The Commercial Court
The Commercial Court has proven an effective forum for dispute resolution. This specialised commercial division of the High Court deals with a full range of commercial disputes involving claims exceeding US$1.35million (€1,000,000). There is however, specific provision for the Court to deal with Intellectual Property matters (regardless of value), reflecting Ireland’s drive towards becoming a highly skilled “smart economy”.
The average time from entry into the commercial list and allocation of a trial date is 5 weeks and the average time from entry to judgment is 21 weeks. This is due to the rules governing the Commercial Court, which are designed to encourage litigating parties to agree as many issues as possible between them before the matter comes to trial, so that the hearing will focus only on relevant issues which remain in dispute.
Commercial Proceedings
An application to have a case admitted to the commercial list can be made up to the close of pleadings but in practice unless a party seeks entry into the list at the outset of proceedings, it is unlikely to be admitted due to the pressure and demands on the court.
Initial Directions Hearing
Once a case is entered into the commercial list, it is normal that the judge will immediately make what are termed, initial directions, as to the timing for the exchange of pleadings, exchange of requests for particulars and letters seeking voluntary discovery. Failure to adhere to directions may result in a costs penalty against the offending party, a measure which the Court has not been slow to enforce.
Judge Directed Case Management – Pre Trial Procedure
Cases admitted to the Commercial Court are subject to very close case management. Commercial Court judges have a wide discretion as to the directions that can be made and the sanctions that can be ordered for non-compliance. This power is used in a diverse number of ways, such as requiring parties to redraft pleadings where the Court considers them deficient or to provide the pleadings in a particular form. If a case is particularly complex and involves a number of pre-trial issues then it may have a specific Commercial Court judge assigned to it who will preside over regular Directions Hearings to ensure that the case remains managed despite its complexity.
No Trial by Ambush
Once discovery has been exchanged, the Court will give directions in relation to the exchange of witness statements as to fact or of an expert if the parties are to rely on oral evidence. The witness statement is a précis of evidence which must outline the essential elements of the evidence to be given and it must be dated and signed by the witness. It is not evidence in chief per se, unless the parties otherwise agree. In this way ‘trial by ambush’ is not possible in the Commercial Court as a party will know in advance the case it has to meet, the evidence to be adduced and the witnesses to be called to support the evidence. Thereafter the case proceeds to hearing.
Conclusion
The Commercial Court has undoubtedly provided a modern framework within which to conduct business litigation. Proceedings are heard by judges with established commercial backgrounds. The initial directions hearings, case management and pre-trial conference mechanisms oblige the parties to reduce the issues in dispute from the outset and have led to shorter timeframes for exchange of pleadings and shorter trials.
Contributed by Carol Plunkett
