court focused on Order 1A, Rule 11 which sets out the form of an affidavit of verification and requires that a copy of the affidavit is served on the opposing party at the same time as the personal injuries summons or within 21 days thereafter.

At this juncture, Ms Justice Egan pointed out that Order 1A, Rule 11(4) provides that where the copy of the affidavit of verification is delivered following the pleading, the time prescribed for the delivery of any pleading or replying document shall run from the date of delivery of the copy affidavit. 

Noting that an appearance is not a “pleading” nor a “document in reply”, the judge mused that arguably, the time for the filing of an appearance continues to run notwithstanding the non-delivery of an affidavit of verification.

The judge then considered Order 1A, Rule 12(2), concluding that no application for judgment or for other relief “in default of pleading” shall be granted in a personal injuries action unless the moving party has satisfied the court that it has verified its previous pleadings in that action on oath.

In this regard, the court explained “Although a motion for judgment in default of appearance is “an application for judgment” (albeit not an application for judgment “in default of pleading”). The rule requires only that the moving party has verified his pleadings, rather than that the affidavit of verification itself has been delivered or served on the other party.”

Examining Order 13, Ms Justice Egan outlined that pursuant to Rule 8, a plaintiff may apply for judgment in default of appearance upon filing in the Central Office “an affidavit or affidavits of service of the personal injuries summons and an affidavit verifying the contents of the said personal injuries summons.”

Finding that this raised two questions: whether it is necessary to file both an affidavit of service in respect of the personal injuries summons and in respect of the affidavit of verification, or whether it is only necessary for the plaintiff to file an affidavit of service of the summons.

Acknowledging that both interpretations were possible, Ms Justice Egan concluded that reading Order 13, Rule 8 together with Order 1A, Rule 11(2) and (3) suggests that the latter interpretation is the correct one.

The judge clarified, “As indicated above Order 1A, Rule 11(2) requires that the affidavit of verification is delivered to the party to whom the pleading is addressed and that this is done either at the time of delivery of the pleading in question or within 21 days thereof. The separate requirement to file the affidavit of verification in the Central Office is dealt with under Order 1A, Rule 11(3).”

In circumstances where the Rules of the Superior Courts oblige a plaintiff to deliver their affidavit of verification within 21 days of the personal injuries summons, and where a motion for judgment in default of defence cannot issue until the expiry of the 28-day warning letter, which would logically be after the 21-day period, the court determined that “a holistic reading of the scheme of the RSC would suggest that the plaintiff should have delivered or served the affidavit of verification before applying to the court for judgment in default of appearance.”

Ms Justice Egan emphasised that “This in turn would imply that an affidavit of service of the affidavit of verification is one of its proofs for judgment in default of appearance.”

As to the second question, being whether the plaintiff could issue her motion prior to serving the affidavit of verification and then file an affidavit of service in respect thereof prior to moving the motion, the High Court did not believe that this was the correct interpretation of Order 13, Rule 8 as, “Clearly an order for judgment in default of appearance cannot be obtained unless the plaintiff has first served the personal injuries summons (and the warning letter etc). Therefore, an affidavit of service of the personal injuries summons will be an essential proof.”

The court continued: “There is no particular reason, on the wording of Order 13, Rule 8, to distinguish between the timing of the filing of affidavit of service of the personal injuries summons on the one hand and the affidavit of service of the verifying affidavit on the other.”

Conclusion

In circumstances where the affidavit of verification had not been served until after the motion had issued, the High Court refused the reliefs sought.

Meyler v Alexandra Blimka t/a Bungee Fit Justice & Ors [2026] IEHC 482