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Ask Buachaill Your Own Question
Buachaill
Buachaill, Barrister
Category: Republic of Ireland Law
Satisfied Customers: 10710
Experience:  Barrister 17 years experience
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If your solicitor has failed to file your defence in time due

Resolved Question:

If your solicitor has failed to file your defence in time due to the solicitors neglience and without your knowledge are you entitled to have a court order denying a defence being lodged due to lateness lifted
Submitted: 2 years ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 2 years ago.
1. I regret to say that in circumstances, where a solicitor failed to file your defence in an action in time, you now have a cause of action in negligence against the solicitor and his insurers, in place of having the ability to defend the proceedings. Essentially, your defence has now been converted into a right of action against the negligent solicitor. A court will not allow you to file a defence out of time, unless it exercises its discretion in your favour. However, as a general rule, a court will not exercise its discretion merely because a solicitor has been dilatory and negligent in not filing a defence in time. There must be some additional element whereby justice requires the filing of a late defence. Instead you have your cause of action against the negligent solicitor.
Customer: replied 2 years ago.

Am I not entitled to fair procedure under the Irish constitution,which I have not received in this case?

Expert:  Buachaill replied 2 years ago.
2. I appreciate that you have a right to fair procedures under the Irish Constitution. However, like all rights, this right to fair procedures is not absolute, but is subject to other people's countervailing rights. In all interactions, there are generally several different rights, including the right to fair procedures involved. This means that the courts must make rules which reconcile these rights amongst the different rights holders. The discretion the court exercises in deciding whether to admit a defence out of time is one example of a rule which decides which of several rights will triumph in a particular instance. The rule effectively decides whether one party's right to litigate and gain compensation will trump another person's right to defend the litigation. No one person's rights are absolute. The court effectively makes rules to decide who will be paramount in any particular instance. 3. Here, I would first suggest you get a new solicitor to represent you. The current solicitor who was negligent cannot properly represent you as he has a conflict between his own interest in avoiding a negligence claim and your interest in a successful outcome. Then get the new solicitor to put down a motion setting aside the order preventing you putting in a defence. If necessary, appeal this order if it is refused, to the Court of Appeal or the Supreme court, as you have nothing to lose. In the meantime, you should get this new solicitor to institute negligence proceedings against the old solicitor so you are not at a financial loss due to his failure to file a defence in time.
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