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Rules of the Superior Courts

Amendment to: Order 39
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:


      (vii) by the insertion, immediately following rule 54 of Order 39 of the following captions and rules:

        “X. Evidence by video link or other means

        55. (1) Where the Court directs in accordance with section 26 of the Civil Law (Miscellaneous Provisions) Act 2008 that a party may participate in the trial of proceedings, or that a witness may give evidence, whether from within or outside the State, through a live video link or by other means, the Court shall give such further directions as to the participation or evidence as are necessary for the efficient conduct of the trial consistently with the requirements of justice.

        (2) Evidence given in accordance with sub-rule (1) shall be recorded electronically or otherwise as the Court directs.

        XI. Expert Evidence

        56. (1) Rules 59 to 61 inclusive apply to proceedings:

            (a) which is listed for trial in the Commercial List or which is required to be heard in the Competition List, or

            (b) in which an order may be made under Order 63C, rule 4.

        (2) In this rule and rules 57 to 61 inclusive:

        reference to a “case management conference” or a “pre-trial conference” is a reference to such a conference fixed in accordance with the provisions of Order 63A, Order 63B, or as the case may be, Order 63C;

        the “evidence” of an expert witness includes testimony as to fact and the expression of any opinion;

        “expert” means an expert witness.

        57. (1) It is the duty of an expert to assist the Court as to matters within his or her field of expertise. This duty overrides any obligation to any party paying the fee of the expert.

        (2) Every report of an expert delivered pursuant to these Rules or to any order or direction of the Court shall:

            (a) contain a statement acknowledging the duty mentioned in sub-rule (1);

            (b) disclose any financial or economic interest of the expert, or of any person connected with the expert, in any business or economic activity of the party retaining that expert, including any sponsorship of or contribution to any research of the expert or of any University, institution or other body with which the expert was, is or will be connected, other than any fee agreed for the preparation by the expert of the report provided or to be provided in the proceedings concerned and any fee and expenses due in connection with the participation of the expert in the proceedings concerned.

            58. (1) Expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings.

            (2) A Judge may—

            (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,

        make any of the following orders or give any of the following directions as to expert evidence:

            (i) requiring each party intending or proposing to offer expert evidence to identify–
              (a) the field in which expert evidence is required; and

              (b) where practicable, the name of the proposed expert;

            (ii) determining the fields of expertise in which, or the proposed experts by whom, evidence may be given at trial;

            (iii) fixing the time or times at which a report setting out the key elements of the of the evidence of each expert intended or proposed to be offered by each party shall be delivered to each other party concerned or exchanged and in default of such order being made, the provisions of sub-rules (1) to (5) inclusive of rule 46 shall apply to every such report;

            (iv) where two or more parties (in this rule, the “relevant parties”) wish to offer expert evidence on a particular issue, direct that the evidence on that issue is to be given by a single joint expert (in this rule, the “single joint expert”);

            (v) where the relevant parties cannot agree who should be the single joint expert—

              (a) select the expert from a list prepared or identified by the relevant parties; or

              (b) direct that the expert be selected in such other manner as the Court directs;

            (vi) as to the terms on which and manner in which the single joint expert is to be instructed;

            (vii) requiring any party:

              (a) to pay to the single joint expert, or

              (b) to deposit with the Accountant on account of fees to become payable to the single joint expert,

            a specified sum in respect of or on account of a single joint expert’s fees and, where the Court so orders, the single joint expert shall not be required to act until the said sum has been paid or, as the case may be, deposited.

        (3) Save where the Court for special reason so permits, each party may offer evidence from one expert only in a particular field of expertise on a particular issue. Such permission shall not be granted unless the Court is satisfied that the evidence of an additional expert is unavoidable in order to do justice between the parties.

        59. (1) A party may put a concise written question or questions concerning the content of an expert's report to—

            (a) an expert instructed by another party; or

            (b) a single joint expert appointed pursuant to agreement of the parties or pursuant to order made in accordance with rule 58(2)(iv).

        (2) An expert shall not be obliged to answer any written questions put in accordance with sub-rule (1) which are disproportionate, unnecessary for the determination of any matter at issue in the proceedings or not within the expert’s field of expertise. If necessary, a party or single joint expert may apply by motion on notice for a ruling on any issue arising from such written questions.

        (3) Written questions under sub-rule (1)—

            (a) may be put once only;

            (b) shall be put within 28 days of service of the expert’s report; and

            (c) shall be for the purpose only of clarification of the report, unless in any case—

              (i) the Court permits otherwise, or

              (ii) the other party who has instructed the expert concerned agrees.

        (4) An expert’s answers to questions put in accordance with sub-rule (1) shall be treated as part of the expert’s report.

        (5) Where—

            (a) a party has put a written question to an expert instructed by another party; and

            (b) the expert does not (in the absence of a ruling that he is not obliged to do so) answer that question,

        the Court may make one or both of the following orders in relation to the party who instructed the expert—

            (i) that the party may not rely on any, or a specified part, of the evidence of that expert; or

            (ii) that the party may not recover any, or a specified part, of the fees and expenses of that expert from any other party.

        60. Where two or more parties intend to call experts who, according to their reports as exchanged between the parties or filed in Court, may contradict each other as to evidence, then:

            (i) following application by any party by motion on notice to the Judge chairing and regulating the pre-trial conference, or of that Judge's own motion, in any case in which such a conference is to be held, or

            (ii) following application by any party by motion on notice to the trial Judge in any case, or

            (iii) where so ordered by the trial Judge, having heard the parties, in the absence of any such motion,

        the Judge concerned may order that the procedure set out in rule 61 be applied where that Judge considers it necessary in the interests of justice.

        61. (1) Where an order has been made under rule 60, the experts shall be required to meet privately, without the presence of any party or any legal representative of any party, and to discuss with each other their proposed evidence.

        (2) Following the meeting referred to in sub-rule (1), the experts shall be required to draw up a written statement (in this rule, the “joint report”) identifying such evidence as is agreed between or among them and such evidence as is not agreed. The joint report shall be lodged in Court to be furnished to the trial Judge in advance of the trial and a copy shall be provided to each of the parties.

        (3) Upon a consideration of the joint report, the trial Judge may, at any appropriate stage of the trial:

            (a) require any opposing experts to be examined and cross-examined (either on the whole or on a specified part of their evidence) one after another, in such order as the trial Judge shall direct, or

            (b) apply the “debate among experts” procedure in accordance with sub-rule (4).

        (4) Where the “debate among experts” procedure is applied, each of two or more contradicting experts shall be sworn in order to testify at the same time. When sworn, each expert, in such order as the trial Judge shall determine, and without being examined by, or by counsel for, any party, shall give an outline of the evidence that is agreed between or among them. The experts shall then, in such order as the trial Judge shall determine, present the evidence on which they are not agreed the one with the other or others. Following such presentation, the experts may, subject to the directions of the trial Judge in that regard, be required to debate the points which are not agreed between or among them, the one with the other or others.

        (5) When the “debate among experts” in accordance with sub-rule (4) is complete, examination in chief by counsel, if deemed necessary by the trial Judge, and cross examination by counsel on such matters as the Judge directs, or if the Judge so directs, general cross examination shall be allowed, as may re-examination.”