A New Practice Direction implementing a new system in relation to Certificates of Readiness (HC75) took effect on 9 April 2018 replacing the old system under HC14.
The Old System – HC 14
The old system required that a document known as a Certificate of Readiness had to be filed in all non-jury and chancery cases before such cases could be listed for hearing. A Certificate of Readiness certifies that a case is ready to proceed to hearing once all proofs have been complied and is signed by counsel or, where counsel is not briefed, by a solicitor.
The Certificate of Readiness as filed was required to indicate the likely duration of the hearing. The party filing the Certificate of Readiness was also required to immediately notify all parties to the action of the filing of such certificate.
The old system was often exploited by parties seeking to obtain an early hearing date for strategic purposes in order to put pressure on opposing parties. This practice often led to inaccurate indications of the likely duration of hearings which often had cost implications for opposing parties together with misusing the courts already stretched resources by clogging court lists.
New System HC 75
Under the new system a party who seeks to certify the proceedings as ready for trial and seeking a hearing date must notify and give a month’s notice to the other parties of the intention to do so. During that period the parties must consult so as to ensure accurate completion of the Certificate of Readiness, with particular emphasis being placed as to the duration of the trial by the new system.
A failure to provide an accurate certificate particularly concerning the duration of the trial or to co-operate in the consultation process may result in costs consequences for the parties regardless of the result of the action.
It will be interesting to see what the "cost consequences" in this regard may be and how strenuously the courts will enforce compliance with the consultation process.
The Certificate of Readiness must be signed by Counsel (or, where Counsel is not briefed, by a solicitor, or by the certifying party if unrepresented) and filed in the Central Office prior to applying for a date for hearing. A filed copy of the Certificate of Readiness must be furnished to the Court upon application for a hearing date. A template form for the new certificate accompanies HC75 and appears as follows:
Most interestingly, whilst not expressly referred to in the new practice direction, the template form at paragraph 2 makes reference to certification in respect of expert witnesses and confirmation that such experts have exchanged reports and have had an inter-experts meeting prior to certification.
This appears to be an acknowledgment of the new Conduct of Trials rules in respect of expert evidence as contained in the amendment to Order 39 RSC as implemented by S.I. No. 254 of 2016.
However, it is unclear how parties will adhere to this particular requirement for certification in circumstances where under Order 39 Rule 60 RSC in relation to expert evidence only requires expert evidence to be exchanged by order of the court in the following circumstances:
- By motion on notice to the Judge chairing and regulating the pre-trial conference;
- Following application by any party by motion on notice to the trial judge;
- Where so ordered by the trial judge.
As the Case Management rules under S.I No. 255 of 2016 have been suspended indefinitely it appears there is currently no underlying basis for this requirement. However, the new system under HC 75 seems to be a clever way of introducing an element of the case management procedures without having to involve the court's resources by placing an obligation on the party seeking to obtain a trial date to provide an explanation as to why reports have not been exchanged/ or experts have not met, in advance of obtaining a hearing date.
Overall, the new system in relation to Certificates of Readiness appears to be a very sensible approach which should lead to better use of the court's time through a more accurate reflection as to the duration of the trial with the consultation process also limiting any conceived "ambush" attempts by parties seeking an early hearing date.