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Rules of the Superior Courts

Order: 36

Trial

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No36-S.I. No. 20 Of 1989: Rules Of The Superior Courts (No. 2) 1989.
No36-S.I. No. 260 Of 1992: Rules Of The Superior Courts (No. 2), 1992.
No36-S.I. No. 511 Of 2009: Rules Of The Superior Courts (Defamation) 2009
No36-S.I. No. 209 Of 2010: Rules Of The Superior Courts (Trial) 2010
No36-S.I. No. 355 Of 2012: Rules Of The Superior Courts (Trial) 2012
No36-S.I. No. 254 Of 2016: Rules Of The Superior Courts (Conduct Of Trials) 2016


I. Place and mode of trial.

1. All proceedings in the High Court shall be tried at the Four Courts, Dublin, unless otherwise ordered or provided by statute or by these Rules.

2. (a) Subject to the provisions of paragraph (b) of this rule, an application by any party for an order for the trial of any proceedings elsewhere than in Dublin may be made to a Judge at any time after the close of the pleadings by motion on notice to the other party or parties to such proceedings or, if such other party or parties consent thereto, by motion ex-parte.

(b) In the case of any proceedings which the parties are entitled as of right to have tried with a jury, notice of trial may be served for any of the following venues Cork Limerick, Galway, Sligo, Dundalk, Kilkenny without prior application to the Court, and the matter may be set down for trial at such venue.

(c) In the event of any party serving a notice of trial for a venue under paragraph 2 (b) of this rule any other party may apply to the Court by notice of motion to vary the venue.

3. A notice of trial shall be served in all actions commenced by plenary summons or adjourned for plenary hearing (other than probate and admiralty actions) and all such actions or matters shall be set down for trial in the Central Office. Motions to set aside a notice of trial shall be brought within four days after service of the notice complained of.

4. The plaintiff in probate and admiralty actions commenced by plenary summons and the petitioner in matrimonial matters commenced by petition, shall apply, by motion on notice to the Master for directions, and the Master, or the Court, if the Master shall have placed the motion in the Court list, shall fix the time and mode of trial and make any ancillary order with respect of pleadings, particulars, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, settlement of issues, or otherwise, which may be necessary or expedient. Provided that in case the plaintiff in any such probate or admiralty action or the petitioner in any such matrimonial matters shall fail so to apply within fourteen days from the delivery of the last pleading, any defendant or any respondent, as the case may be, may apply for directions as aforesaid.

5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the Court shall otherwise order.

6. In all cases not within rule 5, the party serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.

7. The Court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.

8. If it be made to appear at any time after the issuing of the proceedings to the satisfaction of the Court upon the application of either party that the matter in dispute consists wholly or in part of matters of account which cannot conveniently be tried in the ordinary way, the Court upon such application may decide such matter in a summary manner, or order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties or to the Master or Examiner upon such terms as to costs and otherwise as the Court shall think reasonable.

9. Subject to the provisions of the preceding rules of this Order, the Court may in any cause or matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and in all cases may order that one or more issues of fact be tried before any other or others.

10. Every trial of any question or issue of fact with a jury shall be by a Judge, unless such trial be specially ordered to be by two or more Judges.

II. Notice of trial and setting down.

11. Notice of trial may be given in any cause or matter by the plaintiff or other party in the position of plaintiff. Such notice may be given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial.

12. (a) If the plaintiff in any action does not within three weeks after the close of the pleadings give notice of trial, the defendant may on notice to the plaintiff apply to the Court for liberty to give notice of trial, and on the hearing of such application the Court may make such order, on such terms, as to the Court shall seem just.

(b) If the plaintiff in any action does not within six weeks after the close of the pleadings, or within such extended time as the Court may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial (which, in cases where the plaintiff is entitled as of right to a jury, shall be for trial with a jury), or may apply to the Court to dismiss the action for want of prosecution; and on the hearing of such application, the Court may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court may seem just.

13. If within fourteen days after the order of the Master or the Court fixing the time and mode of trial the petitioner shall not enter a matrimonial proceeding for trial, the respondent may enter such proceeding for trial, or may apply to the Court to dismiss the petition for want of prosecution.

14. If within fourteen days after the order of the Master or the Court fixing the time and mode of trial, the plaintiff in a probate or an admiralty action shall not enter the action for trial, the defendant may enter the action for trial.

15. Notice of trial shall state whether it is for the trial of the cause or matter or of issues therein, and shall be in one of the Forms Nos. 18 and 19 in Appendix C.

16. Twenty-one days' notice of trial shall be given, unless the party to whom it is given has consented, or is under terms, or has been ordered, to take short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the Court. Short notice of trial shall be four days' notice, unless otherwise ordered.

17. Notice of trial shall be given before setting down the action for trial.

18. Unless, within fourteen days after notice of trial is given the action shall be set down by one party or the other, the notice of trial shall be no longer in force.

19. Notice of trial or the setting down or entering for trial shall not be or operate as for any particular sittings; but shall be deemed to be for any day after the expiration of the notice on which the trial may come on in its order upon the list.

20. No notice of trial shall be countermanded except by consent or by leave of the Court, which leave may be given subject to such terms as to costs, or otherwise, as may be just.

21. If the party giving notice of trial omits to set down the action within seven days after giving notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under rule 20, set down the action subject to rule 18.

22. The officer having the management of the Central Office for the time being shall be the proper officer to make entries and render accounts of all fines or penal sums imposed by the Court.

