Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

Starting proceedings

There is no required pre-action protocol in Ireland (other than in personal injuries actions). However, a warning letter is generally sent prior to the issue of proceedings as a protective measure in relation to costs. Proceedings are commenced in the High Court by issuing and serving an originating summons. The most commonly issued summons is a plenary summons, unless the action is for the recovery of a debt where a summary summons is issued. (See question 17 for details on the initial exchange of pleadings between the parties.)

Subsequent stages

The exchange of documents process (discovery) begins when pleadings have closed (for further details on the discovery process, see question 35). Once discovery has been completed, the claim is scheduled for trial.

Role of the courts in progressing the case

The Commercial Court rules alone provide for case management. Once a case is admitted to the Commercial List, court directions are issued setting out a strict timetable for the exchange of pleadings, discovery and other pretrial steps. The solicitor for the party making the application to the Commercial List must give an undertaking that the Court’s directions will be complied with in full. Cases are regularly listed before the Commercial Court to monitor their progress. Increasingly, case management occurs in the other lists of the High Court through applications for directions to the relevant High Court judge or the president of the High Court.

Penalties for non-compliance

The Irish Superior Courts Rules stipulate specific time limits regarding the exchange of pleadings and all other steps in the litigation process. Where these time limits are not complied with, it is open to the affected party to seek relief from the court through an application to dismiss a claim.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

Yes. The RSC provide that the names of additional parties may be added, whether they be plaintiffs or defendants who ought to have been joined, or who need to be joined to enable the court to effectually adjudicate on and settle all the questions in the case before the court.

If a defendant believes another party is the party responsible or jointly responsible for the plaintiff’s claim and so should be held responsible should the plaintiff succeed, he or she can join that party to the proceedings with the permission of the court. (See question 26 for further details on joining third parties.)

Consolidating proceedings

Can proceedings be consolidated or split?

Causes or matters pending in the High Court may be consolidated by order of the court on the application of any party (whether or not all the parties consent to the order).

The Commercial Court has specific provisions for the ‘consolidation of the proceedings with another cause or matter pending in the High Court’. This order can be made by the judge’s own motion or on the application of either party, and will be done where it appears convenient for the determination of the proceedings in a manner that is just, expeditious and likely to minimise the cost of those proceedings.

Modular trial

In certain circumstances, a court may depart from the traditional unitary model of trial and direct that the issues be tried in a particular sequence to be heard in separate modules. There is a distinction to be drawn between the trial of a preliminary issue and a modular trial of all the issues. Determining a preliminary issue in respect of a particular legal or factual question should be adopted with the greatest of care and involves separating that issue from others in the action where the preliminary issue involved will be (largely) determinative of the case at hand. By contrast, where issues are tried in a modular trial, the court will hear all matters relevant to those issues, be it fact or law, and come first to a conclusion on those issues.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

There are two burdens of proof to be satisfied: the legal burden of proof and the evidential burden of proof. In a civil action, the standard of proof is on the balance of probabilities. The legal burden of proof is borne by the person asserting a fact. This means that, on balance, while there could still be a reasonable doubt, one version of events is marginally more credible than the other version of events. This is lower than the standard of proof used in criminal cases, which is beyond reasonable doubt.

The evidential burden of proof is an obligation to adduce sufficient evidence on the facts in issue to justify an affirmative finding by a trier of fact such as a judge but not necessarily to require such a finding. At the conclusion of the claimant’s case, he or she must have produced sufficient evidence to compel the other side to rebut the allegations or else the claim will be dismissed by the judge.

How does a court decide what judgments, remedies and orders it will issue?

The type of judgment, remedy or order a court will decide to issue will depend on the relief sought by the plaintiff and also on the types of relief open to the court to grant in a particular action.

Evidence

How is witness, documentary and expert evidence dealt with?

The disclosure of documents between the parties in Irish litigation is known as discovery and usually takes place once the pleadings have closed. The rules governing this process are set out in Order 31 of the RSC. Each party issues a written request for voluntary discovery from the other party of specific categories of documents now or previously in its possession, power or procurement that are relevant to the dispute. This request must comply with the following requirements:

  • parties must stipulate the exact categories of documents that they require;
  • requests must be confined to documents that are material to the issues in dispute and necessary for the fair disposal of the proceedings or for saving costs; and
  • a reasonable amount of time must be provided for discovery to be made.

If voluntary discovery is agreed, the agreement between the parties has the same effect as a court order. In the absence of an agreement, the court can order discovery pursuant to applications by the parties.

Once discovery has been agreed or ordered, the documents are disclosed in a two-stage process: parties disclose on affidavit the existence of documents relevant to the proceedings; and the documents are then made available for inspection, unless exempt from production for reasons of legal privilege.

