NO REDACTION REQUIRED  APPROVED  [2021] IEHC 554  
 
 
THE HIGH COURT  
 
2018 No. 8976 P  
 BETWEEN  
  
DRM CONTRACT ADMINISTRATION LIMITED 
 
PLAINTIFF  
 
AND  
  
PROTON TECHNOLOGIES AG  
 
DEFENDANT  
 
 
JUDGMENT of Mr. Justice Garrett Simons delivered on 25 August 2021 
 INTRODUCTION 
1. This judgment addresses the fallout of a tactical decision made by the defendant 
not to contest a claim for defamation brought  against it.  The defendant is a 
company register ed in Switzerland and provides email services.  It is alleged that 
the user of one of its email accounts defamed the plaintiff in two emails  sent to 
third parties.  
2. The defendant regards the claim against it as unstateable on the basis that , as a 
mere conduit for the transmission of data, it is not liable for the defamatory 
content of any emails sent via its service.  The defendant relies i n this regard on 
the exemptions  and immunities in favour of intermediary service provider s under 
the Di rective on Electronic Commerce (Directive 2000/31/EC ). 
3. It has been explained on affidavit that the officers of the defendant company, 
having weighed up the financial cost of engaging legal representation here , made 
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a decision not to contest  the proceedings  in this jurisdiction .  It is said that in 
Switzerland the claim for defamation would be rejected by a judge even where it 
was not contested as the civil court applies the law ex officio .  It seems to have 
been assumed that the Irish Courts would adopt a s imilar proactive approach.  
4. Having made this tactical decision , the defendant chose not to enter a formal 
appearance to the proceedings, notwithstanding that it had received the plenary summons by way of email and tracked post.  (As discussed presently, one  of the 
issues to be addressed  in this judgment is whether the formal requirements for 
service had been complied with by the plaintiff).  
5. The plaintiff subsequently applied for, and obtained, judgment in default of appearance.  Upon learning of this, the de fendant issued a motion seeking to set 
aside the judgment .  The plaintiff opposes this motion.  The plaintiff has, 
however, taken the precaution of issuing its own motion seeking to renew the plenary summons.  This has been done in an attempt to protect it s position in 
respect of the limitation period in the event that  the service of the proceedings is 
set aside as irregular.   The limitation period for defamation proceedings is 
normally one year.  
6. Both motions came on for hearing before me on 20 July 2021.  It was agreed 
between the parties that the motion to set aside the default judgment should be heard first, and that the court should then hear the motion to renew the plenary summons  de bene es se.  This is because, depending on the outcome of the first 
motion, the second motion might become redundant.  Judgment was reserved in 
respect of both motions until today’s date.  
 
 
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PROCEDURAL HISTORY 
7. These proceedings relate to two emails alleged to have been sent via the 
defendant’s email service on 10 May 2018, and 25 August 2018, respectively.   
The emails were sent using the pseudonym “ConcernedTaxPayer11”.   
8. The content of the two emails has been set out verbatim as an annex to the statement of claim.  The gist of the emails is that the managing direc tor of the 
plaintiff company, Mr. Darragh Quinn, had engaged in fraudulent activities in 
respect of the N56 Kilkenny to Letterilly road project.  The alleged fraudulent 
activities are said to involve “ the extortion of monies ( or taking a ‘ cut’)” from 
sub-contractors and suppliers to the project.  It is also alleged that Mr. Quinn has 
a conflict of interest in respect of the public procurement  of road projects.  
9. The emails were, seemingly, sent to a number of politicians, to two newspaper 
groups and to certai n members of Donegal County Council.  
10. Mr. Quinn has instituted separate defamation proceedings in his own name arising 
out of these emails ( Quinn v. Proton Technologies AG  High Court 2019 
No. 3540 P).  
11. Prior to the institution of the within proceedings, the solicitor acting on behalf of the plaintiff had engaged in correspondence with the  defendant  during the course 
of September and October 2018.  This correspondence called upon the defendant 
to furnish full details of the author of the emails; to desist from publishing any further defamatory material; to publish an apology; and to make proposals with regard to compensating Mr. Quinn for the damage done to his good name.  In 
subsequent letters in the chai n of correspondence, the plaintiff’s solicitor stated 
that “an Irish Defamation Jury will be asked by Counsel to approve exemplary 
damages against you for 10 million euro”. 
4 
 
12. In reply  to this correspondence , the defendant explained that, in accordance with 
Swiss law, it was precluded from divulging the identity of the account user 
without a formal process.  It was suggested, therefore, that the plaintiff should 
make an international data request through a formal MLA request.   The 
abbreviation “MLA” stands for  mutual legal assistance.  In the event, however,  
no such application was made, and, instead, the plaintiff instituted the within 
proceedings on 15 October 2018.   
13. The defendant, in the pre -litigation correspondence, had also invited the plaintiff 
to report the emails to the defendant’s “abuse team”.  It was explained that the 
abuse team would investigate whether the content of the email s was in breach of 
the defendant ’s terms and conditions.  In the event, however, it seems that the 
user of the email account unilaterally deleted same prior to any investigation by 
the abuse team.  
14. A plenary summons issued out of the Central Office of the High Court on 
15 October 2018.  The principal relief sought i s damages for defamation, 
including aggravated and exempl ary damages.  
15. The plenary summons is endorsed for service outside of the jurisdiction and bears 
the following endorsement.  
“Lugano Convention 2007: The Irish High Court has power 
under the Jurisdiction of Courts and Enforcements of Judgments (Amendment ) A ct, 2012 and the Courts 
Supplementary Provisions Acts, 1961 to hear and determine this claim and no proceedings involving the same cause of action are pending in another Contracting State ”.  
 
16. Notwithstanding that the defendant company is domiciled outside the jurisdiction 
in Switzerland, the plaintiff did not follow the procedure prescribed under  
Order  11E of the Rules of the Superior Courts for the service of documents  
abroad .  Instead, the plenary summons was simply sent to the defendant by email 
5 
 
and by t racked post.  It is common case that the plenary summons was actually 
received by the defendant.  The parties are, however, in disagreement as to 
whether the form of service is irregular, and, if so, as to the legal consequences of same.  
17. As appears from the exhibited correspondence, the initial response on the part of 
the in -house counsel for the defendant had been to attempt to enter a 
memorandum of appearance in the Central Office of the High Court .  The reafter, 
the solicitor acting for the plaintiff wrote on 13 November 2018 to explain that as 
the defendant was a company , rather than a natural person, it could not enter an 
appearance in its own right.  Instead , it would be necessary to do so through a 
solicitor.   
18. The in -house counsel for the defendant ha s subsequently explained on affidavit 
that a tactical decision was made at this time not to contest  the proceedings.  See 
paragraph  18 of Mr. Marc Loebekken’s affidavit of 4 August 2020 as follows . 
“I thought of entering an appearance as Legal Counsel of t he 
company because that is what could be done in Switzerland.  
Moreover, the Plenary Summons mentioned the possibility of 
appearing personally as representant of the company.  To my surprise, after having attempted to enter an appearance, I was informed that the Irish legal system would not allow for personal representation and the company ha d to seek an Irish 
solicitor.  I made contact with several different Irish solicitors but they all quoted fees that were beyond the Defendant’s ability to pay, given it s financial position as a start- up.  
Moreover, the firms all explained that Proton could only be refunded the legal fees partially ( 60 to 70%), even in the case 
of success of the defence.  Proton was a relatively small company at that time and didn’t have that kind of money.  Proton weighed the money factor up beside the fact that the claim seemed unstateable and decided not to contest  it.” 
 
