CoA, November 2, 2026, Decision on application to set aside a decision by default, UPC_CoA_935/2025

An alternative method authorised under R. 275 RoP need not be a method prescribed by the internal law of the State of destination for the service of documents in domestic proceedings. Otherwise, the reference in R. 274.1(b) RoP to an alternative method authorised under R. 275 RoP would have no autonomous meaning.

A determination under R. 275.3(b) RoP that the Statement of claim is deemed served on a particular date does not, by itself, establish actual service within the meaning of R. 277(b) RoP. Actual service may nevertheless be established independently on the basis of the factual circumstances underlying that determination.

The completion of a separate service procedure on a later date does not retrospectively invalidate a R. 275 Order or supersede a date of deemed service established under R. 275.3(b) RoP. Since the period for filing the Statement of defence already begins to run on the date of a deemetd service stablished by a valid R. 275 Order, a later actual service does not cause a new period under R. 23 RoP to begin.

In exercising its discretion under R. 9.3(a) RoP, the Court must take account of all the circumstances of the case, including the reasons for the failure to comply with the period, the conduct of the party and its representative, and the promptness with which the Court and the opposing party were informed of the relevant circumstances. A party seeking an extension on account of an unforeseen circumstance should inform the Court without undue delay once that circumstance becomes apparent, where such communication remains reasonably possible.

R. 353 RoP permits the Court to rectify clerical mistakes, errors in calculation and obvious slips in a decision or order. The circumstances contemplated by R. 353 RoP presuppose a discrepancy between the decision intended by the Court and its material expression. R. 353 RoP does not permit the Court, under the guise of rectification, to reconsider or alter a substantive legal assessment contained in the decision or to substitute a different legal conclusion for the one originally expressed.

Once an application to set aside a decision by default complies with the requirements of R. 356.2 RoP, the Court does not retain a general discretion to refuse it on the ground that the default is considered insufficiently justified or excusable.

The explanation required by R. 356.2 RoP does not operate as a plea for relief requiring the applicant to prove that the default occurred without fault or was otherwise excusable. It enables the Court to identify the cause and scope of the default and may inform the exercise of its discretionary powers in the subsequent conduct of the proceedings, including case-management orders, the allocation of costs and a notice under R. 356.3 RoP that a further decision by default shall be final.

The Court must verify that the application contains a genuine and truthful explanation of how and why the default occurred. The explanation must identify the circumstances which caused the default and must be intelligible, sufficiently complete and causally connected with the procedural omission concerned. A merely apparent statement, an account unrelated to the default, a deliberately incomplete explanation or a knowingly false representation would not satisfy that requirement.

The notice required by R. 356.3 RoP must be express and clear. It must specifically inform the party that, in the event of a further default, the resulting decision by default shall be final and that the remedy under R. 356 RoP will no longer be available.

Mere notice that a decision by default will be issued does not satisfy that requirement.