In reality, copies of the documents are usually provided to the other party rather than an inspection taking place. If the parties fail to make discovery as agreed or ordered, applications can be brought to have the claim dismissed or defence struck out and the parties could be liable for an attachment order. Due to the increasing numbers of complex commercial disputes being litigated in the Irish courts and discoveries involving large volumes of electronically stored information, there has been a significant increase in electronic discovery (e-discovery). Although e-discovery is subject to the same general principles and rules as traditional discovery, additional practical considerations have emerged regarding proportionality and reasonable efforts in making discovery. These principles have emanated from recent case law involving high-profile commercial disputes.

Oral evidence

Evidence at trial is normally given orally by witnesses on oath or affirmation. However, the court, in cases involving affidavit evidence, may at any time order that particular facts be proved by affidavit, or that the affidavit of any witness should be read out in court. The Commercial Court Rules provide that a claimant and the defendant must serve on the parties to the proceedings written, signed and dated statements of witnesses of fact and expert witnesses, setting out the essential elements of their evidence or expert opinion. This evidence and expert opinion are often treated as that person’s evidence-in-chief at the hearing. Witnesses are subject to cross-examination following examination-in-chief. Cross-examination can be carried out on affidavit evidence, although a notice to cross-examine must be served in advance.

Expert evidence

Experts are appointed by the parties rather than the court. The role of an expert is to assist the court by providing an honest and unbiased opinion on technical aspects of a dispute. The Commercial Court encourages parties’ experts to consult with each other to reach agreement on any matters that can be narrowed down with a view to agreeing the evidence that will be relied on at trial. An expert may reply to the other party’s expert report when giving oral evidence and can be cross-examined on his or her own evidence or reply.

Recent rules introduced by Statutory Instrument 254/2016 give judges in the other lists of the High Court power to regulate how expert evidence can be adduced and the duties of expert witnesses. These rules also introduce to Ireland the concept of hot tubbing. Hot tubbing is a debate between experts where two or more parties intend to call experts who may contradict each other in their reports or statements. Under the new rules, the Court can also require the experts to meet privately to discuss their proposed evidence (without the presence of any party or any legal representative).

How does the court deal with large volumes of commercial or technical evidence?

In a lot of cases, it is agreed by the parties that, unless issue is taken with the authenticity of a particular document, documents that are discovered in proceedings are agreed by the parties to be admissible without proof of their contents or execution.

Documents admitted on this basis are still subject to the rules on evidence governing admissibility, including the hearsay rule. Therefore, these documents will not be admissible to prove the truth of their contents unless the exception to the rule on hearsay applies. To counter this difficulty, in cases that feature large amounts of documents (in particular, those that have been admitted to the Commercial Court), it is agreed between the parties that the documents that are the subject of the agreement are also admitted as prima facie evidence of the truth of their contents as against the party who created the original of the document in question. Documents where the original was created by another party to the proceedings or a non-party will not be so admitted.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

Evidence can be taken voluntarily from a witness in one jurisdiction for use in proceedings in another jurisdiction. For a witness to be compelled to give evidence, the applicable rules depend on whether the other jurisdiction is within or outside the EU.

Within the EU

To compel evidence from a witness in an EU member state, Regulation (EC) No. 1206/2001 on cooperation between the courts of the member states in the taking of evidence in civil or commercial matters allows the court of one member state to request the court of another member state to take evidence for use in proceedings in the court of the former member state. If a party to litigation in another member state seeks evidence from a witness resident in Ireland, that request is made to the Dublin Metropolitan District Court (the designated requested court) or the Circuit and District Court Operations Directorate (the designated Central Body). The Circuit and District Court Operations Directorate accepts forms from member states in English, and only by post, fax or email. If the order is granted, a subpoena to examine a witness is issued.

Outside the EU

Ireland is not a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, and the taking of evidence in Ireland for use by a tribunal or court in a non-EU member state is regulated by the Foreign Tribunals Evidence Act 1856 (1856 Act). Under the 1856 Act, an Irish court may, on the application of a foreign tribunal, direct that a witness in Ireland, over which it has jurisdiction, attend to give evidence for use in the foreign proceedings. Proceedings must be ongoing before a request for evidence can be made (1856 Act). A letter of request must be issued from the foreign court to the Irish court requesting assistance by directing the Irish witness to attend before it to give evidence. Alternatively, a request may be forwarded by an embassy of the state where proceedings are pending to the Irish Department of Foreign Affairs, which arranges for a High Court application to be made by the Chief State Solicitor. The application is typically made ex parte and is then served on the witness. The examination is overseen by an examiner appointed by the Irish court and is subject to Irish evidential rules.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Evidence must be relevant; it must be admissible and should not normally contain hearsay evidence, opinions or repetition. Any witness is liable to be cross-examined. All parties to an action have the right to cross-examine any witness not called by them. If evidence is given on affidavit, it is open to the other side to require the deponent to appear in court for the purpose of cross-examination.