19. Having next set out the rationale for saying that the claim was unstateable, the 
affidavit continues as follows at paragraph 20.  
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“In Switzerland, this claim would be rejected by a judge even 
where it wa s not contested, as the civil court applies the law 
ex-officio (article 57 of the Swiss Code of Civil Procedure).”  
 
20. It should be emphasised that this tactical decision w as not communicated to the 
solicitor acting on behalf of the plaintiff.  Rather, the defendant simply did not 
engage further in correspondence with the plaintiff’s solicitor.  Counsel on behalf 
of the defendant has characterised this approach as his client  “going dark”.  
Counsel on behalf of the plaintiff was more blunt, describing the defendant as 
burying its head in the sand.  
21. At all events, for a period of some eighteen months there was no communication 
from the defendant nor any participation in the proceedings.  
22. The solicitor acting on behalf of the plaintiff had written to the defendant 
requesting that a memorandum of appearance in proper form be entered.  No 
response was received.  Thereafter, a motion was issued  on behalf of the plaintiff 
seeking an order directing the defendant to identify the persons behind the email 
user account.  A disclosure order of this type is commonly referred to as a 
“Norwich Pharmacal  order ”, named for the decision of the House of Lords in 
Norwich Pharmacal Co. v. Customs and Excise Commissioners  [1974]  A.C. 133.   
Again , there was no engagement by the defendant.  The disclosure order was 
made by the High Court (O’Hanlon J.) on 21 January 2019.  
23. Some months later, the plaintiff pursued an application for judgment in default of  
appearance.  The motion issued on 20 March 2019.  Having been struck out and 
reinstated, the motion was ultimately heard on 2 July 2020.  The High Court (Meenan  J.) made an order on that date , the operative part of which  reads as 
follows:  
“IT IS ORDERED AND ADJUDGED that the Plaintiff do 
recover against the Defendant such amount as the Court may 
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assess in respect of the Plaintiff’s claim herein for damages 
and the cost of suit such costs to include the costs of this 
Motion and of the assess ment when adjudicated and thus such 
assessment be had before a Judge without a jury and to be set 
down for hearing accordingly with liberty to apply for the purpose of fixing a date for assessment.”  
 
24. It seems that it was only upon receipt of this order tha t the defendant was finally 
moved to take steps to participate in the proceedings.  
25. The defendant issued a motion, pursuant to O rder 13, rule  11 of the Rules of the 
Superior Courts, seeking to set aside the judgment in default of appearance.  This 
motion w as issued on 12 August 2020.  Thereafter, the plaintiff  issued its own 
motion on 4 June 2021 seeking , inter alia , an order pursuant to O rder 8 of the 
Rules of the Superior Courts granting  leave to renew the plenary summons of 
15 October 2018.  
  
PART I  
MOTION TO SET ASIDE  DEFAULT JUDGMENT  
 BASIS FOR APPLICATIO N 
26. There was an initial skirmish between the parties as to whether the application to 
set aside the judgment had been brought pursuant to the correct rule.  The notice of motion cites Order 13, rule  11 of the Rules of the Superior Courts.  Order  13 
addresses default of appearance generally, and rule  11 reads as follows : 
“Where final judgment is entered pursuant to any of the 
preceding rules of this Order, it shall be lawful for the Court 
to set aside or vary such judgment upon such terms as may be just.” 
 
27. Counsel on behalf of the plaintiff opened his submission by insisting that the 
application to set aside should, instead, have been brought pursuant to Order  36, 
rule 33.  This rule addresses the situa tion where a judgment has been obtained 
8 
 
where one party does not appear at the trial.  Counsel cited  the judgment in 
Danske Bank  A.S. v. Macken  [2017]  IECA  117.  It was further submitted that 
“final judgment” has not yet been entered against the defendant in circumstances 
where the assessment of damages has yet to be  carried out.  It is said that Order  13, 
rule 11 is therefore not applicable.   
28. In answer to a dir ect question from the court, counsel confirmed that the logical 
conclusion of his argument is that any application, however formulated, to set aside the default judgment  obtained on 2 July 2020 should await the assessment 
of damages.  Counsel estimated tha t the assessment of damages would necessitate 
a two -day hearing.  This approach would have the practical consequence that the 
parties would first have to incur the significant additional costs of the assessment 
hearing , prior to obtaining a ruling from the  court on whether the default judgment 
should be set aside.  Were the default judgment to be set aside at that late  stage, 
then the plaintiff might well be liable for those additional costs.   
29. Having taken further instructions, counsel for the plaintiff in dicated that his client 
did not now wish to pursue any objection to what counsel  described as a 
“discrepancy ” in the form of the application to set aside the default judgment .   
30. Given that the objection to the basis of the application has not been pursued,  it is 
not strictly speaking necessary for me to make a ruling upon this procedural objection.  Lest the  issue is revived in the context of an appeal, however, I set out 
my findings below.  
31. The application to set aside the default judgment has properly been brought 
pursuant to Order  13, rule  11.  Order 13 and Order 36 address different situations.  
Order 13 is concerned with the position where, as in this case, judgment has been entered in default of appearance.  Such a  judgment will have been entered without 
9 
 
