Ireland: New Irish High Court Rules Aim To Reduce "Trials By Ambush"

Rules of court procedure do not often generate much interest beyond a small circle of lawyers. However, in Ireland, High Court rules are being introduced which could radically alter the culture of Irish civil procedure. We examine the scope of the rules and some practical implications. 

Until recently, there were two key differences in non-personal injury English and Irish civil court procedure:

1. Irish Judges generally had a “hands off” approach to proceedings, the onus being on a party to take steps to compel a defaulting party to comply; and
2. Apart from personal injury or Commercial Court cases, there was no obligation in Ireland to exchange expert reports or witness statements.

The result was that Irish litigation suffered a reputation for inefficiency and delay. A party could be “ambushed” at trial since there was no obligation to disclose which witnesses were to be called, or to exchange any statement of their evidence in advance. The stand-out exception has been the Commercial Court, which was established in 2004 to deal with commercial disputes valued at more than €1 million. 

That Court operated so efficiently that, as from 1 October 2016, a similar approach is to be extended across Chancery and Non-Jury proceedings. They will affect the vast majority of civil claims including professional negligence cases ¹, but excluding personal injury cases. We consider some of the new rules which should address the criticisms about inefficiency and lack of transparency.

Two of the most significant changes are the following which apply in all circumstances:

• Where a party intends to offer expert evidence, that party must disclose their intention to call an expert in their pleadings, stating the expert’s field of expertise and the matter on which expert evidence is intended to be offered.
• Unless the Judge orders otherwise, a party intending to rely upon oral evidence of a factual or expert witness shall  serve and file witness statements and expert reports.

Some rules are offered as options. A Judge, either on his own initiative, or on application of one of the parties, may direct as follows:

• The proceedings may be subject to case management and, if that is the case, the Judge will give directions for the conduct of the proceedings up to trial.
• A person may be appointed “to assist the court in understanding or clarifying a matter” as an “assessor”.

A number of rules clarify the duties and obligations of an expert “to assist the Court as to matters within his or her field of expertise”. The Judge has jurisdiction to make a number of directions as to expert evidence, for example:

• The experts may be directed to meet privately and draw up a written statement to identify areas agreed and not agreed.

In certain limited circumstances, experts may be examined at trial one after the other or by a “debate among experts”  procedure. The best analogy is a political debate with the Judge seeking to test each expert’s position.