Litigation

Court system

What is the structure of the civil court system?

Ireland’s civil court system is composed of five levels, which are regulated by the Courts (Supplemental) Provisions Act 1961. The District Court comprises 64 judges. The business of the District Court is primarily divided into criminal, civil, family law and licensing matters. The civil jurisdiction of the District Court in contract and most other matters is €15,000. It also deals with small claims matters below €2,000. Decisions of the District Court can be appealed to the Circuit Court with some exceptions.

The Circuit Court consists of 38 judges and six specialist judges. The business of the Circuit Court is divided into civil, family and criminal matters. The civil jurisdiction of the Circuit Court in proceedings other than personal injury claims is limited to €75,000 (in personal injury cases it is €60,000). The Circuit Court and High Court have concurrent jurisdiction in the area of family law. The Circuit Court also acts as an appeal court for appeals from the decisions of the Labour Court, Unfair Dismissals Tribunal and the Employment Appeals Tribunal.

The High Court comprises 37 judges. It has full jurisdiction to determine all matters and questions whether of law or fact, civil and criminal. Its jurisdiction extends to the question of the validity of law having regard to the Constitution. Matters before the High Court are normally heard and determined by a single judge; however, more significant matters may be heard by three judges. The High Court acts as an appeal court from the Circuit Court in civil matters and it has the power to review the decisions of certain tribunals. It may also give rulings on questions of law submitted by the District Court. The Commercial Court is a division of the High Court and it deals with various types of business disputes, including cases where the value exceeds €1 million or where the dispute concerns intellectual property. There is no automatic right for any case to be admitted to the Commercial List and the court retains the ultimate discretion to admit cases.

The Court of Appeal, established by the Court of Appeal Act 2014 and comprising 10 judges, occupies an appellate jurisdictional tier between the High Court and the Supreme Court. The Court of Appeal has jurisdiction to hear appeals in civil proceedings from the High Court. It can also hear appeals on questions of whether a law is constitutional and decides points of law by cases stated from the Circuit Court.

The Supreme Court comprises the Chief Justice of Ireland and nine judges. It is the court of final appeal in Ireland. The court usually comprises three to five judges, although in exceptional cases seven judges may preside. Where a case concerns the constitutional validity of an Act of the Irish parliament, the Constitution requires that the court consists of a minimum of five judges. Leave of the Supreme Court is necessary to bring an appeal from the Court of Appeal. The Supreme Court may hear an appeal on a decision from the Court of Appeal if it is satisfied that the decision involves a matter of general public importance, or the interests of justice require it. It is possible to bring a ‘leapfrog appeal’ from a decision of the High Court if there are exceptional circumstances warranting such an appeal; for example, where it involves a matter of general public importance.

Judges and juries

What is the role of the judge and the jury in civil proceedings?

The vast majority of civil actions are heard by a judge sitting without a jury, with the exception of defamation and civil assault claims. In such cases, the plaintiff can opt to have it heard by a judge alone. The judge determines the outcome depending on whether the burden of proof has been discharged on the balance of probabilities, based on the parties’ evidence and submissions. The judge can ask questions, but this is predominantly the role of the practitioners.

In civil actions heard with a jury, the jury is selected at random and is composed of 12 members of the public. They are sworn to give a verdict on the basis of evidence given in a court case.

Improving the diversity of the judiciary is a live issue at present. The Judicial Appointments Commission Bill 2017 is being considered by the Irish parliament in an effort to attract a broader range of candidates to the bench, including women and those from wider socio-economic backgrounds, by changing the selection regime.

Limitation issues

What are the time limits for bringing civil claims?

The time limits for bringing civil claims are primarily set out in the Statute of Limitations Acts 1957 and 1991, the Civil Liability Act 1961 and the Civil Liability and Courts Act 2004.

The limitation period for contract and general tort claims is six years from the date of the cause of action. In personal injury claims, this period is two years commencing when the claimant knew or ought to have known of the cause of action. In defamation cases, the limitation period is one year, or up to two years if extended by the court. In judicial review matters, the claim must be brought promptly and in any event within three months of the date of the cause of action, though this period can be extended by the court if there is a good reason.

Limitation periods operate as a defence and not a bar to proceeding with an action. Therefore, a standstill agreement to suspend a time limit should be enforceable so long as the agreement is not disputed.

Pre-action behaviour

Are there any pre-action considerations the parties should take into account?

There is no obligation in Ireland to take any pre-action measures before commencing litigation. However, solicitors usually, as a protective measure in relation to future costs applications, send a warning letter to the defendant before initiating legal action.

If there is more than one potential defendant, an ‘O’Byrne letter’ is usually sent, which calls on the potential defendants to admit liability and states that if liability is not admitted, each defendant will be sued and the letter will be relied on by the plaintiff in resisting an application for costs by any party found not liable.

In personal injury actions, if the plaintiff does not notify the alleged wrongdoer or wrongdoers in writing of the wrong alleged to have been committed within two months of the cause of action accruing, the court may take this failure into account when adjudicating on costs. Most personal injuries (other than medical negligence actions) involve an application for assessment by the Personal Injuries Assessment Board, under the Personal Injuries Assessment Board Act 2003. This Act requires a claimant to obtain an authorisation from the Personal Injuries Board before issuing proceedings.

Starting proceedings

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

In the High Court, proceedings are usually commenced by plenary summons but can also be commenced by a summary summons, special summons or by way of personal injuries summons. This is governed by Orders 1-3 of the Rules of the Superior Courts (RSC).

Circuit Court proceedings are commenced by way of a civil bill pursuant to Order 5, rule 1 of the Circuit Court Rules (CCR). In the District Court, proceedings are commenced by a claim notice pursuant to Order 40, rule 4(1) of the District Court Rules (DCR).

The originating document should be served on the defendant within 12 months from the date of issue, otherwise it will need to be renewed. The means of service is determined by the applicable court rules. In High Court actions, personal service is usually required, though the court can authorise substituted service where it is not possible to effect personal service. In the lower courts, service is normally effected by registered post. Proceedings can be served on a company by post to the company’s registered office or by way of email so long as the parties consent (Statutory Instrument 475 of 2017). In exceptional circumstances the courts may allow service by way of non-traditional means. For example, in 2012 and 2014 the High Court made orders allowing service via social media in cases where all other attempts to serve court documents had been exhausted.

Leave of the court is not required to effect service in another EU member state for civil and commercial proceedings over which an Irish court has jurisdiction, pursuant to EU Regulation 1215/2012 (Brussels I Recast). Service can be effected through a country registrar as transmitting agency or, alternatively, as prescribed by the local rules in the place of service.

The courts generally manage their caseload effectively with few capacity issues. The exception to this is the Court of Appeal, which currently has a significant backlog of cases. As a result, most appellants wait over a year before their appeal is heard. The Courts (Establishment and Constitution) (Amendment) Bill 2019 is currently before the Dáil, the purpose of which is to increase the number of Court of Appeal judges by six, bringing the total number of judges to 16.

Timetable

What is the typical procedure and timetable for a civil claim?

Once the proceedings are commenced, the defendant must enter an appearance, either confirming his or her intention to defend the claim or contesting the court’s jurisdiction, and also identifying the defendant’s solicitor if one is retained. In plenary proceedings, a statement of claim must be delivered to the defendant within 21 days of the appearance being filed. The defendant then has 28 days to deliver a defence or counterclaim. A reply to the defence or counterclaim can be delivered by the plaintiff within 14 days thereafter.

Following receipt of the statement of claim, the defendant can raise queries on it, known as a notice for particulars, to assist with the preparation of its defence. A reply to the notice for particulars is usually required within 21 days, failing which an application can be made to the court for an order directing delivery of replies. Equally, a plaintiff can raise a notice for particulars on the defence. It is also open to the plaintiff to deliver a reply to the defence. Once these steps are completed, the pleadings are said to have closed.

Once pleadings are closed, the exchange of documents, known as discovery, takes place. Once discovery is complete, the claim is listed for trial.

Case management

Can the parties control the procedure and the timetable?

The court timetable is ultimately controlled by the judge; however, the parties often agree the timetable between themselves. The Commercial Court is the only division of the High Court where cases are routinely managed by a judge. Once a case has been admitted to the Commercial list, court directions are issued, setting out a strict timetable for the exchange of pleadings, discovery and other pre-trial steps. There is also a growing emphasis on case management in other lists of the High Court through applications for directions to the relevant High Court judge. Two statutory instruments, Statutory Instrument 254 of 2016 and 255 of 2016, introduced on 1 October 2016, provide for pretrial procedures, including in relation to expert evidence and case management conferences. However, while Statutory Instrument 254 of 2016 is fully effective, the practical implementation of some of the rules contained in Statutory Instrument 255 of 2016 has been delayed until further notice.

