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Rules of the Superior Courts

Order: 63A

Commercial Proceedings : S.I. No. 2 of 2004

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

No63A-S.I. No. 31 Of 2008: Rules Of The Superior Courts (Cape Town Convention) 2008
No63A-S.I. No. 361 Of 2010: Rules Of The Superior Courts (Arbitration) 2010


I. Preliminary

Definitions

1. In this Order unless the context or subject matter otherwise requires –

“Commercial List” means the list in which proceedings have been entered in accordance with rule 4 of this Order;

“commercial proceedings” means:

      (a) proceedings in respect of any claim or counterclaim, not being a claim or counterclaim for damages for personal injuries, arising from or relating to any one or more of the following:

        (i) a business document, business contract or business dispute where the value of the claim or counterclaim is not less than €1,000,000;

        (ii) the determination of any question of construction arising in respect of a business document or business contract where the value of the transaction the subject matter thereof is not less than €1,000,000;

        (iii) the purchase or sale of commodities where the value of the claim or counterclaim is not less than €1,000,000;

        (iv) the export or import of goods where the value of the claim or counterclaim is not less than €1,000,000;

        (v) the carriage of goods by land, sea, air or pipeline where the value of the claim or counterclaim is not less than €1,000,000;

        (vi) the exploitation of oil or gas reserves or any other natural resource where the value of the claim or counterclaim is not less than €1,000,000;

        (vii) insurance or re-insurance where the value of the claim or counterclaim is not less than €1,000,000;

        (viii) the provision of services (not including medical, quasi-medical or dental services or any service provided under a contract of employment) where the value of the claim or counterclaim is not less than €1,000,000;

        (ix) the operation of markets or exchanges in stocks, shares or other financial or investment instruments, or in commodities where the value of the claim or counterclaim is not less than €1,000,000;

        (x) the construction of any vehicle, vessel or aircraft where the value of the claim or counterclaim is not less than €1,000,000;

        (xi) business agency where the value of the claim or counterclaim is not less than €1,000,000;


      (b) proceedings in respect of any other claim or counterclaim, not being a claim or counterclaim for damages for personal injuries, which the Judge of the Commercial List, having regard to the commercial and any other aspect thereof, considers appropriate for entry in the Commercial List;

      (c) any application or proceedings under the Arbitration Acts 1954 to 1998 (other than an application in pursuance of section 5 of the Arbitration Act, 1980 to stay proceedings in respect of a matter referred to arbitration) where the value of the claim or any counterclaim is not less than €1,000,000;

      (d) any proceedings instituted or any application or reference made or appeal lodged under the provisions of the Patents Act, 1992, not including an application under section 108(4) of that Act;

      (e) any proceedings instituted, application made or appeal lodged under –


        (i) the Trade Marks Act, 1996;

        (ii) the Copyright and Related Rights Act, 2000;

        (iii) the Industrial Designs Act, 2001;


      (f) any proceedings instituted for relief in respect of passing off;

      (g) any appeal from, or application for judicial review of, a decision or determination made or a direction given by a person or body authorised by statute to make such decision or determination or give such direction, where the Judge of the Commercial List considers that the appeal or application is, having regard to the commercial or any other aspect thereof, appropriate for entry in the Commercial List;

“initial directions hearing” means a hearing in accordance with rules 4 (5) (b) or 6 of this Order for the purpose of the giving of directions or making of orders as to preparation of the proceedings for trial and case management, and for the other purposes mentioned in rule 6;

“Judge of the Commercial List” means the Judge of the High Court for the time being assigned by the President of the High Court to carry out the functions of Judge of the Commercial List conferred by this Order;

“Judge” means any Judge of the High Court, including the Judge of the Commercial List, assigned for the time being by the President of the High Court to hear and determine proceedings, or any application in relation to proceedings, entered in the Commercial List;

“Registrar” means the registrar, for the time being and with the approval of the President of the High Court, assigned by the officer for the time being having the management of the Central Office to carry out the functions of Registrar conferred by this Order;

Application of this Order

2. Save where otherwise expressly provided by this Order, in the event that any conflict shall arise between the provision of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order shall, in respect of any proceedings entered in the Commercial List in accordance with rule 4 of this Order, prevail.

Use of forms

3. (1) The forms in Appendix X to these Rules shall be used as provided for in this Order in applications for the entry of proceedings in the Commercial List or in proceedings entered in the Commercial List, as the case may be, with such variations as the Judge of the Commercial List or the Registrar may permit or circumstances may require. The directions contained in any form shall be observed in relation thereto. Where such forms are applicable, any costs occasioned by failure to comply with the provisions of any rule relating to the content of a form or by failure to comply with any directions contained in a form shall be borne by or disallowed to the party using the same, unless the Judge shall otherwise direct.

(2) Applications made to the Judge of the Commercial List for the entry of proceedings in the Commercial List, and all proceedings entered therein shall be entitled:


"THE HIGH COURT

COMMERCIAL".

Entry in the Commercial List


4. (1) Upon application made in accordance with sub rule 2 of this rule, commercial proceedings may be entered in the Commercial List by order of the Judge of the Commercial List.

(2) A party to commercial proceedings may, at any time prior to:

      (a) the close of pleadings, in the case of plenary proceedings, or

      (b) completion of the filing of affidavits, in the case of summary proceedings or any other proceedings to be heard on affidavit without pleadings,

by motion on notice to the other party or parties to those proceedings, apply to the Judge of the Commercial List for an order entering the proceedings in the Commercial List. The notice of motion shall have appended thereto a certificate of the solicitor for the applicant to the effect that the proceedings are appropriate to be treated as commercial proceedings within the meaning of rule 1 of this Order, and setting out such facts relating to the proceedings as shall demonstrate this.

(3) At the hearing of the motion referred to in sub rule 2 of this rule, the applicant shall produce the certificate appended to the notice of motion, or a certified copy or certified copies thereof,

(4) Upon the hearing of the motion referred to in sub rule 2 of this rule, the Judge of the Commercial List may direct that the proceedings be entered in the Commercial List, in which event all further motions or applications in respect of such proceedings shall be made to a Judge.

(5) Where the Judge of the Commercial List directs that proceedings be entered in the Commercial List in accordance with this rule, he shall:

      (a) fix a date for the initial directions hearing; or

      (b) treat the hearing of the motion as the initial directions hearing.

II. Pre-trial procedure

General

5. A Judge may, at any time and from time to time, of his own motion and having heard the parties, give such directions and make such orders, including the fixing of time limits, for the conduct of proceedings entered in the Commercial List, as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings.

Initial directions

6. (1) Without prejudice to the generality of rule 5 of this Order, a Judge may, at the initial directions hearing –

      (a) of his own motion and after hearing the parties, or

      (b) on the application of a party by motion on notice to the other party or parties returnable to the initial directions hearing,

give any of the following directions to facilitate the determination of the proceedings in the manner mentioned in that rule:
      (i) as to whether the proceedings shall continue –

        (I) with pleadings and hearing on oral evidence,

        (II) without formal pleadings and by means of a statement of issues of law or fact, or of both law and fact,

        (III) without formal pleadings and to be heard on affidavit with oral evidence, or

        (IV) without formal pleadings and to be heard on affidavit without oral evidence;


      (ii) fixing any issues of fact or law to be determined in the proceedings;

      (iii) for the consolidation of the proceedings with another cause or matter pending in the High Court;

      (iv) for the defining of issues by the parties, or any of them, including the exchange between the parties of memoranda for the purpose of clarifying issues;

      (v) allowing any party to alter or amend his indorsement or pleadings, or allowing amendment of a statement of issues;

      (vi) requiring delivery of interrogatories, or discovery or inspection of documents;

      (vii) requiring the making of inquiries or taking of accounts;

      (viii) requiring the filing of lists of documents, either generally or with respect to specific matters;

      (ix) directing any expert witnesses to consult with each other for the purposes of –


        (a) identifying the issues in respect of which they intend to give evidence,

        (b) where possible, reaching agreement on the evidence that they intend to give in respect of those issues, and

