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Rules of the Superior Courts

Order: 39

Evidence

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

No39-S.I. No. 166 Of 1997: Rules Of The Superior Courts (No. 2), 1997
No39-S.I. No. 391 Of 1998: Rules Of The Superior Courts (No. 6) (Disclosure Of Reports And Statements), 1998
No39-S.I. No. 3 Of 1999: Rules Of The Superior Courts (Proof Of Foreign Diplomatic, Consular And Public Documents), 1999
No39-S.I. No. 13 Of 2007: Rules Of The Superior Courts (Evidence) 2007
No39-S.I. No. 254 Of 2016: Rules Of The Superior Courts (Conduct Of Trials) 2016
No39-S.I. No. 139 Of 2019: Rules Of The Superior Courts (Order 39) 2019


I. General.

1. In the absence of any agreement in writing between the solicitors of all parties, and subject to these Rules, the witnesses at the trial of any action, or at any assessment of damages, shall be examined viva voce and in open court, but the Court may, at any time for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner; provided that, where it appears to the Court that the other party, bona fide, desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

2. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the Court, to be obtained at the time of making any such application, and in any other case, upon the party desiring to use such evidence giving two days previous notice to the other parties of his intention to read such evidence.

3. Attested copies of all documents filed in the High Court shall be admissible in evidence in all causes and matters and between all persons or parties to the same extent as the originals would be admissible.

II. Examination of witnesses.

4. The Court may, in any cause or matter where it shall appear necessary, make any order for the examination upon oath before the Court, or any officer of the Court, or any other person, and at any place, of any witness, and may allow the deposition of such witness to be adduced in evidence on such terms (if any) as the Court may direct.

5. (1) If in any case the Court shall so order, there shall be issued a request to examine witnesses in lieu of a commission; the forms Nos. 1 and 3 in Appendix D, Part II, shall be used for such order and request, respectively.

(2) Where an order is made for the issue of a request to examine a witness or witnesses in any foreign country, with which a convention in that behalf has been or shall be made, the following procedure shall be adopted:—

      (a) the party obtaining such order shall file in the Central Office an undertaking in the Form No. 2 in Appendix D,Part II.

      (b) such undertaking shall be accompanied by—


        (i) a request in the Form No. 3 in Appendix D, Part II, with such variations as may be directed in the order for the issue thereof, together with a translation of such request into the language of the country in which the same is to be executed;

        (ii) a copy of the interrogatories (if any) to accompany the request and a translation thereof;

        (iii) a copy of the cross-interrogatories (if any) and a translation thereof.

(3) Where an order is made for the examination of a witness or witnesses before the Irish Consular authority in any foreign country with which a convention in that behalf has been or shall be made, such order shall be in the Form No. 4 in Appendix D, Part II.

6. The Court may in any cause or matter, at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court may think fit to be produced; provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.

7. Any person wilfully disobeying any order requiring his attendance for the purpose of being examined or producing any document, shall be deemed guilty of contempt of Court, and may be dealt with accordingly.

8. Any person required to attend for the purpose of being examined, or of producing any document, shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court.

9. Where any witness or person is ordered to be examined before any officer of the Court, or before any person appointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the summons, and pleadings, if any, or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties.

10. The examination shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination.

11. The depositions taken before an officer of the Court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, so as to represent as nearly as may be the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as may think fit to attend. If the witness shall refuse to sign the depositions, the examiner shall sign the same. The examiner may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question.

12. If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed in the Central Office, and thereupon the party requiring the attendance of the witness may apply to the Court ex parte or on the notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be.

13. If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Central Office to be there filed, and the validity of the objection shall be decided by the Court.

14. If any case under rules 12 and 13, the Court shall have power to order the witness to pay any costs occasioned by his refusal or objection.

15. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Central Office, and there filed.

16. The person taking the examination of a witness under this Order may, and if need be shall make, a special report to the Court touching such examination, and the conduct or absence of any witness or other person thereon, and the Court may direct such proceedings and make such order as upon the report it may think just.

17. Except where by this Order otherwise provided or directed by the Court no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court is satisfied that the deponent is dead, or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence saving all just exceptions without proof of the signature to such certificate.

18. Any officer of the Court or other person, directed to take the examination of any witness or person, may administer oaths.

19. Any party in any cause or matter may by subpoena ad testificandum or duces tecum require the attendance of any witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such officer or person for cross-examination.

20. Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial.

21. The practice with reference to the examination, cross-examination, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage.

22. The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may be given in any case.

23. No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the Court be received at the hearing or trial thereof, unless within one month after issue joined or within such longer time as may be allowed by special leave of the Court, notice in writing shall have been given by the party intending to use the same to the opposing party of his intention in that behalf.

24. All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.

III. Subpoena.

25. Where it is intended to apply for the issue of a subpoena, a praecipe for that purpose, in the Form No. 1 in Appendix D, Part I, and containing the name or firm and the registered place of business of the solicitor so applying, shall in all cases be delivered and filed at the Central Office.

26. A subpoena shall be in one of the Forms Nos. 2 to 5 in Appendix D, Part I.

27. A subpoena for the attendance of a witness before the Master or the Examiner may issue from the Central Office upon a note from the Master or Examiner as the case may be.

28. Every subpoena other than a subpoena duces tecum shall contain three names where necessary or required, but may contain any larger number of names.

29. No more than three persons shall be included in one subpoena duces tecum, and the party applying for the same shall be at liberty to apply for a subpoena for each person if it shall be deemed necessary or desirable.

30. No subpoena shall issue for the production of any record in the custody of the Paymaster-General, or other officer of the State, without an order of the Court; and such officer having the custody of any such record shall not be obliged to remove the same under such order from the depository where same is placed without such order, to be served upon him with the subpoena duces tecum.

31. Any officer of the Court required to attend with any record or document at any court or place, elsewhere than in Dublin, shall be entitled to require that the solicitor or party desiring his attendance shall deposit with him a sufficient sum of money to answer his just fees, charges and expenses, in respect of such attendance, and undertake to pay any further just fees, charges, and expenses which may not be fully answered by such deposit.

32. In the interval between the issue and service of any subpoena the party applying for the same may correct any error in the names of parties or witnesses, and may have it re-sealed upon leaving a corrected praecipe for such subpoena marked with the words "altered and re-sealed" and signed with the name and registered place of business of the solicitor applying.

33. The service of a subpoena shall be effected by delivering a copy thereof, indorsed with the name and address of the solicitor or party issuing the same, and at the same time producing the original.

34. The service of any subpoena shall be of no validity if not made within twelve weeks after its date.

IV. Perpetuating testimony.

35. Any person who would under the circumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim.

36. In all actions to perpetuate testimony touching any honour, title, dignity, or office, or any other matter or thing in which the State may have any estate or interest, the Attorney General may be made a defendant, and in all proceedings in which the depositions taken in any such action, in which the Attorney General was so made a defendant, may be offered in evidence, such depositions shall be admissible notwithstanding any objection to such depositions upon the ground that the State was not a party to the action in which such depositions were taken.

37. Witnesses shall not be examined to perpetuate testimony unless an action has been commenced for the purpose.

38. No action to perpetuate the testimony of witnesses shall be set down for trial.

V. Obtaining evidence for foreign tribunals.

39. Where under the Foreign Tribunals Evidence Act, 1856, or the Extradition Act, 1870, section 24, any civil or commercial matter, or any criminal matter, is pending before a court or tribunal of a foreign country, and it is made to appear to the Court, by commission rogatoire, or letter of request or other evidence as hereinafter provided, that such court or tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court may, on the ex parte application of any person shown to be duly authorised to make the application on behalf of such foreign court or tribunal, and on production of the commission rogatoire, or letter of request, or other evidence pursuant to the Foreign Tribunals Evidence Act, 1856, section 2, or such other evidence as the Court may require, make such order or orders as may be necessary to give effect to the intention of the Acts above mentioned in conformity with the Foreign Tribunals Evidence Act, 1856, section 1.

40. An order made under rule 39 shall be in the Form No. 1 in Appendix D, Part III.

41. The examination may be ordered to be taken before any fit and proper person nominated by the person applying, or before one of the officers of the Court, or such other qualified person, as to the Court may seem fit.

42. (1) Unless otherwise provided in the order for examination, the person before whom the examination is taken shall, on its completion forward the same to the Master, and on receipt thereof the Master shall append thereto a certificate, in the Form No. 2 in Appendix D, Part III, duly certified for use out of the jurisdiction and shall forward the depositions so certified, and the commission rogatoire or letter of request (if any) to the Minister for Foreign Affairs for transmission to the foreign court or tribunal requiring the same.

(2) Where the foreign court or tribunal so desires, the deposition shall be sent direct by the Master to the Consul or other official of the foreign government in Ireland for transmission to the foreign court or tribunal.

43. An order made under rule 39 may direct the said examination to be taken in such manner as may be requested by the commission rogatoire or letter of request from the foreign court or tribunal, or therein signified to be in accordance with the practice or requirements of such court or tribunal, or which may, for the same reason, be requested by the applicant for such order. In the absence of any such special directions being given in the order for examination, the same shall be taken in the manner prescribed in Part II of this Order.

44. Where a commission rogatoire, or letter of request, as mentioned in rule 39, is transmitted to the Chief State Solicitor by the Minister for Foreign Affairs with an intimation that it is desirable that effect should be given to the same without requiring an application to be made to the Court by the agents in Ireland of any of the parties to the action or matter in the foreign country, the Chief State Solicitor may make such applications and take such steps as may be necessary to give effect to such commission rogatoire, or letter of request, in accordance with rules 39 to 43 (inclusive).