any consideration of the merits of the case.  The only matter remaining 
outstanding is the assessment of damages, and, at the request of the plaintiff, this is to be done by a judge alone without a jury.  The default judgment is still properly characteri sed as a “final judgment” within the meaning of Order  13, 
rule 11, notwithstanding that the assessment of damages has not yet been carried 
out.  Th e judgment i s “final” in that the  issue of liability has been conclusively 
determined against the defendant  and is no longer amenable to appeal.  The 
judgment on the issue of liability cannot now be set aside other than pursuant to 
Order  13, rule  11. 
32. Order  36, rule  33 is concerned with a different situation, namely where there has 
been a trial of the action alb eit that one of the parties did not appear.  The purpose 
of the rule has been authoritatively addressed  by the Court of Appeal in Danske 
Bank  A.S. v. Macken  [2017]  IECA  117.  Hogan  J., writing for the court, first 
recalled that the general rule is that whe re a High Court judge has pronounced 
judgment in a given matter that judgment is final, and the only remedy open to 
the disappointed litigant is to appeal.   Hogan  J. went on then to explain that the 
set aside jurisdiction under Order 36, rule  33 represents  a minor derogation to that 
general rule (at paragraphs  14 and 15) .   
“Such is clearly the general rule.  But Ord.  36, r. 33 may, 
however, be regarded as a minor derogation from that rule, 
designed as it is to deal with the special contingency of where a litigant, whether by reason of oversight or what amounts to 
force majeure, is prevented from actually attending court on the day in question.  Every legal practitioner has had experience of where – whether through oversight, listing 
difficulties, transport failures, sudden indisposition or a medical or family emergency  – a litigant went unrepresented 
and judgment was entered against them in their absence.  Order 36, r.  33 is designed to deal with these types of 
difficulties and to ensure that justice is fair ly done as between 
the parties where events of this kind occur.  In particular, it 
allows the trial judge to set aside the judgment (on terms, if 
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needs be) and proceed to determine the matter where both 
sides are represented without the necessity for an actual appeal.  
 It is, of course, important to stress that a party who deliberately elects not to participate at a particular hearing may not invoke r. 33, at least in the absence of quite particular extenuating circumstances.   […]”.  
 
33. The contingency which has arisen  in the present case does not fall within the 
ambit of Order  36, rule  33.  Rather, it falls squarely within Order  13 and 
Order  13A.  The judgment had been obtained on the basis that the defendant had 
not entered an appearance to the proceedings.  Order 13, rule  11 provides for the 
possibility of setting aside such a default judgment .  The principles governing the 
exercise of this jurisdiction are different to those governing Order  36, rule  33.  
The applicable principles are discussed under the nex t heading below  (at 
paragraph  35 et seq .). 
34. For completeness, it should be recorded that neither party has contended that the 
set aside application should instead have been made pursuant to Order  11E, 
rule 4.  This rule governs, inter alia , cases where proceedings had been issue d for 
service pursuant to Lugano Convention and had been transmitted abroad for 
service under  Order  11E.  The set aside jurisdiction under O rder 11E, rule  4 is 
broadly similar to that under Order  13, rule  11.  The principal distinction is that 
the court must be satisfied that the defendant has disclosed a prima facie  defence 
to the action on the merits , even in cases where the service of proce edings  is 
irregular.   As discussed under the next heading, I am satisfied that the defendant 
has demonstrated that it has a credible defence to the proceedings  which has a 
real chance of success .  Thus, even if Order  11E, rule  4 represents the correct 
basis for the application, its requirements have been satisfied . 
 
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PRINCIPLES GOVERNING  APPLICATION TO SET ASIDE JUDGMENT  
35. Counsel on behalf of the defendant helpfully took the court through the relevant 
authorities in relation to a motion to set aside a judgment in default.  Counsel 
drew attention, in particular, to the different thresholds to be met according to whether the order  in default  had been regular or irregular in form.  
36. Counsel took me to the following passage from the judgment in Moore  v. Dun 
Laoghaire Rathdown County Council [2016]  IESC  70; [2017]  3 I.R. 42 (at 
paragraph  41).  Clarke C.J., having referred to the distinction made in respect of 
a so-called “irregular judgment” and a “regular judgment” in circumstances 
where a party to civil proceedings obtains a judgment in default of appearance , 
then s tated as follows . 
“[…] As is pointed out between paras. 4–34 and 4–56, at 
pp. 236 to 242, in Delany and McGrath, Civil Procedure in 
the Superior Courts  (3rd ed., Round Hall, Dublin, 2012) very 
different considerations are applied by the court in an application to set aside depending on whether the judgment was regularl y obtained or irregularly obtained.  It is clear from 
the authorities cited that a principal element of the reasoning behind that distinction is that a party which has suffered from 
an irregular judgment, i.e., one where the party concerned was not properl y served at all should not be placed in a worse 
position by reason of the fact that a judgment was irregularly obtained than it would have been had no judgment been secured in the first place.  On the other hand a party against 
whom a regular judgment has been obtained, who seeks some leeway from the court in having that judgment set aside so that they might defend the proceedings, is in a more difficult position and needs to meet certain criteria, such as, for example, establishing that they have an arguab le defence, 
before the court will set aside the judgment.  The underlying 
principle behind that distinction is that a party who obtains an irregular judgment should not benefit by it and a party who has an irregular judgment entered against it should not be disadvantaged.”  
 
37. Counsel also referred me to the judgment of the Court of Appeal in McGrath  v. 
Godfrey  [2016]  IECA  178.  There, the principles governing an application to set 
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aside a judgment in default are set out, with enviable clarity , by Irvine  J. as 
follows.  An applicant who seeks to set aside a judgment in default will usually  
be in a position to demonstrate that there was some sort of irregularity in the 
proceedings or the procedure whereby the judgment was obtained.  Where such 
an irregularity is  established , the court will normally set aside the judgment 
without enquiring into the merits of the applicant ’s proposed defence , and will do 
so without the imposition of any terms.   The logic which underpins this approach 
is that, given that the judgment should never have been obtained in the first place , 
the parties should rightly be restored to the position they would have enjoyed had 
judgment not been so obtained.   
38. If, conversely, a court is satisfied that judgment had been obt ained in an entirely 
regular manner, then an applicant who seeks to set aside that judgment faces a 
significantly enhanced burden of proof.  First, the applicant must demonstrate that 
they have a bona fide  defence to the proceedings.  After all, it would b e wholly 
unjust to a plaintiff if a court were to set aside a judgment which they had obtained unless it was satisfied that it was doing so for the purposes of enabling a defendant to mount a credible defence to the proceedings.   It is necessary for the ap plicant 
to demonstrate that their intended defence has  a real chance of success . 
39. Secondly, the applicant must convince the court that, having regard to all of the relevant circumstances , and, in particular the interests of each of the parties, the 
balance of justice would favour the setting aside of the judgment.  
40. Often times, in its efforts to strike a balance between the interests of the parties, the court will set aside the default judgment , but impose terms and conditions on 
the defendant in an effort to provide some type of security for the plaintiff who is 
likely to be prejudiced by the set aside.  
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WHETHER SERVICE WAS IR REGULAR  
41. The plenary summons had been sent to the defendant’s offices by way of tracked 
post and email.  It is readily accepted by the defendant that the plenary summons 
was actually received.  Indeed, the defendant had, initially, attempted  to enter an 
appearance to the proceedings.  
42. Notwithstanding this factual background, it is now submitted on behalf of the 
defendant that the form of s ervice was deficient.  Counsel submits that the 
plaintiff failed to distinguish between (i) the requirements of the Convention on 
Jurisdiction and the Recognition and Enforcement of Judgments in Civil and 
Commercial Matters  (“Lugano Convention ”), which govern substantive 
jurisdiction ; and (ii) those of the Hague Convention on the Service Abroad of 
Judicial and Extrajudicial Documents in Civil or Commercial Matters  (“Hague 
Convention ”), which govern the procedural requirements applicable to the 
service of  proceedings.  Counsel accepts that the Irish Court s have substantive 
jurisdiction to entertain the defamation proceedings under the Lugano Convention.  It is said, however, that the service of the proceedings was irregular 
in that there was a failure to c omply with t he Hague Convention, as given effect 
to under Order  11E of the Rules of the Superior Courts. 
43. It is further submitted, by reference to Cameron v. Liverpool Victoria Insurance Co Ltd [2019]  1 W.L.R. 1471, that it is the service of the summons —rat her than 
the issuance of a summons —which is the act by which a defendant is subjected 
to the court’s jurisdiction . 
44. Counsel also makes the point that service is irregular on the separate ground that the plenary summons itself, rather than notice of the summons, has been served.  
14 
 
