Two Statutory Instruments (SIs) amending the Rules of the Superior Courts will come into effect on 1 October 2016 and introduce significant changes to the existing High Court procedures with the clear aim of creating efficiencies in the use of court time and resources.
A summary of the most important changes included in SI 254 of 2016 (Rules of the Superior Courts (Conduct of Trials) 2016) and SI 255 of 2016 (Rules of the Superior Courts (Chancery and Non-Jury Actions: Pre-trial procedures) 2016) is set out below. In addition to the below, other newly-introduced provisions include those relating to exchange of witness statements, electronic service of documents and evidence by video link.
Both SIs provide for new rules in relation to expert evidence. SI 254 allows a judge to restrict expert evidence to what is reasonably required and to order the appointment of a single joint expert. With the exception of personal injuries actions, where a plaintiff or a defendant intends to offer expert evidence, they must provide details of that intention in the statement of claim or the defence. These details include the field of expertise of the expert and the areas proposed to be covered by that evidence.
SI 254 introduces a novel procedure whereby parties in commercial, competition, chancery and non-jury actions will have the right to put concise written questions on the content of an expert report to another party’s expert or a joint expert.
In circumstances where parties’ experts have contradicting opinions, the judge may order that they meet without the parties or their legal representatives to discuss the proposed evidence and subsequently prepare a joint report setting out which evidence is agreed. The “debate among experts” procedure may then be utilised whereby both experts are sworn and present the evidence on which they are not agreed, following which they may be required to debate the points of disagreement. After the debate, they can be examined by counsel, the judge and cross-examined on such matters as the judge directs.
The provisions of SI 254 give the court more control over managing the duration of trials and states that any party to proceedings can be asked provide a reasoned estimate of the likely timing of the trial. The judge can make orders limiting the amount of time allowed for opening and closing the case, examining and cross-examining witnesses and can also make directions on the evidence required to include the nature and manner of production of evidence.
Trials with assessors
SI 254 provides that the court can appoint an assessor who has skill and experience in a particular area to assist the court in understanding or clarifying a matter of evidence. The assessor will take part in the proceedings as the court may direct. There will be cost implications for the appointment of an assessor which will for the most part be borne by the unsuccessful party, forming “part of the costs of the proceedings”.
SI 254 provides that the court can direct that commercial, competition, chancery and non-jury trials be conducted in particular stages / modules where appropriate. The court can determine the questions or issues arising in each module and direct the exchange of written submissions relevant to that module.
Once the rules are introduced, the court will be in a position to order disclosure of information not obtainable by way of discovery or answers to interrogatories from a non-party. Like the current rules governing discovery, the party seeking the information must, before issuing a motion, write to the non-party and request that the disclosure be made voluntarily but this requirement can be overlooked if the court deems it appropriate.
Chancery and Non-Jury List
SI 255 introduces new case management rules for the Chancery and Non-jury list similar to those in place in the Commercial and Competition lists which will be managed by a list judge, with overarching pre-trial powers. The list judge will be able to give directions and make orders for the conduct of the proceedings in a manner which is “just, expeditious and likely to minimise the costs of those proceedings”, including fixing time limits and making directions in relation to pre-trial conferences, pleadings, evidence and the conduct of the trial.
While the rules will no doubt reduce court delays if utilised effectively, it will put significant pressure on parties and their legal representatives to meet deadlines and avoid delay.
However in seeking to save time at hearing, it is likely that the work and steps (and time) involved in preparing those cases will be increased through the new rules, with a knock-on impact on costs. One example is the provision allowing for written questions to be put to an expert. While having the potential to expedite the hearing itself by constituting a form of cross-examination in advance, could also itself delay preparations for hearing. For example, SI 254 provides that an expert does not have to answer any questions that are disproportionate, unnecessary or not within the expert’s field of expertise. The new rules provide that disputes as to the appropriateness of these questions can be determined by the court by motion on notice. Such motions, alongside similar disputes relating to discovery and replies to particulars, have the potential to increase the time and costs required before a matter may be certified as ready for hearing.
The rules may ultimately encourage settlement in many instances due to the early identification of issues in dispute, which would, in turn, free up valuable court resources. When the new term commences in October, it will be interesting to see to what extent the new rules will be utilised by judges and whether any long-term benefits will be visible.
Both SIs can be found below: