On 12 January 2004 Ireland opened its first specialist Commercial Court. This specialised commercial division of the High Court deals with a full range of commercial disputes, generally involving claims exceeding €1,000,000. However, all Intellectual Property matters are eligible for admission to the Court, irrespective of this threshold.
The Court’s impact was immediate. The latest figures show that average time from entry into the Commercial list to conclusion is 21 weeks. Fifty per cent of cases are resolved within 16 weeks. The statistics also show that 65 percent of cases admitted to the Commercial Court settle. The effectiveness of the Commercial Court has changed the face of commercial litigation in Ireland.
The rules governing the Commercial Court are designed to force litigating parties to agree as many issues between them before the matter to trial so that the trial hearing will focus only on relevant issues that remain in dispute.
An application to have an action entered in the Commercial List can be made at any time prior to the close of pleadings. Commercial Proceedings, therefore, can commence as usual in the High Court and may later be transferred to the Commercial List, although the Court favours early entry applications.
Initial Directions Hearing
At the initial hearing the Judge has power to make very wide-ranging directions to facilitate the advancing of the proceedings. Failure to adhere to directions may result in a costs penalty against the offending party. The Court has not been slow to order costs.
Cases admitted to the Commercial Court are subject to case management. This involves a conference or series of conferences of the parties chaired by the Judge assigned to the case to ensure that the proceedings are progressed in a just, expeditious and cost effective manner.
Pre Trial Conference
A pre-trial conference is held before any commercial proceeding can be listed for hearing. At this conference, the Judge establishes what steps remain to be taken to prepare the case for trial, whether any special technological arrangements may be required and the likely length of the hearing. Only when the Judge is satisfied that the proceedings are ready to proceed will he/she will fix a trial date.
The parties must lodge detailed papers with the Judge in advance of every application before the Commercial Court. This ensures not only that the parties are properly prepared for every procedural hearing but also that the Judge can become familiar with the issues beforehand.
Alternative Dispute Resolution
At any time the Judge considers it desirable that the proceedings, or any particular issues within them, be sent for mediation, conciliation or arbitration; he/she may adjourn the proceedings for a limited period of time so that the parties can pursue one or more of such processes.
Apart from the ability of the Judge to make interim costs orders on interlocutory applications, parties have experienced a significant front loading of costs to their own legal representatives because of the amount of pre-trial work inherent in any matter proceeding in the Commercial List.
This however may be no bad thing. It tends to weed out speculative claims and forces parties to focus on the cost of pursuing litigation at an early stage than might have been the case up to now.
The Commercial Court has undoubtedly provided a more satisfactory framework within which to conduct business related litigation. Proceedings are heard by Judges with established commercial backgrounds. The initial directions hearing, case management and the pre trial conference mechanisms have forced parties to reduce and focus on the issues in dispute at an early stage and have led to shorter run-in times to trial and to shorter trials.
The Court is particularly suited to Intellectual Property cases, where the parties need to have swift decisions if a patent, trade mark copyright or design is being infringed. It may often indeed be quicker to have a full trial in the Commercial Court than to seek interlocutory relief in the Chancery High Court.
As it has only relatively recently been established, the Court’s list of cases is relatively small. Its increasing popularity among business and lawyers may impact on that in years to come. However, its success has assured its longevity and the Judge presiding over the lists is determined that the speedy disposal of cases will continue to be the norm.