This represents a breach of Order  11A, rule  6 which provides that where a  
defendant is not a citizen of Ireland, notice of sum mons and not the summons 
itself shall be served upon him.  Reliance is placed on §3 -60 of Delany and 
McGrath on Civil Procedure  (Round Hall, 4th ed., 2018) and the case law cited 
there for the proposition that i f the summons , rather than notice of the summ ons, 
is incorrectly served, the n the service will be ineffective.  
45. It is said that the breach in this regard is no mere technicality in that the reason 
that plenary summonses  are not served on non- citizens is to respect the 
sovereignty of the State  in which the defendant is domiciled . 
46. In response, counsel for the plaintiff submits that the service of the plenary summons did, in fact, comply  with the requirements of the Hague Convention.  
In particular, it is said that the defendant accepted delivery of the p lenary 
summons voluntarily, and that that brings the case within Article  5 of the Hague 
Convention.  No specific submission was made  in respect of the breach of 
Order  11A, rule  6. 
 
Findings of the court  
47. In truth, the ambit of the dispute between the partie s in respect of service is very 
narrow.  The plaintiff does not challenge the contention that the proceedings should have been served in accordance with the requirements of Order  11E.   
48. In brief, Order 11E envisages that where service of a summons requires  to be 
effected out of the jurisdiction and in a Convention C ountry, the summons is to 
be transmitted to the Central Authority of the State in which service is to be 
effected .  The Central Authority will then either serve the document itself or 
arrange to have it served by an appropriate agency .  A “Convention Count ry” is 
defined , for the purpose of Order  11E, as meaning a country which is party to the 
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Hague Convention, but excludes a country which is a Member State of the 
European Union in which Regulation  (EC) No  1393/2007 is in force . 
49. As a necessary first step  to transmission , a request  must be lodged with the Master 
of the High Court, who is the Central Authority for Ireland.  The outcome of the 
request  differs depending on whether it is made by a privat e party to proceedings 
or by a practising solicitor.  In the case of the former, the Master will, if satisfied that the requirements have been met, forward the request and all accompanying documentation to the Central Authority of the State in which servic e is to be 
effected.   In the case of the latter, the Master will, if satisfied, certify that he has 
authorised the transmission of the request .  The practising solicitor can then 
transmit the request for service directly to the Central Authority of the Sta te 
addressed . 
50. It is common case that the plaintiff did not observe the requirements of Order  11E.  
Instead, the plaintiff’s solicitor by -passed the Central Authority channel entirely 
and purported to serve the plenary summons directly on the defendant.   
51. The only justification offered on behalf of the plaintiff  for having adopted this 
approach to service is to assert that it is authorised under Article  5 of the Hague 
Convention.   
52. To properly understand this assertion , it is necessary to set out the text o f Article  5 
in full  as follows:  
“Article 5  
 
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –  a) by a method prescribed by its internal law for the service of  documents in domestic actions upon 
persons who are within its territory, or  
 
16 
 
b) by a particular method requested by the applicant, 
unless such a method is incompatible with the law of the State addressed.  
 Subject to sub- paragraph  (b) of the first paragra ph of this 
Article, the document may always be served by delivery to an addressee who accepts it voluntarily.  
 If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated i nto, the official language or one of 
the official languages of the State addressed.  
 That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.”  
 
53. Counsel for the plaintiff submits that service is always valid if the relevant 
document is served by delivery to an addressee who accepts it voluntarily . 
54. With respect, this submission is not well founded.  Article  5 is concerned solely 
with circumstances w here the Central Authority in the requested State  has either 
served the document itself or has arranged to have it served by an appropriate 
agency .  Accordingly, the reference in Article 5 to a party accepting delivery 
voluntarily can only be underst ood as  referring to delivery by or on behalf of the 
Central Authority, i.e. it refers to a scenario where, notwithstanding non-
compliance with formal requirements (such as, for example, the requirement for translation), an addressee nevertheless accepts informal  delivery from the Central 
Authority or an appropriate agency.  The  interpretation put forward on behalf of 
the plaintiff is incorrect , and it involves reading the phrase “ delivery to an 
addressee who accepts it voluntarily ” in isolation from what has gone  before.  
This is inconsistent with the “text in context” approach to interpretation.    
55. Article  5 must also be read in the context of Article  6 which provides for the 
Central Authority of the requested State to complete a certificate which states that 
the document has been served (and shall include the method, the place and the 
17 
 