        (c) considering any matter which the Judge may direct them to consider,

and requiring that such witnesses record in a memorandum to be jointly submitted by them to the Registrar and delivered by them to the parties, particulars of the outcome of their consultations:

provided that any such outcome shall not be in any way binding on the parties;

(x) providing for the exchange of documents or information between the parties, or for the transmission by the parties to the Registrar of documents or information electronically on such terms and subject to such conditions and exceptions as a Judge may direct;

(xi) for the examination upon oath before a Judge, Registrar or other officer of the Court, or any other person, and at any place, of any witness, in accordance with Part II of Order 39;

(xii) as to whether or not the proceedings should, by virtue of their complexity, the number of issues or parties, the volume of evidence, or for other special reason, be subject to case management in accordance with Rules 14 and 15 of this Order;

(xiii) on the application of any of the parties or of his own motion, that the proceedings or any issue therein be adjourned for such time, not exceeding twenty-eight days, as he considers appropriate to allow the parties time to consider whether such proceedings or issue ought to be referred to a process of mediation, conciliation or arbitration, and where the parties decide so to refer the proceedings or issue, to extend the time for compliance by any party with any provision of these Rules or any order of the Court.

(2) Without prejudice to any enactment or rule of law by virtue of which documents or evidence are privileged from disclosure, to assist him in deciding whether or not to make any order or give any direction in accordance with sub rule 1 of this rule, a Judge may direct the parties, or any of them, to provide information in respect of the proceedings, including:

      a) a list of the persons expected to give evidence;

      b) particulars of any matter of a technical or scientific nature which may be at issue or may be the subject of evidence;

      c) a reasoned estimate of the time likely to be spent in -

      (i) preparation of the proceedings for trial, and

      (ii) the trial of the proceedings;

      d) particulars of any mediation, conciliation or arbitration arrangements which may be available to the parties.

(3) A Judge may, where he deems fit, at the initial directions hearing, hear any application for relief of an interlocutory nature, whether in the nature of an injunction or otherwise .

Motions and Applications

7. All notices of motion, applications and the affidavits or other documents grounding the same shall be lodged with the Registrar and shall bear the code or number assigned to the application or proceedings, as the case may be, in accordance with rule 27 of this Order.

8. (1) A Judge may direct that the parties to a motion or application shall prepare a written submission, bearing the name of the author, which submission shall be concise and avoid lengthy argument, specifying:

      (i) the nature of the case generally and the background facts insofar as they are relevant to the matter before the court;

      (ii) the submissions of law to be relied upon, citing the supporting authorities;

      (iii) the submissions of fact to be made with reference to the evidence;

(2) The written submissions shall be lodged with the Registrar not less than one clear day prior to the date of the hearing of the motion or application.

Interrogatories

9. A party to proceedings entered in the Commercial List may at any time after delivering his statement or points of claim, or defence or points of defence, as the case may be, deliver interrogatories in writing for the examination of any other party to the proceedings, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer: provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose; provided also that interrogatories which do not relate to any matters in question in the proceedings shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

10. Interrogatories delivered in accordance with rule 9 of this Order shall be in the Form No. 1 in Appendix X to these Rules.

11. Answers to interrogatories shall be made by affidavit to be filed within twenty-one days from receipt thereof, or within such other time as a Judge may allow.

12. An affidavit in answer to interrogatories shall be in the Form No. 2 in Appendix X to these Rules.

13. The provisions of rules 3, 5, 6, 7, 10 and 11 of Order 31 of these Rules shall, with any necessary modifications, apply to any interrogatories delivered or to be delivered in accordance with this rule.

Case management

14. (1) Where, in accordance with rule 6, a Judge directs that the proceedings be subject to case management, he shall fix a date for a case management conference, and may give any further directions for the completion prior to such conference of such, if any, steps in the proceedings (including the preparation of a case booklet in accordance with sub rule 9 of this rule) as he considers appropriate.

(2) The case management conference shall be chaired and regulated by a Judge.

(3) Where the case management conference is adjourned, it shall be adjourned to a specific date.