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

Parties are obligated to preserve relevant documents and evidence pending trial. The disclosure of documents between the parties in Irish litigation is known as discovery, and it usually takes place once pleadings have closed. Each party issues a request for voluntary discovery from the other party for specific categories of documents now or previously in its possession, power or procurement, relevant to the dispute. This request must comply with the following requirements:

  • the 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 agreement, the court can order discovery on applications by the parties. Once discovery has been agreed or ordered, the documents are disclosed in a two-stage process. First, the parties disclose on affidavit the existence of documents relevant to the proceedings. The documents are then made available for inspection, unless exempt from production for reasons of legal privilege. In practice, copies of the documents are usually provided to the other party rather than inspection taking place. If the parties fail to make discovery as agreed or ordered, applications can be brought to have the claim dismissed or the defence struck out.

Increasingly, complex commercial disputes are being litigated in Ireland, resulting in a significant growth in electronic discovery. As a result, additional practical considerations have emerged regarding proportionality and reasonable efforts in making discovery. The Irish Court Rules specifically make provision for parties to seek electronically stored information from one another in searchable form. In addition, a discovery audit file is typically maintained by the parties to record decisions taken in respect of relevance and privilege. The cost of complying with discovery orders can sometimes approach 50 per cent of the total cost of the litigation.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

There are various types of privilege recognised by Irish law. The most commonly asserted are legal advice privilege and litigation privilege. Legal advice privilege protects confidential communications between lawyer and client that are created for the sole or dominant purpose of giving or seeking legal advice. Litigation privilege is broader, as it protects confidential communications between lawyer and client made for the dominant purpose of use in connection with existing or contemplated litigation. Litigation privilege covers communications between lawyer and client, and between lawyer or client and a third party.

The Irish courts have made a distinction between communications involving legal advice, which are privileged, and communications involving mere legal assistance, which are not.

Where privilege is claimed, the party must individually list each document in the affidavit of discovery and describe the privilege claims in relation to each document so that the basis for the claim of privilege can be considered and evaluated. Any claim of privilege is open to challenge by the other side.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

Generally speaking, parties are not required to exchange written evidence or statements prior to trial. However, the Commercial Court Rules provide that a plaintiff 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 or expert opinion is often treated as that person’s evidence-in-chief at the hearing. Judges in other lists of the High Court also have the power to regulate how expert evidence can be adduced and the duties of expert witnesses. In 2016, the concept of ‘hot tubbing’ was introduced to the Irish Court Rules (Statutory Instrument 254 of 2016). Hot tubbing is a debate between the experts, where two or more parties intend to call experts who may contradict each other in their reports or statements. Under these rules, the court can require the experts to meet privately to discuss their proposed evidence (without the presence of any party or any legal representative).

In personal injuries cases, Order 39 RSC places an obligation on the parties to exchange schedules listing all expert witnesses’ reports within one month of service of the notice of trial, and thereafter to exchange the reports listed.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

In Ireland, evidence at trial is normally given orally by witnesses on oath or affirmation. However, the court, in cases involving affidavit evidence, can at any time order that particular facts be proved by affidavit, or that the affidavit of any witness should be read in court.

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, and this is subject to appeal by the court.

The Irish courts are beginning to move towards technology-assisted litigation. While still in its infancy, the process involves all parties scanning documents and using tablets to conduct trials, dispensing with the need for large volumes of paper.

Interim remedies

What interim remedies are available?

Either party to a dispute can seek an injunction. They can be granted on a discretionary basis by the court, provided that there is a serious dispute to be tried; damages are not an adequate remedy; and the balance of conveniences lies in favour of granting an injunction. An undertaking as to damages and full and frank disclosure must be made in the application for a temporary injunction.

Interim injunctions are usually applied for without notice to the defendant on an ex parte basis. An ex parte interim injunction is usually granted on the same day but is generally only granted in cases of urgency for a short period of time. Interlocutory injunctions are made on notice, and last until the court makes some further order or until trial.

The court, at its discretion, may make an interim attachment order to preserve assets pending judgment. An application for such an order can be brought where it can be established that the defendant has assets within the jurisdiction and there is a risk of those assets being dissipated with the intention of evading judgment prior to the hearing of the action.

Although rare, an order can also be granted that allows the plaintiff access to documentation belonging to the defendant and to remove identified items. This is known as an Anton Piller order and is to prevent the defendant from destroying evidence pending the trial of the action. Such remedies are available in Ireland in aid of civil and commercial proceedings in other EU member states under article 35 of the Brussels I Recast.

