European Litigation - Commercial, Financial and Contractual Disputes and Claims

The Rules of the Superior Courts in Ireland have been amended significantly by new amending Rules which were introduced on the 1st of October 2016. The amending Rules have not as yet commenced, but it is anticipated that this will occur within the next few months. The new Rules are contained in two Statutory Instruments Nos. 254 and 255 of 2016 and essentially extend the practice and procedures adopted in the Commercial High Court in Ireland to Chancery and non-jury actions. The thrust of the new Rules is to confer greater control by the Judiciary over the conduct of commercial claims and disputes through the High Court. A litigant will therefore have the option at the outset, of choosing to bring an action in Ireland in the Commercial High Court or in the High Court proper. The distinction between these Courts will dissolve to a large extent, given that the provisions of the new Rules have been in operation in the Commercial High Court for over 10 years.

Statutory Instrument No. 255 of 2016 provides for the management of non-jury and chancery proceedings through:-

1. Pre-trial directions;
2. Case management conferences;
3. Pre-trail conferences.

The case management and pre-trial conferences shall be directed by a list Judge and a Registrar who will provide directions to litigants to include:-

• Setting timetables for completion of Pleadings;
• Directing preliminary or modular trials;
• Meeting of expert witnesses.

Pre-trial directions are not mandatory and will only be provided on the application of a litigant.

Pre-trial conferences are mandatory and will come into operation once an action has been set down for trial. This affords the Judge an opportunity of considering the issues to be tried, ensure that they are completed and that the matter is ready to go to trial. At that stage he will fix a date for hearing. The Judge presiding over the pre-trial conference will also hear the action.

Rule 17(1) of Statutory Instrument No. 255 of 2016 introduces the concept of witnesses statements being exchanged summarising their evidence, not later than 30 days before the trial. Expert reports are to be dealt with in the same way.

Expert Evidence

The new Rules now require that where parties intend to call expert evidence, the intention must be pleaded in the statement of claim or defence. The expert’s qualifications and matters upon which he/she intends to give evidence must also be contained in the pleadings. There is also a requirement on experts to acknowledge in their reports, their duty to assist the Court and to disclose any financial or economic interest of any institution with which the expert is connected. There is also an obligation on them to disclose their fees for participating in the action.

It is open to the Court to determine the extent of evidence to be given by experts and to limit their evidence to that which is reasonable required to enable the Court to determine the proceedings. Litigants are restricted to calling one expert only in any particular field of expertise, except by direction of the Court. The Court also has power to provide for the appointment of a single joint expert and a party can submit written questions to an opposing party’s expert witness or to the single joint expert. A failure to cooperate can give rise to cost implications. The concept of expert “hot tubbing” can also be directed by the Court where the Judge requires the opposing experts to be sworn in and debate points of evidence with one another.

Time management of trials

One of the more controversial change in the Rules relates to the new powers given to the Court to regulate the time spent on issues at the trial. The Judge can therefore control the precise allocation of time for each element of a trial.

Modular trials

Under the new Rules, Judges can direct that different questions of fact be determined in different modules and can provide directions to the parties for this purpose.

Conclusion

As can be seen, when coming into force, these changes to the Rules of the Superior Courts will serve to give a greater degree of control to Judges throughout the development of a case. It remains to be seen how the new Rules will operate in practice and what impact they will have on the costs of litigation. However, one benefit may well be the speed with which litigation can be determined and they should serve to negative the ability of a reluctant litigant be it Plaintiff or Defendant to drag out the action.

The introduction of the new Rules will impact on practice and procedure within the High Court and are likely to fast-track legal actions in Ireland for the benefit of litigants.

Copyright © Gerard H. Walsh, McKeever Solicitors, 30 November 2016.

This article is a general review of the law on the subject and is not intended to be a complete statement of the law. Specific legal advice must be sought on a case by case basis. For further information, please contact Gerard Walsh.