(4) The case management conference shall be attended by the solicitors appearing for each of the parties or, where a party, not being a body corporate, is not represented by a solicitor, by the party himself. Where the Judge chairing the case management conference considers it necessary or desirable, he may direct that party, or, where the party is a body corporate, the proper officer of a party, attend the case management conference, notwithstanding the fact that the party may be represented by a solicitor.

(5) Each solicitor attending the case management conference shall ensure that he is sufficiently familiar with the proceedings, and has authority from the party he represents to deal with any matters that are likely to be dealt with at the conference.

(6) Where a party is represented by counsel, such counsel may attend the case management conference, but the attendance of only one of such counsel will be allowed in the taxation or fixing of costs.

(7) The purpose of the case management conference shall be to ensure that the proceedings are prepared for trial in a manner which is just, expeditious and likely to minimise the costs of the proceedings, and in particular that, as soon as may be in advance of the trial:

      a) the issues, whether as to fact or law, are defined as clearly, as precisely and as concisely, as possible;

      b) all pleadings, affidavits and statements of issues are served;

      c) any applications by letter for particulars and replies thereto, any admissions, or requests for admissions, notices to admit documents or facts and replies thereto, and any affidavits made in pursuance of any notices to admit facts or documents, are served or delivered, as the case may be;

      d) all applications for relief of an interlocutory nature intended to be made by any of the parties are made;

      e) any directions given or orders made at the initial directions hearing, or in the course of a case management conference have been complied with.

(8) Where no direction has been given that the proceedings be subject to case management, either party may, at any time before the trial, apply to the Judge of the Commercial List by motion on notice to the other party or parties for a direction that a case management conference be held. The affidavit grounding the motion shall set out clearly and concisely the grounds on which the case management conference is sought. Where any party objects to such a direction, they shall furnish their objections by replying affidavit.

(9) The plaintiff, applicant or other party prosecuting the proceedings shall, in consultation with the other party or parties, prepare a case booklet to be lodged with the Registrar and served on the other party or parties not later than four clear days prior to the first date fixed for the case management conference.

(10) The case booklet shall contain –

      (a) a case summary, comprising

        (i) an agreed outline of the case and sequence of relevant events not in dispute;

        (ii) a list of those issues which are not in dispute;

        (iii) an agreed statement of those issues that are in dispute, and


      (b) pre-trial documentation in chronological sequence, including (where appropriate) copies of pleadings exchanged, affidavits filed (other than affidavits of service), statements of issues, orders made or directions given, and any correspondence between the parties, not being expressed to be “without prejudice”, relating to the preparation of the case for trial.
(11) The case booklet shall be produced and maintained by the party responsible for preparing the same in such form, including electronic form as the Judge of the Commercial List may direct and, where the Judge so directs, shall be lodged or served by electronic means, and on such conditions and subject to such exceptions as he may prescribe.

(12) The party responsible for preparing the case booklet shall, in consultation with the other party or parties, revise or add to its contents from time to time as necessary.

15. At the case management conference the Judge chairing the case management conference may:

      (a) fix a timetable for the completion of preparation of the case for trial, and may for that purpose adopt any proposed timetable agreed by the parties if satisfied that it is reasonable;

      (b) make any orders or give any directions which he may make or direct under rule 6(1) or (2) of this Order;

      (c) if he considers that there is undue delay in, or he is otherwise dissatisfied with, the conduct of the proceedings, and without prejudice to any powers conferred on the Judge by Order 33, rule 11, require the party appearing to be responsible therefor, or the proper officer of or solicitor instructed in the proceedings by that party, to attend before him to explain the delay or other conduct with which he is dissatisfied, and may thereupon make or give such ruling or direction as he may consider appropriate for the purposes of expediting the proceedings or the conduct thereof;

      (d) without prejudice to any powers conferred on the Judge by Order 99, rule 37, sub rule13, disallow the costs of any indorsement of claim, pleading statement of issues or other document in the proceedings which contains unnecessary matter, or is of unnecessary length, and award against that party the costs thereby occasioned to any other party;

      (e) without prejudice to any powers conferred on the Judge by Order 33, rule 11 and Order 99, rule 37, sub rule 31, disallow the costs of any party occasioned by a delay or default by that party in complying with a time limit for doing any act or taking any proceeding, and award against that party the costs thereby occasioned to any other party.