Remedies

What substantive remedies are available?

The most common remedy awarded by the Irish courts is damages, although the court has discretion to award equitable remedies including specific performance, rescission, declarations, rectification and injunctions. Damages can be compensatory or punitive, and include general damages, which are compensation for loss with no quantifiable value, such as pain and suffering; special damages, which are compensation for precise financial loss, such as damage to property; punitive (exemplary) damages, which are awarded to punish the behaviour of a party (rarely awarded); or nominal damages, which are awarded where the plaintiff has been wronged but not suffered financial loss.

Interest is payable on money judgments at the rate of 2 per cent per annum.

Enforcement

What means of enforcement are available?

The following enforcement methods are available:

  • if the debtor has property, a judgment mortgage can be registered against the property;
  • an execution order allows the seizure of goods by publicly appointed sheriffs;
  • an instalment order requires the debtor to make payments at regular intervals determined by the court;
  • if the debtor fails to pay sums according to the terms of an instalment order, a creditor can apply for a committal order, which involves arrest and imprisonment;
  • where it appears that the debtor has no assets but is owed a debt by a third party, a creditor can seek an attachment order in respect of that debt;
  • a receiver may be appointed to sell a debtor’s property and pay the sale proceeds to the creditor;
  • bankruptcy proceedings may be commenced against an individual debtor; and
  • a petition for the winding-up of a debtor company may be presented to the High Court.
Public access

Are court hearings held in public? Are court documents available to the public?

In line with the constitutional requirement in Ireland that justice must be administered in public, court proceedings are held in public, except for certain limited circumstances set out in legislation. These exceptional cases are held ‘in camera’ (in private) and only those persons directly involved in the case may be present for the hearing. Because of their sensitive nature, family law matters are usually held in camera. Further to Practice Direction HC80, effective from November 2018, the provision of live text-based updates during proceedings is now prohibited, with the exception of lawyers with bona fide business in the court concerned and bona fide members of the news media profession or professional legal commentators who are reporting proceedings before the court. Further to a Practice Direction HC86, effective as of 29 April 2019, court files maintained in the Superior Courts offices shall not be made available to any person attending at those offices, including the parties to the proceedings and solicitors on record. This does not preclude a solicitor on record or a party to the proceedings who is not legally represented obtaining a copy of a document on a file upon payment of the relevant fee.

Costs

Does the court have power to order costs?

In Ireland, there are two main categories of costs in litigation: party-party costs, which relate directly to the litigation; and solicitor-client costs, which are the costs owed by the client to the solicitor under contract.

Generally, the costs of every proceeding in the superior courts are awarded at the court’s discretion and, therefore, no party can recover costs without a costs order. However, costs generally follow the event (the unsuccessful party pays the successful party’s costs). Costs are usually awarded on a party-party basis, which means that costs reasonably incurred by a successful party in prosecuting or defending an action are recovered, but other legal fees incurred are not.

The court can penalise a party who receives an award that does not meet the court’s jurisdictional threshold by awarding the typical costs of a lower court action, if it believes the application should have been brought in that court.

The defendant can make an application for security for costs to the High Court. There are different rules for foreign individuals and for Irish corporations. It is virtually impossible to obtain an order against an individual based in Ireland, the EU or the territory covered by Regulation (EC) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation). The granting of an order is at the court’s direction and will only be granted where the defendant has a prima facie defence to the claim and verifies this on affidavit.

Funding arrangements

Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

‘No win, no fee’ arrangements (where payment is contingent on a successful outcome) are well established in Ireland. However, lawyers are prohibited from charging fees as a percentage of damages awarded in a case. The Irish Supreme Court has reaffirmed an earlier High Court decision that third-party funding by an entity with no independent interest in the underlying proceedings is not permissible under Irish law (Persona Digital Telephone Ltd and Sigma Wireless Networks Ltd v The Minister for Public Enterprise & Ors [2017] IESC 27). The court held that the existing laws in Ireland relating to maintenance (that is, assisting a party to litigation by a person without an interest or motive in the litigation) and champerty (a type of maintenance that involves an agreement to divide the compensation in return for support by a third party in the litigation) remain in force.

Insurance

Is insurance available to cover all or part of a party’s legal costs?

Insurance to cover litigation costs is generally not readily available in the Irish market. While insurance is available in the London market, the premium required for this form of insurance is often prohibitively expensive.