Where both parties intend to call expert witnesses, traditionally, their statements are exchanged and the court will, in certain instances, suggest that the experts should meet with a view to seeing what they can agree on and what they cannot agree on. In addition, the court can raise queries that it would like the experts to address and direct that a joint document should be submitted to the court outlining what they have agreed. The judge dealing with the case will then know in advance of the trial what has been agreed and what is in dispute.

In general, for a document to be received into evidence, the party must prove the contents of the document and, in some instances, the party must prove that the document was properly executed. As discussed in question 36, in cases with large amounts of documentary evidence, the parties agree to admit the documents into evidence without further proof.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

The Commercial Court is designed to provide an expeditious, efficient and effective mechanism for dealing with commercial litigation cases. Cases are dealt with swiftly in the Commercial Court: according to Commercial Court statistics, 90 per cent of cases are decided within one year.

The length of cases in the High Court will depend on the complexity of the case and the backlog of cases before the Court.

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

The court can strike out a party’s pleadings, either in whole or in part, if it is satisfied that the pleadings are unnecessary, scandalous, disclose no reasonable cause of action or defence, or are frivolous and vexatious.

The party seeking the order must file and serve a notice of motion supported by an affidavit, explaining the basis for the order being sought. The other party can then file a replying affidavit. Once the affidavits have been exchanged between the parties, the matter is determined at a hearing.

There are other procedural mechanisms that can be used to clarify the issues for trial, including the service of interrogatories requiring the other party to answer specified questions, and the service of a notice to admit facts. Parties can also apply to strike out issues in whole or in part or for orders requiring the trial of a preliminary issue before the action as a whole proceeds.

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

As noted in question 15, third parties are not permitted to fund litigation or pay adverse costs.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

In recent years, there has been a significant increase in electronic discovery in the context of complex commercial litigation. As a result, additional practical considerations have emerged regarding proportionality and reasonable efforts in making discovery. The Irish Court Rules specifically make provision for the parties to a dispute to seek electronically stored information from one another in searchable form. A discovery audit file is typically maintained by the parties to record decisions taken in respect of relevance and privilege. In addition, the High Court recently conducted its first ever paperless trial for a large, complex financial services dispute utilising an electronic trial platform in Defender Limited v HSBC Institutional Trust Services (Ireland) Limited and Ors [2018] IEHC 706. During the trial, the Court and parties worked from laptops, removing the need for volumes of paper, and any document referred to by counsel was immediately displayed onscreen in the courtroom. The case involved a significant number of witnesses and experts from across multiple jurisdictions who were scheduled to give evidence at the trial. As a direct result of the use of technology, experts in other jurisdictions were able to be briefed electronically and give their evidence remotely and in real time. In Ireland, legal teams traditionally work from hard copy folders, and the use of the electronic trial platform massively reduced paper wastage and associated costs. This trial demonstrates the willingness of the Irish courts to embrace technology, and the Courts Service of Ireland has indicated its desire to develop and expand its digital offering in the near future.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

Parallel proceedings are possible in Ireland, but uncommon. Generally, a regulator will conduct an investigation itself and make a decision at enforcement stage whether to conduct a hearing or refer a matter to the Garda Síochána (the Irish police force) and the Director of Public Prosecutions for a criminal investigation. Some regulators, such as the Environmental Protection Agency, have the ability to prosecute individuals themselves in the Irish courts.

It is unusual for regulatory and criminal proceedings to progress at the same time given that hearings and tribunals tend to progress more quickly than court proceedings.

Where both criminal and civil proceedings are brought in the same matter, the civil proceedings will most often be stayed by the court pending the outcome of the criminal proceedings. In the interests of the administration of justice, the courts will often direct that the criminal proceedings take precedence over any civil action, and stay the civil proceedings so as not to interfere with the criminal trial.

From a tactical point of view, the process of obtaining and exchanging evidence in these scenarios is crucial. It is very important to assert legal privilege over as many documents as possible from the beginning of any parallel or intertwined investigations. This is complicated by a recent Court of Appeal decision, Ryanair and Aer Lingus v Ireland [2018] IECA 222, in which it was held that litigation privilege in relation to one set of proceedings does not apply to subsequent actions.

There is limited scope in Ireland for a party to bring a private prosecution. Private prosecutions are held only at the district court level, where less serious offences are heard before a judge only. These are also unusual, but the existence of the right to private prosecution was confirmed by the High Court in 2013 in the decision of Kelly & anor v Ryan [2013] IEHC 321.