Preparation for trial

16. (1) Where no direction has been given that the proceedings be subject to case management, once the exchange of pleadings, affidavits or statements of issues has been completed, any of the parties may apply to the Registrar for the fixing of a date for a pre-trial conference.

(2) Where a direction has been given that the proceedings be subject to case management, the Judge chairing the case management conference shall fix a date for a pre-trial conference once all orders made or directions given in the course of the case management conference have been complied with.

17. Each party shall, in consultation with their respective counsel, complete and lodge with the Registrar not later than four clear days before the date fixed for the pre-trial conference a pre-trial questionnaire in the Form No. 3 in Appendix X to these Rules.

18. (1) The pre-trial conference shall be chaired and regulated by a Judge.

(2) Where the pre-trial conference is adjourned, it shall be adjourned to a specific date.

(3) (a) Where a party intends to be represented at the trial by a solicitor then the leading solicitor whom it is intended shall so represent the party shall attend the pre-trial conference.

(b) Where a party intends to be represented at the trial by solicitor and counsel then the leading counsel whom it is intended shall so represent the party shall attend the pre-trial conference.

19. At the pre-trial conference the Judge chairing the same shall establish what steps remain to be taken to prepare the case for trial, the likely length of the trial and the arrangements, if any, for witnesses, information and communications technology (including video conferencing) and any other arrangements which require to be made for the trial, and may make any orders and give any directions in respect of arrangements for the trial as he considers necessary.

20. When the Judge chairing the pre-trial conference is satisfied that the proceedings are ready to proceed to trial, he shall fix a trial date.

21. (1) Subject to sub rule 2 of this rule, unless the Judge chairing the pre-trial conference otherwise directs, the plaintiff, applicant or other party prosecuting the proceedings shall, in consultation with the other party or parties, prepare and lodge with the Registrar, not less than four clear days prior to the date fixed for the trial:

      (a) a trial booklet, indexed and in chronological sequence, and containing copies of any pleadings, affidavits, statements of issues, documents or extracts therefrom in respect of which agreement has been reached between the parties under sub rule 2 of this rule, statements provided for in rule 22 of this Order, correspondence and any other documents intended to be relied upon at the trial, and

      (b) a case summary, comprising -


        (i) an agreed outline of the case and sequence of relevant events not in dispute;

        (ii) a list of those issues which are not in dispute;

        (iii) a list of the persons principally involved in the matters or events the subject of the proceedings and,

        (iv) where appropriate, a glossary of technical terms which are likely to be used in the course of the trial.

(2) (a) The Judge chairing the pre-trial conference may request the parties to consult with each other with a view to agreeing, where possible, upon a list of the documents and, as appropriate, any extracts from documents intended to be relied upon at the trial.

(b) In the event of any such agreement being reached by the parties , the plaintiff, applicant or other party prosecuting the proceedings shall, in consultation with the other party or parties, prepare and lodge with the Registrar, not less than four clear days prior to the date fixed for the trial, a booklet indexed and in chronological sequence, containing copies of such documents or extracts and, where appropriate, indicating, by means of tags, colour highlighting or otherwise as the Judge of the Commercial List or the Registrar may direct, any relevant extracts therefrom intended to be relied upon at the trial.

(c) In the event that the parties are unable to reach any such agreement they shall notify the Registrar and, unless the Judge chairing the pre-trial conference shall otherwise order, the plaintiff, applicant or other party prosecuting the proceedings shall proceed in accordance with sub rule 1 of this rule as if no request had been made by the Judge under paragraph (a) of this sub rule.

(3) The trial booklet shall be produced by the party responsible for preparing the same in such form, including electronic form as the Judge of the Commercial List may direct and, where the Judge of the Commercial List so directs, shall be lodged or served by electronic means, and on such conditions and subject to such exceptions as he may prescribe.

III. Evidence

Oral evidence

22. (1) Unless a Judge shall otherwise order, a party intending to rely upon the oral evidence of a witness as to fact or of an expert at trial shall, not later than one month prior to the date of such trial in the case of the plaintiff, applicant or other party prosecuting the proceedings and not later than seven days prior to that date in the case of the defendant, respondent or other party defending the proceedings, serve upon the other party or parties a written statement outlining the essential elements of that evidence signed and dated by the witness or expert, as the case may be.

(2) A Judge may, in exceptional circumstances to be recited in the order and after hearing all of the parties, make an order directing that the written statement referred to in sub rule 1 of this rule or any part thereof shall be treated as the evidence in chief of the witness or expert concerned but only after it has been verified on oath by such witness or expert.

Evidence by video link or other means

23. (1) A Judge may allow a witness to give evidence, whether from within or outside the State, through a live video link or by other means.

(2) Evidence given in accordance with sub rule 1 of this rule shall be recorded by video or otherwise as the Judge may direct.

IV. Trial venue

24. All applications made to the Judge of the Commercial List for the entry of proceedings, all proceedings entered in the Commercial List, and all trials of such proceedings shall, unless a Judge shall in any particular proceedings and for special reason otherwise order, take place in an appropriate courtroom designated by the President of the High Court in consultation with the Judge of the Commercial List and situate in Dublin.

V. The Registrar

Functions

25. The Registrar may refer to a Judge proceedings listed in the Commercial List in respect of which he considers there has been undue delay.

Records

26. (1) The Registrar shall establish and maintain the following records:

      (a) a register of applications for entry of proceedings in the Commercial List;

      (b) a register of proceedings entered in the Commercial List;

      (c) a register of orders made or directions given by Judges in proceedings listed in the Commercial List,

      (d) calendar of sittings of Judges;

      (e) a record of progress in each of the proceedings entered in the Commercial List.

(2) Such records may be held electronically and may be held separately or in an amalgamated form.

27. The Registrar shall establish and maintain a file for each application for entry of proceedings in, and for each of the proceedings entered in the Commercial List, which file may, in whole or in part, be in electronic form, and each such application or proceedings shall be assigned a code or number in sequence for the purposes of identification.

VI. Costs

28. The costs of the initial directions hearing shall, unless the Judge before whom that hearing takes place otherwise orders, be deemed to be costs in the cause.

29. The Judge of the Commercial List may prescribe requirements as to the form and content of bills of costs to be prepared in respect of proceedings entered in the Commercial List. Where he has not done so, such bills of costs shall be prepared in the manner prescribed by Order 99, rule 29.

30. Upon the determination of any interlocutory application by a Judge, the Judge shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.

VII. Electronic service, exchange and lodgement of documents

31. (1) Documents required under these Rules to be served or exchanged in commercial proceedings entered in the Commercial List may, where the President of the High Court by practice direction permits, and on such terms and conditions and subject to such exceptions as the President of the High Court may by such practice direction specify, be served or exchanged, as the case may be, electronically.

(2) Documents required under these Rules to be filed in commercial proceedings entered in the Commercial List may, where the President of the High Court by practice direction permits, and on such terms and conditions and subject to such exceptions as the President of the High Court may by such practice direction specify, be filed electronically with the Registrar and stored by the Registrar in like manner.

(3) Without prejudice to the generality of sub rules 1 or 2 of this rule, a practice direction given by the President of the High Court in pursuance of either of those sub rules may prescribe requirements as to-

      a) the hardware and other equipment, diskettes or CD-Roms and communications protocol or protocols to be employed by parties filing, serving or exchanging documents electronically;

      b) the use of passwords, electronic signatures, digital signatures or other means of authenticating documents filed, served or exchanged electronically;

      c) the use of firewalls, anti-virus tools or other devices or applications for the purpose of avoiding damage to the information system of the Courts Service or of any party or their solicitor or counsel;

      d) compliance with practices or protocols for the purpose of ensuring that harmful, deleterious or offensive material does not enter the information system of the Courts Service or of any party or their solicitor or counsel;

      e) the formatting, organising, identifying, coding and indexing of documents to be filed, served or exchanged electronically;

      f) the manner in which documents filed, served or exchanged electronically, or copies of such documents, may be presented or otherwise used in Court.