Class action

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

Irish law does not facilitate class actions. However, multiparty or multi-plaintiff litigation does occur and is often brought by way of representative actions or test cases. The preferred option is the test case, which arises where there are numerous separate claims arising from the same circumstances. The first case is the test case as it effectively becomes the benchmark by which all remaining cases are resolved. Although not binding, the test case has an effect by virtue of the doctrine of precedent. Subsequent litigation is often settled on the outcome of the test case.

Appeal

On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

Ireland’s civil court system is composed of five levels, which are regulated by the Courts (Supplemental) Provisions Act 1961. The District Court comprises 64 judges. The business of the District Court is primarily divided into criminal, civil, family law and licensing matters. The civil jurisdiction of the District Court in contract and most other matters is €15,000. It also deals with small claims matters below €2,000. Decisions of the District Court can be appealed to the Circuit Court with some exceptions.

The Circuit Court consists of 38 judges and six specialist judges. The business of the Circuit Court is divided into civil, family and criminal matters. The civil jurisdiction of the Circuit Court in proceedings other than personal injury claims is limited to €75,000 (in personal injury cases it is €60,000). The Circuit Court and High Court have concurrent jurisdiction in the area of family law. The Circuit Court also acts as an appeal court for appeals from the decisions of the Labour Court, Unfair Dismissals Tribunal and the Employment Appeals Tribunal.

The High Court comprises 37 judges. It has full jurisdiction to determine all matters and questions whether of law or fact, civil and criminal. Its jurisdiction extends to the question of the validity of law having regard to the Constitution. Matters before the High Court are normally heard and determined by a single judge; however, more significant matters may be heard by three judges. The High Court acts as an appeal court from the Circuit Court in civil matters and it has the power to review the decisions of certain tribunals. It may also give rulings on questions of law submitted by the District Court. The Commercial Court is a division of the High Court and it deals with various types of business disputes, including cases where the value exceeds €1 million or where the dispute concerns intellectual property. There is no automatic right for any case to be admitted to the Commercial List and the court retains the ultimate discretion to admit cases.

The Court of Appeal, established by the Court of Appeal Act 2014 and comprising 10 judges, occupies an appellate jurisdictional tier between the High Court and the Supreme Court. The Court of Appeal has jurisdiction to hear appeals in civil proceedings from the High Court. It can also hear appeals on questions of whether a law is constitutional and decides points of law by cases stated from the Circuit Court.

The Supreme Court comprises the Chief Justice of Ireland and nine judges. It is the court of final appeal in Ireland. The court usually comprises three to five judges, although in exceptional cases seven judges may preside. Where a case concerns the constitutional validity of an Act of the Irish parliament, the Constitution requires that the court consists of a minimum of five judges. Leave of the Supreme Court is necessary to bring an appeal from the Court of Appeal. The Supreme Court may hear an appeal on a decision from the Court of Appeal if it is satisfied that the decision involves a matter of general public importance, or the interests of justice require it. It is possible to bring a ‘leapfrog appeal’ from a decision of the High Court if there are exceptional circumstances warranting such an appeal; for example, where it involves a matter of general public importance.

Foreign judgments

What procedures exist for recognition and enforcement of foreign judgments?

The enforcement of judgments in civil and commercial matters between EU member states (including Denmark) is regulated by the Brussels I Regulation and the provisions of the more recent Recast Brussels Regulation. The enforcement of judgments between EU member states and certain EFTA countries (Iceland, Norway and Switzerland) is regulated by the 2007 Lugano Convention.

The enforcement procedure under the Brussels I Regulation and the Lugano Convention involves an ex parte application to the Master of the High Court for recognition and enforcement. For judgments to which the Recast Brussels Regulation applies, no special step is required for the purpose of recognition. A judgment that is enforceable under any of those instruments has the same force as a judgment of the Irish courts and can be enforced.

To enforce a judgment from a non-EU/EFTA country, it is necessary to rely on Irish common law rules of enforcement. The proceedings are brought by summary summons for a liquidated amount, that is, the value of the award under the foreign judgment.

Foreign proceedings

Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Within the EU

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 first member state. The request is made to the Dublin Metropolitan District Court or the Circuit and District Court Operations Directorate. If the order is granted, a subpoena to examine a witness is issued.

 

Outside the EU

Under the Foreign Tribunals Evidence Act 1856, 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. A letter of request must be issued from the foreign court to the Irish court requesting assistance. 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.

Law stated date

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July 2019