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Rules of the Superior Courts

Amendment to: Order 39
S.I. No. 391 of 1998: Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements), 1998


1. The following rules shall be inserted as rules 45 to 51 in Order 39 of the Rules of the Superior Courts after rule 44 thereof:
      "VI DISCLOSURE OF REPORTS AND STATEMENTS
Definition
      45. (1) (a) "action" includes any claim for damages in respect of any personal injuries to a person howsoever caused (including a claim for fatal injuries brought pursuant to section 48 of the Civil Liability Act, 1961) but does not include an action to which section 1(3) of the Courts Act, 1988 applies so as to entitle a party to trial by jury in that action.

      (b) "the Act" means the Courts and Court Officers Act, 1995.

      (c) "parties" includes a plaintiff or co-plaintiff, defendant or co-defendant or any third party, counterclaimant or notice party to the action save where the context otherwise requires.

      (d) "personal injuries" includes any disease and any impairment of a person's physical or mental condition.

      (e) "report" means a report or reports or statement from accountants, actuaries, architects, dentists, doctors, engineers, occupational therapists, psychologists, psychiatrists, scientists, or any other expert whatsoever intended to be called to give evidence in relation to an issue in an action and containing the substance of the evidence to be adduced and shall also include any maps, drawings, photographs, graphs, charts, calculations or other like matter referred to in any such report. Any copy report (including a copy report in the form of a letter), copy statement or copy letter however made, recorded or retained from any such expert mentioned above intended to be called to give evidence in relation to an issue or action and containing the substance of the evidence to be adduced, the original of which has been concealed, destroyed, lost, mislaid or is not otherwise readily available, shall also be deemed to be a report for the purposes of this rule.

      (f) "the section" means section 45 of the Courts and Court Officers Act, 1995.

Disclosure of Reports and Statements
      46. (1) The plaintiff in an action shall furnish to the other party or parties or their respective solicitors (as the case may be) a schedule listing all reports from expert witnesses intended to be called within one month of the service of the notice of trial in respect of the action or within such further time as may be agreed by the parties or permitted by the Court.

      Within seven days of receipt of the plaintiff's schedule, the defendant or any other party or parties shall furnish to the plaintiff or any other party or parties a schedule listing all reports from expert witnesses intended to be called. Within seven days of the receipt of the schedule of the defendant or other party or parties, the parties shall exchange copies of the reports listed in the relevant schedule.

      (2) The parties in an action shall exchange with the other party or parties or their respective solicitors (as the case may be) the information and statements referred to in section 45 (1) (a) (iii), (iv) and (v) within one month of the service of the notice of trial or within such further time as may be agreed by the parties or permitted by the Court.

      (3) In any case where a party or his solicitor certifies in writing that no report exists which requires to be exchanged pursuant to subrule 1, any other party shall, on the expiry of the time fixed, agreed or permitted (as the case may be) deliver any report within the meaning of the section to all other parties to the proceedings.

      (4) Any party who, subsequent to the delivery required by subrule (1) above, obtains any report within the meaning of the section or the name and address of any further witness, shall forthwith deliver a copy of any such report or statement or details of the name and address of any such witness (as the case may be) to the other party or parties or their respective solicitors (as the case may be).

      (5) Service of any report, statement or information requiring to be exchanged or delivered may be effected by letter in writing enclosing the report, statement or information required to be delivered by virtue of the section and may be sent by ordinary pre-paid post or in any other manner in which service is authorised by these rules. Such letter shall specifically state that the service is for the purpose of complying with the requirements of section 45 of the Act and these rules. The Court may on application to it by any party to an action or of its own motion require that an affidavit or affidavits be filed by any party in relation to proof of disclosure and service required by these rules in any case in which it appears to the Court necessary so to do.

      (6) Any party who has previously delivered any report or statement or details of a witness may withdraw reliance on such by confirming by letter in writing that he does not now intend to call the author of such report or statement or such witness to give evidence in the action. In such event the same privilege (if any) which existed in relation to such report or statement shall be deemed to have always applied to it notwithstanding any exchange or delivery which may have taken place.

Motion for Directions
      47. When any party alleges that any other party to an action has failed to comply with the requirements of rule 46 or any provision thereof application may be made to the Court by motion on notice seeking the directions of the Court in relation to any such alleged default. Such motion shall be grounded upon the affidavit of the party concerned and on the hearing of such motion the Court may, if satisfied that the party alleged to be in default has failed to comply with all or any of the requirements of the section or these rules, direct compliance with such requirement(s) forthwith or within such period as the Court may fix or may make such other order as the justice of the case may require including an order providing that in default of such compliance the party in default be prohibited from adducing such evidence or that in default of such compliance the claim or defence (as the case may be) be struck out and may make such further order in relation to costs as seems meet.
Non-Compliance with the Rules
      48. If at any stage of the hearing of an action it appears to the Court that there has been non compliance with any provision of the section or these rules, the Court may, having heard any such evidence as may be adduced by the parties in relation to such non-compliance, make such order as it deems fit including an order prohibiting the adducing of evidence in relation to which such non compliance relates or may adjourn the action to permit compliance with the provisions of the section or these rules (as the case may be), and on such terms and conditions as seem appropriate and may make such order as to costs as appears just in the circumstances.
Actions Transferred from the Circuit Court
      49. In relation to any actions transferred from the Circuit Court into the High Court the parties shall within one month of the order adopting the proceedings exchange a schedule of reports and the reports in the manner provided for in rule 46(1) and the provisions of this Part shall apply mutatis mutandis.
Exceptions
      50. (1) In any case application may be made to the Court by motion on notice by any party for an order that in the interests of justice the provisions of rule 46 shall not apply in relation to any particular report or statement (or portion thereof), which is in the possession of such party and which he maintains should not be disclosed and served as required. The Court may, upon such application, make such order as to it seems just.

      (2) In any case in which there has been non compliance by any party with any relevant requirement of the section or these rules, such party, in the absence of the consent of the other party or parties may apply by motion on notice to the Court for an order seeking the leave of the Court permitting the adducing of such evidence as has not been disclosed and the Court may make such order on such application as appears just in the circumstances.

Application of rules 45 to 50
      51. Rules 45 to 50 inclusive shall not apply to proceedings instituted before the 1st day of September, 1997 or to any report or statement coming into existence before that date for the purposes of any proceedings (whether instituted before or after that date)."
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