Overall, the objective of the reforms is to promote early settlement and reduce the time to resolution. Most of the changes are modelled on the successful processes utilised by the Irish Commercial Court since 2004.
However, there have been some impediments to resolution which will hopefully be resolved during 2017.
Two separate sets of amendments to the Rules of the Superior Courts were introduced in 2016. One addressed pretrial case management and the other, the actual conduct of trials. Collectively they sought to:
- Create the legal basis for the flexible and proportionate application of case management processes to most disputes in Ireland,
- Mandate the exchange of expert and factual evidence,
- Mandate pre-trial conferences,
- Streamline the use of experts at trial and require a degree of cooperation between them,
- Manage the length of pleadings and trials.
While the rules on the conduct of trials, which came into force in October 2016 are in operation, the rules regarding pre-trial case management have been postponed, due to the lack of judges available to case manage High Court proceedings; the central tenet of the new pre-trial rules.
The shortage of judges has become a politicised issue. In late 2014, a Court of Appeal was interposed between the High Court and the Supreme Court.
While this was a development aimed at reducing the length of time it takes to deal with High Court appeals, a short-term consequence has been the promotion of a considerable number of High Court judges to the bench of the Court of Appeal, denuding the High Court bench of many experienced judges.
Over the course of the last two years, a number of new High Court judges have been appointed to replace those promoted judges. However, that flow of new judicial appointments has been interrupted by an objection by a government minister to any new judicial appointments until the establishment of a new and reformed judicial appointments body, the terms and membership of which are still subject to political agreement.
This is the issue which has led to a shortage of High Court judges mentioned above which, in turn, has led to the President of the High Court postponing the introduction of the case management rules. However, it is expected that the issue will be resolved in 2017, allowing the case management rules to be implemented alongside the conduct of trial rules which now apply.
None of these issues have materially affected the orderly running of the Commercial Division of the High Court, which continues to hear business disputes with a value of more than €1 million. In such disputes, the processes remain swift and the use of mediation is also widespread.
Most significant businesses in Ireland would avail of the Commercial Court for dispute resolution given the process efficiency enjoyed. However, those such as banks and insurers which have a high volume of litigation falling outside the remit of the Commercial Court, are more impacted by the delays to the reform process.