In recent years the backlog of High Court litigation has increased significantly. Statistics for the calendar year of 2014 reveal that of the 2,149 chancery cases that were initiated during that period, only 775 cases were concluded. That amounts to approximately 36%. By contrast, statistics for the Commercial Court for the same period show that more than 90% of cases admitted to the Commercial List conclude within one year. The Commercial Court is a division of the High Court which was established in 2004 for the purpose of providing efficient and effective dispute resolution in high value commercial cases.
In an attempt to tackle the backlog of High Court litigation, increase efficiency and reduce the duration of High Court hearings, two new statutory instruments have been introduced and will take effect from 1 October 2016. Statutory Instrument No. 254 of 2016 (The Rules of the Superior Courts (Conduct of Trials) 2016) and Statutory Instrument No. 255 of 2016 (The Rules of the Superior Courts (Chancery and Non-Jury Actions: Pre-Trial Procedures) 2016) introduce substantial changes to the current rules in relation to trial conduct and case management procedures respectively.
Pre-trial procedures – rule changes
These changes introduce new rules which apply only to proceedings in the Chancery List, the Non-Jury List and proceedings which may be designated by the President of the High Court. In broad terms, these rules extend certain procedures which are available in the Commercial Court to other classes of claims. Given the contrasting statistics relating to the lifespan of proceedings in the Chancery and Commercial lists mentioned above, this procedural shift has the potential to enhance the efficiency of the Chancery and Non-Jury List in the High Court.
Under the new rules the Court may give pre-trial directions to guide parties to the case through the pleadings and discovery stages of proceedings within directed time limits.
A case management conference may be ordered by the Judge in charge of the relevant list if he/she believes the process to be appropriate for that particular case. In broad terms, the purpose of this procedure, which has rarely been used in the Commercial Court, is to ensure all aspects of the case are effectively running smoothly toward trial. For example, one of the objects of a case management conference may be to ensure that all expert reports have been exchanged. If this issue is resolved at a case management conference it will reduce the time and cost that would otherwise accrue whilst parties are chasing each other for such reports. Similar to a case management conference, the new rules also introduce the use of a pre-trial conference, which is a mandatory procedure unless deemed otherwise by the Judge in charge of the relevant list.
One of the most significant changes brought in under the new rules is the requirement for parties to exchange witness statements and expert reports in advance of trial. These must be served on the other parties to the proceedings not less than 30 days prior to the trial of the action.
Conduct of trials – rule changes
The new rules introduce a series of new amendments to pre-existing provisions of the Rules of the Superior Courts and mainly consist of changes relating to expert evidence. When the rules take effect, plaintiffs will be required to set out in their Statement of Claim whether they intend on offering expert evidence in support in their case at trial. Details of the specific field of expertise concerned must be provided, along with a description of the matters on which the expert evidence is intended to be offered. Likewise, a defendant will also be required to provide the same details when delivering a defence. This means that in all matters (with the exception of personal injuries actions to which this rule does not apply) an expert will need to be retained earlier in the timescale of the litigation than would previously have been the case, if expert evidence is intended to be relied upon.
Under the new rules, the High Court may make certain directions concerning expert witnesses such the date on which parties are to exchange expert reports and the duration and focus of expert testimony at trial. However, a more noteworthy direction which may be given by the Court is the introduction of the option to order two or more parties to proceedings to retain a “single joint expert”.
In order to limit the quantity of expert evidence being heard at trial, the new rules limit a party to put forward no more than one expert to offer evidence on matters which fall within a single field of expertise on a particular issue.
The new rules also provide that a party may serve written questions on another party’s expert in relation to the content of that expert’s report. This also applies to the reports of single joint experts. Unless directed otherwise by the Court, the purpose of these questions is limited to clarification of the report. Such questions must be put within 28 days of service of that report and any answers given form part of the report. A failure to answer questions may result in the Court excluding part or all of the evidence given and the Court may refuse recovery of all fees in relation to that expert’s evidence.
The final rule changes of note in relation to expert evidence sees two provisions which have the aim of minimising debate amongst experts. The first of these procedures that may be ordered by the Court is the preparation of a joint report following a private meeting between experts without the parties or legal representatives present. The joint report would highlight areas on which the experts agree and disagree which in turn would reduce the quantity of material to be examined at trial. The second procedure introduced under the new rules is what is known as a “debate amongst experts” or “hot-tubbing”, a technique which has proven to be quite controversial in other jurisdictions. This procedure involves two or more experts providing a summary of their opinion before engaging in a debate, under oath, with each other on points of disagreement, having the Judge act as an umpire.
The new rules also provide for a facility which allows a party to obtain information from parties that are not joined to a particular action. The non-party information that is sought must not be available through non-party discovery or non-party interrogatories or be obtainable through a party to the proceedings. Only once this has been established will the Court go on to consider whether it will order that non-party information be provided.
The new rules also address the use of assessors as aides to Judges in dealing with complex issues in cases. Although the use of an assessor is not an entirely new concept in the Irish courts, the new rules effectively give judicial practices that are already in place a statutory grounding. Through an application by either party to proceedings or by order of the Court following its own motion, one or more assessors may be appointed to assist the Court during a hearing.
The use of video-link evidence has been available in all civil proceedings since the enactment of the Civil Law (Miscellaneous Provisions) Act 2008. The new rules provide that evidence can be given via video link by a witness inside or outside the jurisdiction and enable the Court to give such further directions as are necessary for the efficient conduct of the trial.
Perhaps the most potentially impactful changes to be made under the new rules, in in terms of the ultimate goal of greater efficiency and expediency, are the provisions which relate to time management of the hearing of cases. When these rules take effect, the High Court may require any party to proceedings to provide a reasoned estimate of the duration of time likely to be spent at trial. Furthermore, having considered the time estimates, along with details of evidence to be called and submissions of the parties, the Court may make specific directions setting limits on the time to be spent on: each aspect of the trial; which evidence the Court does or does not want to hear and which matters must be addressed by means of oral evidence.
The new rules are a welcome step towards increasing efficiency in the conduct of High Court litigation. The success of the new procedures will depend on a number of factors including the willingness of the High Court Judges to hold the parties to the new requirements. To a significant degree it is not clear from the new rules to what extant parties can/will be punished for failure to adhere to the new procedures.Back to Full News
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About the Authors
Jeremy is a partner in the Commercial & Business team at Hayes solicitors. He practises predominately in insolvency, commercial litigation and dispute resolution, acting for a variety of companies and financial institutions in contract law cases and enforcement and recovery actions in the High Court. He also advises clients in high value complex Commercial Court proceedings.
Jamie is a Solicitor in the Employment Law team at Hayes Solicitors. Jamie advises both employers and employees, in relation to contentious and non-contentious employment matters, including contracts of employment, workplace policies, workplace investigations, statutory compliance, redundancies and dismissals.