date of service and the person to whom the document was delivered).  This 
reiterates that Article  5 is concerned with service by the Central Authority or an 
appropriate agency.  
56. The p laintiff has not sought to rely on any provision of the Hague Convention  
other than Article  5, and, in particular, has not sought to rely on Article  10 (postal 
channels).  Nor has the plaintiff made any argument based on Order  11E, rule  2(2) 
of the Rules of the Superior Courts to the effect that the form of service employed 
is permissible.  
57. On the basis of the limited arguments advanced to the court  on behalf of  the 
plaintiff , I have concluded that the service of the proceedings was irregular . 
58. For the sake of completeness, I should record that even if —contrary to the finding  
above —the summons had been properly served in accordance with Order  11E, 
the proceedings would have been irregular on the separate ground that the summons itself should have been served.  Where a defendant is not  a citizen of 
Ireland, notice of summons, and not the summons itself, should be served on the defendant .  See §3 -60 of Delany and McGrath on Civil Procedure  (Round Hall, 
4
th ed., 2018) and the case law cited there.  
59. The next questi on which arises is whether the acknowledged fact that the 
defendant received the summons , albeit not in the form prescribed, precludes an 
application to set aside a judgment in default of appearance.  
60. The position initially adopted by the defendant  to these proceedings is deeply 
unattractive.   In effect, the defendant decided not to participate in the proceedings 
on the incorrect understanding that the High Court exercises an ex officio  
jurisdiction.  This should not have happened and was disrespectf ul to the process 
in this jurisdiction.  
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61. Nevertheless, this does not automatically disentitle the defendant to the relief 
sought  in the set aside application .  The requirements of constitutional justice 
require that, save where there are countervailing int erests, a judgment should 
ordinarily only be entered against a party where the merits of the case have been 
considered by the court .  This principle has, of course, to yield to the principle 
that litigation should be dealt with expeditiously and that there  should be finality 
to litigation.  If a party, who has properly been served with proceedings, fails to 
participate in the proceedings, then there must be a mechanism whereby the 
plaintiff can pursue their claim nonetheless.   
62. This is expressly provided for under Order 13.  This allows for judgment to be 
entered against a party where it fails to answer proceedings by entering an 
appearance.  Additional procedural safeguards are prescribed in the case of proceedings which have been issued and served outside the jurisdiction.  Insofar as proceedings predicated  on the Lugano Convention are concerned, these 
safeguards are to be found primarily under Order 11E and Order 13A .  Judgment 
in default of appearance may only be entered with leave of the court , i.e. it cannot 
be entered in the Central Office.  It must be established to the satisfaction of the court that: (a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or  
(b) the document was actually delivered to the defendant or to his residence by another method provided for by the Convention 
and that in either case the service or delivery was effected in sufficient time to enable the defendant to defend.  
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63. Given that the entry of judgment against a party without there being a hearing on 
the merits is  the exception, it is essential that there be full compliance with the 
procedural requirements in relation to service.  It is only where th e court is 
satisfied that the defendant has been given a proper opportunity to appear and 
defend the proceedings, and has failed to do so, that judgment will be entered against them in default.    
64. It is for this reason then that the authorities are clear th at there must be scrupulous 
compliance with the rules  of court  before an application for judgment in default 
of appearance will be successful.  See, for example, McGrath  v. Godfrey 
[2016]  IECA  178 (at paragraph  22) as follows : 
“It is important in this context to note that the Court will 
demand proof of strict compliance with the Rules of Court by 
a party who seeks to stand over a judgment obtained in default of appearance.  This, in my view, is extremely important 
having regard to the potential grave consequences for any defendant against whom judgment is obtained […].”  
 
65. On the facts of the present case, there was no such compliance.  This is not 
changed by the happenstance that the defendant had been notified of the 
proceedings in an irregular manner.  
 
 ALTERNATIVE BASIS FOR SETTING ASIDE  
66. Lest I be incorrect in my finding above that the service of the proceedings was 
irregular and is not cured by the informal receipt of the plenary summons , I 
propose to consider the alternative basis for setting aside the default judgment .  
As appears from the case law discussed at paragraphs  35 to 40 above , the 
threshold to be met on this type of application is higher.  The defendant must 
demonstrate that they have a credible defence to the proceedings , which has a real 
chance of success .  The defendant must also convince the court that, having regard 
20 
 
to all of the relevant circumstances , the balance of justice would favour the setting 
aside of the default judgment. 
67. The principal  relief claimed against the defendant in these proceedings is for 
damages.  Perhaps sur prisingly, the claim includes a claim  for exemplary 
damages.  The plaintiff through its solicitors has quantified the damages in the 
sum of 10 million euro.  
68. Counsel on behalf of the defendant submits that there is a credible defence to the 
proceedings under the Directive on Electronic Commerce  (Directive 
2000/31/EC ).  The Directive on Electronic Commerce  has been transposed into 
domestic law by the European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. No. 68 of 2003)  (“the domestic e- commerce regulations ”). 
69. Reliance i s placed, in particular, on the exemptions and immunities provided for 
intermediary service providers .  An intermediary service provider can benefit 
from the exemptions for “ mere conduit ” and for “ caching ” when it is in no way 
involved with the information transmitted .  This requires among other things that 
the provider  does not modify the information that it transmits; this requirement 
does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission.  
70. The “mere conduit” exemption is provided for under the domestic e -commerce 
regulations as follows (at reg. 16) : 
“(1) An intermediary service provider shall not be liable for 
information transmitted by him or her in a communication network 
if – 
 (a) the information has been provided to him or her  by a recipient 
of a relevant service provided by him or her (being a service consisting of the transmission in a communication network of that information), or  
21 
 
 
(b) a relevant service provided by him or her consists of the provision of access to a communication network, 
 and, in either case, the following conditions are complied with – 
 (i) the intermediary service provider did not initiate the transmission,  
 (ii) the intermediary service provider did not select the receiver of the transmission, and   
 (iii) the intermediary service provider did not select or modify the information contained in the transmission.  
 
(2) References in paragraph (1) to an act of transmission and of provision of access include references to the automatic, intermediate and t ransient storage of the information transmitted in so far as this 
takes place for the sole purpose of carrying out the transmission in the communications network, and provided that the information is not stored for any period longer than is reasonably nece ssary for the 
transmission.  
 (3) This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights.”  
 
71. An exemption is provided in respect of “caching” under the domestic e- commerce 
regulations (at reg.  17) as follows : 
“(1) An intermediary service provider shall not be liable for the automatic intermediate and temporary storage of information which is performed for the sole purpos e of making more efficient that 
information ’s onward transmission to other users of the service upon 
their request, if –  
 (a) that storage is done in the context of the provision of a relevant service by the relevant service provider consisting of the tran smission in a communication network of information 
provided by a recipient of that service, and  
 (b)  the following conditions are complied with –  
 
(i) the intermediary service provider does not modify the information, 
 (ii) the intermediary service provider complies with conditions relating to access to the information, 
 
22 
 
(iii) the intermediary service provider complies with any 
rules regarding the updating of the information that have been specified in a manner widely recognised and used by industry,  
 (iv) the intermediary service provider does not interfere with the lawful use of technology, widely recognised and used by industry to obtain data on the use of the information, and  
 (v) the intermediary service provider acts expeditiously to remove or disable  access to the information it has 
stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network or access to it has been disabled, or that a court or an administrative au thority has ordered such removal or 
disablement.  
 
(2) This Regulation shall not affect the power of any court to make an order against an intermediary service provider requiring the provider not to infringe, or to cease to infringe, any legal rights.”  
 
72. Critically, the concept of “liability” is defined for the purpose of the domestic e -
commerce regulations as exempting an intermediary service provider from 
having to pay damages.  See regulation 15 as follows :  
“A provision of Regulation 16, 17 or 18 providing that a relevant 
service provider shall not be liable for a particular act  shall be 
construed as a provision to the effect that the provider shall not –  (a) be liable in damages or, unless otherwise provided, be liable to be the subject of an order provi ding for  any other form of 
relief, for infringing, by reason of that act, the legal rights of any natural or legal person or, by reason of that act, for 
breaching any duty, or  
 (b) be liable to be subject to any proceedings (whether civil or criminal) by r eason of that act constituting a  contravention of 
any enactment or an infringement of any rule of law.”  
 
73. Reference is made to the judgment in Mulvaney v. Sporting Exchange Ltd 
[2009]  IEHC  133;  [2011]  1 I.R. 85.  There, Clarke J. (as he then was) agree d with 
the broad interpretation given to the definition of “ intermediary service 
providers ” in Bunt  v. Tilley  [2006]  EWHC  407;  [2007]  1 W.L.R. 1243.  
23 
 
74. Counsel submits that the “mere conduit” exemption and/or the “ caching ” 
exemption provide the defendant, as an intermediary service provider, with a full 
defence to the claim on the merits.  A possible draft of the formal defence to be delivered, in the event that the default judgment were to be set aside, has helpfully been  shown to the court.  Counsel further submits that the defence is so strong as 
to justify the making of an application to have the proceedings struck out as frivolous and vexatious.   
 
Findings of the court  
75. I am satisfied that the defendant has demonstrate d that it has a credible defence 
to the proceedings  which has a real chance of success  (within the meaning of 
McGrath  v. Godfrey  [2016]  IECA  178).  More specifically, there are strong 
grounds for saying that the defendant represents a n “intermediary servic e 
provider ” within the meaning of the domestic regulations which transpose the 
Directive on Electronic Commerce (Directive 2000/31/EC ).  If the defendant can 
establish this at trial, then it would be in a position to assert the exemptions or immunities prescribed for the transmission of information in a communication 
network (“mere conduit” ) or the automatic intermediate and temporary storage of 
information (“ caching ”). 
76. In its response to the set aside application, the plaintiff has chosen not to engage with the detail of the Directive on Electronic Commerce .  This does not, of course, 
preclude it from doing so in the event that the proceedings go to full hearing.  As matters currently stand, however, nothing has been urged on behalf of the plaintiff which suggests that there is not a credible defence to the claim for defamation.  In particular, no argument has been advanced to the court as to how the pursuit of a claim for damages for defamation in the order of 10 million euro is consistent 
24 
 
with the exemptions provided for under the domestic regulations (set out earlier).  
As appears, a n “intermediary service provider ” will not normally be liable in 
damages.    
77. It should be emphasised that a claim for damages is different from an application 
for a disclosure order.  It is a separate issue as to whether the provider of an email service is amenable to a disclosure order, requiring it to identify the individuals behind a particular email account.  Such orders are often granted under the 
Norwich Pharmacal  jurisdiction: see, for example, Portakabin Ltd v. Google 
Ireland Ltd [2021]  IEHC  446. 
78. The only authority relied upon by counsel for the plaintiff in respect of the merit s 
of the se proceedings is the judgment of the European Court of Human Rights 
(“ECtHR ”) in Delfi v. Estonia (Application No 64569/09)  (2015)  62 EHRR  199;  
39 BHRC  151.  This judgment concerned defamatory material published in the 
“comments section” of an art icle published on an internet news portal.  The 
internet news portal was owned and operated by the applicant company, Delfi  AS.  
The applicant company had sought, unsuccessfully, to defend defamation proceedings taken against it on the basis, inter alia , that it was merely an 
intermediary service provider.  The domestic courts rejected this defence on the basis that the activities of the applicant company in publishing the comments were not merely of a technical, automatic and passive nature.  The domest ic courts held 
that the fact that the applicant company was not the author of the comments did not mean that it had no control over the comments section. 
79. The ECtHR agreed with the domestic courts ’ assessment.  In particular, the 
ECtHR noted the domestic courts’ finding that the applicant company was a 
professionally managed internet news portal , run on a commercial basis , which 
25 
 
sought to attract a large number of comments on news articles published by it.  
The applicant company had an economi c interest in the posting of comments.  
The ECtHR expressly agreed with the domestic courts ’ finding that the applicant 
company must be considered to have exercised a substantial degree of control over the comments published on its portal. 
80. With respect, th e nature of the activities of the defendant in the present 
proceedings are entirely distinguishable from those of the applicant company in 
Delfi v. Estonia.  There is no allegation that the defendant had been aware of the 
content of the emails before same was brought to their attention by the plaintiff’s 
solicitors in September 2018.  Thereafter, the defendant outlined the procedure to 
report the content of the emails to their “abuse team”.  The defendant also explained that, in accordance with Swiss law, i t was precluded from divulging the 
identity of the account user without a formal process. 
81. In summary, I am satisfied —on the basis of the limited arguments made to the 
court by the plaintiff to date —that the defendant has demonstrated a credible 
defence which has a real chance of success .  It is next necessary to consider 
whether the balance of justice is in favour of setting aside the default judgment. 
82. The weightiest factor against  setting aside the default judgment is , of course, the 
litigation conduct of the defendant.  As appears from the affidavit evidenc e, the 
defendant made a tactical decision not to contest the proceedings.  This was done in the expectation that the Irish Courts would exercise an ex officio  jurisdiction to 
dismiss the claim.  It seems that the Swiss Courts adopt a more proactive role in proceedings and will raise legal issues of their own motion.   
83. The defendant’s approach to the proceedings is to be deprecated.  The Irish Courts have substa ntive jurisdiction over the defamation claim pursuant to the Lugano 
26 
 
Convention.  It was disrespectful of the defendant to ignore the proceedings.  The 
proper course to be followed by a party who is convinced that proceedings taken against it are unstateabl e is to bring a  preliminary  application to have the 
proceedings dismissed  as frivolous and vexatious or as an abuse of process .  If 
such an application is successful, then the party would normally be entitled to an order for costs in its favour in accordance with the principles prescribed under Part 11 of the Legal Services Regulation Act 2015.   
84. A party who makes a deliberate and conscious decision simply to disregard 
proceedings has no right to expect to be shown indulgence if judgment is entered 
against them in default of appearance.  
85. There are, however, a number of countervailing factors which tilt the scales 
towards setting aside the default judgment.  The first of these is the strength of the intended defence.  On the basis of the arguments to date, the  intended defence 
not only meets the minimum threshold for an application to set aside, but 
represents a very strong defence.  The defence is predicated largely on matters of law, rather than of fact, and thus the court is in a position even at this interl ocutory 
stage to make some assessment of the probable outcome of the case.  See, by analogy, the approach taken to interlocutory injunctions in Merck 
Sharp & Dohme Corporation v . Clonmel Healthcare Ltd [2019]  IESC  65. 
86. The potential prejudice to the defenda nt of allowing the default judgment to stand 
is far greater than any  prejudice to the plaintiff in  setting it aside.  The claim for 
damages is enormous: the plaintiff has sought aggravated and exemplary damages and has mooted a sum  of 10 million euro.  The  plaintiff has expressly pleaded in 
its statement of claim that this figure represents the reputational loss to the company which, it is further pleaded, competes on a daily basis for multimillion 
27 
 