23. When any cause or matter shall have been adjourned for further consideration, the same may, after the expiration of eight days, and within fourteen days from the filing of the Examiner's certificate, be set down for further consideration, on the written request of the solicitor for the plaintiff or party having the conduct of the proceedings, and after the expiration of such fourteen days the cause or matter may be set down by the Registrar on the written request of the solicitor for the plaintiff or for any other party; and in either case, upon production of the judgement or order adjourning further consideration, or a copy thereof and a copy of the Examiner's certificate or a memorandum of the date when the certificate was filed, indorsed on the request by the proper officer. The request may be in the form No. 27 in Appendix G. The cause or matter when so set down shall not be put into the list for further consideration until after the expiration of six days from the day on which the same was so set down. Notice thereof shall be given to the other parties in the action at least four days before the day for which the same may be so marked for further consideration. Such notice may be in the Form No. 28 in Appendix G.

III. Papers for Judge.

24. The party desiring to set down the proceedings for trial shall do so by delivering to the proper officer a copy of the notice of trial together with two copies of the whole of the pleadings, and of any letter or notice for particulars and reply thereto, one of which shall be for the use of the Judge at the trial.

25. The party entering a probate action for trial shall, together with the two copies of the whole pleadings, deliver to the proper officer a list with names and dates of all caveats, warnings, citations and appearances lodged, filed, issued or entered down to the date of such delivery and a copy of the order fixing the time and mode of trial.

26. The party entering for trial a matrimonial proceeding commenced by petition shall deliver to the proper officer two copies of the whole of the pleadings, and a copy of the order fixing the time and mode of trial and the issues to be tried.

27. The party entering any proceedings for trial or his solicitor shall lodge a separate certificate certifying that all copies lodged are true copies.

IV. Proceedings at trial.

28. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him.

29. In an action for the recovery of land, in case the title of the plaintiff shall appear to have existed as alleged in the summons at the time of service thereof, but it shall also appear to have expired before the time of trial, the plaintiff shall, notwithstanding, be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the summons, and to a judgement for his costs of suit.

30. In an action for the recovery of land, if the plaintiff appears and the defendant does not appear, the plaintiff shall be entitled to a verdict, without any proof of his title, and in case of an action for the recovery of land, grounded on title, shall be entitled to prove the amount of damages sustained by reason of the loss of the mesne rates and profits, and in case of an action for the recovery of land for non-payment of rent, shall be entitled to prove the amount of rent actually due, and to have a verdict for the same.

31. In cases coming within rule 30, where the action is for the recovery of land for non-payment of rent, the amount of rent due may be proved by the affidavit of the landlord, his agent, receiver or clerk.

32. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgement dismissing the action, but, if he has a counter-claim, then he may prove such counter-claim so far as the burden of proof lies upon him.

33. Any verdict or judgement obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit, upon an application made within six days after trial.

34. The Judge may, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he shall think fit.

35. Upon a trial with a jury, the addresses to the jury shall be regulated as follows: the party who begins, or his counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence, if any, and the right to reply shall be the same as heretofore.

36. In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless seven days at least before the trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.

37. The Judge may in all cases disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious, and not relevant to any matter proper to be inquired into in the cause or matter.

38. The Judge may, at or after a trial, direct that judgement be entered for any or either party, or adjourn the case for further consideration before him. No judgement shall be entered after a trial without the order of the Judge.

39. Upon every trial the Registrar or other proper officer shall record all such findings of fact as the Judge may direct and the directions, if any, of the Judge as to judgement, and the certificates, if any, granted by the Judge, in a book to be kept for the purpose.

40. If the Judge shall direct that any judgement be entered for any party, the Registrar or other proper officer shall enter judgement accordingly.

41. Trials with assessors shall take place in such manner and upon such terms as the Court shall direct.

42. In every action tried by a Judge with a jury in which damages are claimed for injury to person and property caused by the negligent driving of a mechanically propelled vehicle the liability for which is required to be covered by an approved policy of insurance under the Road Traffic Act, 1961, section 56, the Judge shall direct the jury to apportion the damages (if any) awarded between the injury to person and the injury to property.

V. Reference to Master as to damages.

43. The arrangement and regulation of the course of proceeding under a reference to the Master as to damages shall be wholly subject to the control and direction of the Master.

44. The evidence in all cases shall be taken down at the time by the Master, and preserved by him.

45. The result of the inquiry before the Master shall be stated in a certificate signed by him, and such certificate, when settled, shall be engrossed, and when signed shall be filed, and thereupon such certificate shall stand confirmed unless within four days after the filing thereof a notice of motion be served to set aside or vary the same.

46. Every such notice of motion shall specify the grounds on which it is intended to apply to set aside or vary such certificate.

47. Where the Master's certificate shall stand confirmed under rule 44, or shall on such motion as therein mentioned be confirmed, final judgement may forthwith be entered accordingly.

48. In every action or proceeding in which it shall appear to the Court that the amount of damages sought to be recovered is substantially a matter of calculation, the Court may direct that the amount for which final judgement is to be entered shall be ascertained by the Master or other proper officer of the Court, and the attendance of witnesses and the production of documents before the Master or such officer may be compelled by subpoena, and the Master or such officer may adjourn the inquiry from time to time, and shall certify the amount found by him, and the like proceedings may thereupon be had as to taxation of costs, entering judgement, and otherwise, as upon the finding of a jury.

49. Where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment.