Rules of the Superior Courts
Amendment to: Order 36
S.I. No. 254 of 2016: Rules of the Superior Courts (Conduct of Trials) 2016
1. (1) These Rules, which may be cited as the Rules of the Superior Courts (Conduct of Trials) 2016, shall come into operation on the 1st day of October 2016.
(2) These Rules shall be construed together with the Rules of the Superior Courts.
(3) The Rules of the Superior Courts as amended by these Rules may be cited as the Rules of the Superior Courts 1986 to 2016.
2. The Rules of the Superior Courts are amended:
(iv) by the substitution for the caption preceding rule 1 of Order 36 of the following caption:
“I. Place, mode and sequence of trial”
(v) by the substitution for rule 9 of Order 36 of the following rule:
“9. (1) 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:
(2) Subject to the provisions of the preceding rules of this Order, the Judge chairing any case management conference or pre-trial conference (each within the meaning of Order 63A, Order 63B or, as the case may be, Order 63C) or the trial Judge may in any cause or matter:
make an order:
(i) directing that the trial be conducted in particular stages (in this rule, “modules”) and determining the questions, issues or set of questions or issues of fact, or of fact and law, to be the subject of each or any module, and the sequence in which particular modules shall be tried;
(ii) specifying the nature of the evidence, or the witnesses, including expert witnesses, required to enable the Court to determine the questions or issues arising in each or any module;
(iii) directing the exchange and filing in Court, either in advance of each or any module or following the conclusion of the module concerned, of written submissions on the questions or issues of law arising in that module.
(3) Where a trial is being conducted in accordance with an order made under sub-rule (2), the provisions of these Rules which relate to management of time at trial, expert evidence and preparation for trial (including Parts VI and XI of this Order; rules 14 to 22 inclusive of Order 63A; rules 13 to 21 inclusive of Order 63B, and rules 6 to 16 inclusive of Order 63C) shall, unless the Judge otherwise orders, apply to each module as if it were a separate trial”;
(vi) by the substitution for rules 41 and 42 and the caption preceding rule 43 of Order 36 of the following rules and caption:
“V. Trials with assessors
41. (1) The Court may, on the application of a party or of its own motion and having heard the parties, appoint a person to assist the court in understanding or clarifying a matter, or evidence in relation to a matter, in respect of which that person (in this rule referred to as an “assessor”) has skill and experience.
(2) Trials with assessors appointed in accordance with this rule, Order 63B, rule 23 or Order 64, rule 43, shall take place in such manner and upon such terms as the Court shall direct.
(3) The Court may appoint an assessor nominated by the parties or nominated by the Court (having heard the parties), and on such terms as to the payment of the fees of the assessor and otherwise as the Court may direct.
(4) The fees to be paid to an assessor shall be determined by the Court, having heard the parties, in such amount or by such measure as the Court considers reasonable, and shall form part of the costs of the proceedings.
(5) The Court may order any party:
a specified sum in respect of or on account of an assessor’s fees and, where the Court so orders, the assessor shall not be required to act until the said sum has been paid or, as the case may be, deposited.
(6) An assessor appointed in accordance with this rule, Order 63B, rule 23 or Order 64, rule 43 shall take such part in the proceedings as the Court may direct and in particular the Court may direct an assessor to—
(a) prepare a report for the Court on any matter at issue in the proceedings; and
(b) attend the whole or any part of the trial to advise the Court on any such matter and be available thereafter to assist the Court as aforesaid.
(7) Where an assessor prepares a report for the Court before the trial has begun—
(8) Where an assessor provides advice or other information to the Court, the Court shall inform the parties of such advice or information and afford each of them an opportunity to make submissions in respect of it.
VI. Management of time at trial
42. (1) The Court or an officer of the Court may require any party to proceedings to provide a reasoned estimate of the time likely to be spent in the trial of the proceedings, including a list of the witnesses intended to be called by that party and an estimated time for the examination or cross-examination (as the case may be) of each witness intended to be called by that party or by any other party.
(2) The trial of proceedings shall, as regards the time available for any step or element, be under the control and management of the trial Judge, and the trial Judge may, from time to time, make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the interests of justice.
(3) The trial Judge may:
(a) having regard to the period of time fixed for the trial, and
(b) having considered any materials (including any reports and summaries or statements of the evidence of any witnesses) delivered to him or her in advance of the trial in accordance with any provision of these Rules or any order or direction of the Court, and
(c) having heard the parties,
make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the requirements of justice which may, without limitation, include:
(I) orders fixing or limiting the amount of time allowed to each party for opening and closing the case (including, subject to paragraph (II)(d), the making of oral submissions on points or issues of law) and for examining and cross-examining each witness, which may include an order allowing each party an amount of time (out of the total time set aside for the trial of the proceedings) for its presentation of its case, which may be used in opening the case, in closing the case, in examining in chief or in re-examining any witness called by that party, and in cross-examining any witnesses called by any other party, and
(a) as to the issues on which the Court requires evidence;
(b) as to the nature of the evidence required to enable such issues to be determined;
(c) as to the manner in which such evidence is to be put before the Court;
(d) where written submissions on points or issues of law have been lodged in advance of the trial, as to whether the Judge shall require any oral submissions on points or issues of law in addition to those written submissions, or
(e) requiring the parties or any party at any stage of the trial to identify the issues which arise or remain for determination by the Court and the questions which the Court is required to decide in order to determine each such issue.
(4) For the purposes of considering the making of an order under sub-rule (3) or otherwise, the trial Judge may require counsel for each party (or a party, if appearing in person) to indicate how much time is required by that party to be taken in the examination or cross-examination of each witness, or in any other step in the trial.
(5) The trial Judge may, having regard to any order or direction given in accordance with sub-rule (3), allow the time proposed by any party, or may allow such other period of time as the Court considers is consistent with the efficient conduct of the trial and with the requirements of justice.
(6) The re-examination of witnesses shall be limited to new matters that were raised for the first time on cross-examination and shall be concise.
(7) A party shall avoid duplicating the same evidence by different witnesses, save where such duplication is necessary for the just determination of the proceedings.
(8) Without prejudice to any other powers conferred on the Court by Order 99, in any case in which the Court is satisfied that the evidence of a witness called by a party was (in whole or in part):
the Court may:
VII. Reference to Master as to damages”
(i) make an order disallowing (in whole or in part) recovery by a party of the expenses of the witness concerned or the costs occasioned by calling the evidence of the witness concerned, or
(ii) order the payment by that party (in whole or in part) of the costs occasioned to any other party by the calling of the witness concerned, provided that no such order shall be made where the Court is satisfied that any duplication of evidence was necessary for the just determination of the proceedings.