euro road construction projects and is now prejudiced in it s legitimate business 
affairs as a direct consequence of the defendant’s negligent role in hosting and 
protecting their rogue client’s defamatory publications.   
87. If the default judgment stands, then the defendant is  at risk of having to pay a 
significant s um by way of damages i n circumstances where it says it has a full 
answer to the proceedings under the Directive on Electronic Commerce . 
88. If, conversely, the judgment is set aside, then the plaintiff suffers the prejudice of losing the benefit of the default  judgment.  In assessing this prejudice, regard must 
be had to the chronology of the proceedings.  Although these proceedings were 
instituted in October 2018, there was delay on the part of the plaintiff in pursuing 
its application for judgment in default of appearance.  Judgment was only entered on 2 July 2020.  The motion seeking to set aside the judgment issued some five 
weeks later on 12 August 2020.  It follows, therefore, that the plaintiff had only 
had the benefit of the default judgment for a very s hort period of time.  Moreover, 
the judgment had not been capable of immediate execution in that damage s 
remained to be assessed.   
89. Any prejudice to the plaintiff can be ameliorated by the making of an appropriate costs order.  The plaintiff’s position in respect of the limitation period for defamation proceedings can be safeguarded by granting leave to renew the plenary summons.  This is addressed under the next heading. 
90. Finally, in reaching this conclusion I have had regard to the judgment of the High Court (Binchy  J.) in Grovit  v. Jan Jansen [2018]  IEHC  22 (which was opened by 
counsel on behalf of the defendant).  This judgment also involved a case where a defendant to defamation proceedings, who had notice of proceedings, took a tactical decision to igno re the proceedings .  The defendant in that case also 
28 
 
applied to set aside a default judgment on the grounds, inter alia , that the service 
of the proceedings had been irregular.  The High Court set aside the default 
judgment on the basis, first, that there had been irregularities in the manner in which judgment was obtained; and, secondly, that the defendant had a defence which ha d a good prospect of success . 
91. Whereas each application to set aside a default judgment must be decided on its own specific facts, it is to be noted that the High Court in Grovit  v. Jan Jansen  
was prepared to set aside the judgment notwithstanding the defendant’s initial 
decision to ignore the proceedings.  
 
 
PART II  
MOTION SEEKING TO RENEW SUMMONS  
 DISCUSSION  
92. The default position is t hat a plenary summons should be served within twelve 
months of the date of the issuance of the proceedings.  The summons does not 
become a “nullity ” after that date, but it would not be in force for the purpose of 
service after that date unless  renewed by leave of the court  (see, by analogy, 
Baulk  v. Irish National Insurance Company Ltd [1969]  I.R. 66 at  71). 
93. The limitation period generally applicable to defamation proceedings under the 
Statute of Limitations has been reduced to one year by the Defamation Act 2009.  This period may be extended to two years in the interests of justice.  If the service 
of the proceedings in the present case is set aside, it would be too late now for the plaintiff to issue fresh proceedings within the limitation per iod.  This is because 
the emails complained of were published in 2018.  The claim for defamation 
29 
 
against the defendant would be statute barred, unless the plenary summons in the 
present proceedings is renewed.  
94. Order  8, rule  1(4) of the Rules of the Superio r Courts provides that a court may 
order a renewal of the original summons if satisfied that there are special 
circumstances which justify an extension, such circumstances to be stated in the court’s order.    
95. The Court of Appeal, in Murphy  v. Health Servic e Executive [2021]  IECA  3 (at 
paragraphs  69 to 78) , has explained the nature of the test under Order  8, rule  1(4) 
as follows : 
(i). A single test is to be applied, namely, whether there are special 
circumstances which justify an extension.  This test governs the grant of leave to renew.  There is no separate requirement to satisfy the court there 
is “good reason”  to extend time for the making of an application for leave 
to renew .   
(ii). There is not a second tier or limb to the test.  The ne ed for the court to 
consider the interests of justice, prejudice and the balancing of hardship is encompassed by the phrase “special circumstances [which] justify extension”.  Thus , there may be special circumstances which might 
normally justify a renewal,  but there may be countervailing circumstances, 
such as material prejudice in defending proceedings, that when weighed in the balance would lead a court to decide not to renew.  The High Court should consider and weigh in the balance all such matters in coming to a just decision. 
(iii). The court should consider whether it is in the interests of justice to renew the summons, and this entails considering any general or specific prejudice 
30 
 
or hardship alleged by a defendant, and balancing that against the prej udice 
or hardship that may result for a plaintiff if renewal is refused.   
96. In the present proceedings, the plaintiff has brought, as a fall back, an application 
for leave to renew the summons.  The logic of this application is that, in the event 
that the initial service of the proceedings were found to be irregular, the plaintiff 
wishes an opportunity to serve a renewed summons on the defendant.  
97. Given the fact that this application is a fall bac k only, the affidavit in support of 
same is not, perhaps, as full as one might otherwise expect.  Nevertheless, the 
broad gist of the concerns raised are evident from the supplemental affidavit 
sworn by the plaintiff ’s solicitor.  In particular, this affid avit explains the potential 
difficulties which would arise in respect of the Statute of Limitations .  The 
chronology of events in the present case is such that a finding by this court that 
the proceedings should be set aside as having been irregularly served, would have the consequence that it would be too late thereafter for the plaintiff to issue a fresh 
set of proceedings.   
98. Counsel on behalf of the defendant suggests that any prejudice in this regard is minimised by the fact that there are already, in b eing, a set of proceedings in the 
name of the managing director of the plaintiff company, Mr. Quinn.  Counsel 
further submits that the fact that a claim would otherwise be barred under the Statute of Limitations is not normally regarded as a good reason for granting leave 
to renew a summons.  
 
 
FINDINGS OF THE COURT  ON RENEWAL  APPLICATION  
99. It seems to me that the same underlying principle which govern s the defendant’s 
application  to set aside the default judgment is equally relevant  to the plaintiff ’s 
31 
 
applic ation  to renew the summons .  The principle is that the courts should lean 
towards deciding cases on their merits where this can be done consistent ly with 
the requirement for expedition in litigation  and without prejudicing the rights of 
the other parties .  (See, by analogy, McGuinn v. Commissioner of A n Garda 
Síochána [2011]  IESC  330).  The consequence of refusing to renew the summons 
in this case would be that the plaintiff ’s claim would, in effect, have been shut out 
without any hearing on the merits.  It may be, following either a full trial of the 
action or an application to strike out the proceedings as frivolous and vexatious 
(which has been presaged by counsel for the defendant), the claim would 
ultimately have been dismissed  in any event .  That is,  however, a very different 
matter from ruling that the claim must be excluded in limine .   
100. It is correct to say —as counsel for the defendant does —that the fact that 
proceedings will be barred under the Statute of Limitations is not , in itself , a 
justification for renewing a summons .  The Court of Appeal has, however, 
explained in Murphy  v. Health Service Executive [2021]  IECA  3 (at 
paragraphs  110 to 111) that, in determining where the balance of justice or 
hardship lies, it is appropriate to consider the likely consequences for a plaintiff 
of a refusal to renew from the point of view of the operation of the Statute of Limitations . 
101. The facts of the present case are truly exceptional.  Given the events of September 
and October 2018, it had been reasonable for the plaintiff to assume that service of the plenary summons had been effected.  No objection had been taken by the defendant at that time as to the form of service.  Indeed, the defendant had, initially, attempted to enter an appearance to the proceedings.   The service of the 
summons has since been found to be irregular on technical grounds  only .   
32 
 
102. This is not a case where a plaintiff failed to make reasonable efforts to serve the 
proceedings within the twelve -month period allowed under the Rules of the 
Superior Courts, with the result that there is now a difficulty under the Statute of Limitation s.  Rather, these proceedings were issued promptly on 15 October 
2018, within a matter of  months of the publication of the allegedly defamatory 
email s.  Notwithstan ding that the service was irregular, it is a fact that the 
defendant has been on notice of the defamation proceedings since 18 October 
2018 at the latest .  This is highly significant.  The case law indicates that one of 
the factors which can be taken into account on a renewal application is that a 
defendant was on notice of the proceeding s, notwithstanding that same had not 
been formally served .  Such informal notice allows a defendant to, for example, 
preserve such records as may be relevant to the defence  of the proceedings , or, in 
the case of a professional, to notify their insurers.  
103. It would be contrary to the interests of justice to deny the plaintiff an opportunity 
to regularise service now.  If the summons is not renewed, then the plaintiff’s claim fo r defamation would be statute barred.  This would confer an unjustified 
windfall on the defendant.  In effect, the defendant would be rewarded for having failed to make any objection at the time to the form of service , and for having 
chosen to ignore the proceedings thereafter.  Such an outcome would be an affront to the interests of justice.  
104. The application to renew the plenary summons is therefore allowed.  
 
 
33 
 
CONCLUSION AND FORM OF ORDER 
105. The courts demand proof of strict compliance with the rules of court by a party 
who seeks to stand over a judgment obtained in default of appearance  
(McGrath  v. Godfrey  [2016]  IECA  178 (at paragraph  22)).  
106. On the basis of the limited arguments advanced to the court on behalf of the plaintiff, I have concluded that the servic e of the proceedings was irregular.  First, 
service was not effected in accordance with Order  11E of the Rules of the 
Superior Courts .  Secondly, the fact that the plenary summons itself, rather than 
notice of the summons, had been sent to the defendant re presents a breach of 
Order  11A, rule  6 of the Rules of the Superior Courts. 
107. Whereas it is common case that the defendant did actually receive the plenary summons, judgment in default of appearance may only be properly entered where there has been scrupulous compliance with all procedural requirements.    
108. Even if , contrary to the finding above, service of the plenary summons had been 
effective, the balance of justice favour s the setting aside of the default judgment  
for the reasons set out at paragraphs  75 to 91 above .  The defendant has 
demonstrated that it has a credible defence to the proceedings , which has a real 
chance of success .  It would be disproportionate to allow the default judgment to 
stand having regard to (i)  the existence of what appears to be a very strong 
defence under the domestic regulations implementing the Directive on Electronic Commerce (Directive 2000/31/EC ); and (ii)  the balance of prejudice as between 
the plaintiff and the de fendant.   
109. Accordingly, the default judgment entered on 2  July 2020 will be set aside 
pursuant to Order  13, rule  11 and Order  13A of the Rules of the Superior Courts.  
Any potential prejudice to the plaintiff will be mitigated by the renewal of the 
34 
 
plenary  summons and the making of appropriate costs orders.  The Norwich 
Pharmacal  order granted on 21 January 2019 should also be set aside  in 
circumstances where the proceedings were not properly served.  Moreover, the 
proofs for a disclosure order, as summaris ed in Board of Management of Salesian 
Secondary School  v. Facebook Ireland Ltd [2021]  IEHC  287 (at paragraphs  20 
to 24), had not been met.  
110. The plaintiff’s application to renew the plenary summons pursuant to Order  8 of 
the Rules of the Superior Courts is allowed.  It is in the interests of justice that the 
plaintiff be afforded an opportunity now to serve the summons in compliance 
with the Rules of the Superior Court s, and that it retain the benefit of the date of 
the institution of the proceedings on 15 October 2018 for the purpose of the 
limitation period.   The order of the court will record that the “special 
circumstances” are those set out at paragraphs  99 to  104 above.  
111. Insofar as costs are concerned, it is a condition of the order setting aside the 
default judgment and the Norwich Pharmacal  order that the plaintiff should 
recover as against the defendant the adjudicated costs of the applications  on 
21 January 2019 and 2 July 2020, respectively .  These costs were incurred as a 
result of the defendant’s failure to engage with the proceedings earlier.  The costs associated with the drafting of the plena ry summons and the statement of claim 
are not recoverable as part of this costs order.  This is because such costs would have had to be incurred even if the defendant had engaged with the proceedings 
from the outset.  Such costs fall to be allocated by the trial judge.  
112. Insofar as the costs of the two motions heard on 20  July 2021 are concerned, my 
provisional view as to the appropriate costs order is set out below.  The provisional view is predicated on the assumption that the motions are subject to 
35 
 
Part 11 of the Legal Services Regulation Act 2015.  Any costs order will be 
subject to a stay in the event of an appeal, and subject to the proviso that, in default 
of agreement between the parties, costs are to be adjudicated upon under Part  10 
of the Legal Serv ices Regulation Act 2015.   
113. The plaintiff would appear to be  entitled to the costs of the motion to renew the 
summons under Order 8 of the Rules of the Superior Courts.  This is because the plaintiff has been “entirely successful” in this application  notwi thstanding the 
defendant’s opposition to same .  Further, it is at least arguable that the application 
to renew would not have been necessary at all “ but for ” the failure of the 
defendant to engage with the proceedings.   
114. The plaintiff would also appear to be entitled to the costs of the motion to set aside the default judgment.  Whereas the plaintiff did not ultimately succeed in its opposition to the motion, it would have been necessary for the defendant to bring the motion before the court even had the pl aintiff consented to same.  
Further, one of the considerations to be taken into account on a costs application is litigation conduct.  For the reasons explained earlier, the initial approach of the defendant to these proceedings is to be deprecated.  Subject to any submission which the defendant may make, it would seem reasonable to mark the court’s disapproval by awarding the costs of the motion against the defendant. 
115. If either party wishes to contend for a different form of costs order, short written submissions should be filed by 10 October 2021.  I will list the matter before me 
on 20 October 2021 at 10.30 a.m. for final orders.  
 
Appearances  
Sean Corrigan for the plaintiff instructed by Sharon Oakes Solicitor 
Anthony Thuillier for the defendant instructed by William Fry Solicitors