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Tuesday, 23rd April 2024
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A commercial court will bring savings for businesses Back  
The business community in Ireland has long complained that commercial litigation is frustratingly slow and hugely expensive. So the establishment of a commercial court will result in savings to business, which will arise from the more specialised approach to cases, and also from using modern information technology when involved in proceedings before the Court, Lea Devitt writes.
The 27th Interim Report of the Committee on Court Practice and Procedure dated the 27th February 2002, set out proposals regarding the establishment of a new Commercial list in Ireland. The recommendations made in the Report, were approved by John O’Donoghue, Minister for Justice, Equality and Law Reform, and the Report was subsequently submitted to the Board of the Courts Services and the President of the High Court for their consideration. The Commercial Court has now come into being and commenced operation on the 12th January 2004.

Commercial cases were previously dealt with in a variety of Court lists within the jurisdiction of the High Court. This system could be said to have failed to cope adequately with the volume and complexity of the commercial disputes it faced. A more specialised approach to commercial cases will not only facilitate the Irish business community but the public, the State, major institutions and international corporations. The new Order 63(A) of the Rules of the Superior Courts creates a Commercial list, commonly referred to as the Commercial Court.

How will the commercial court operate?
On the 12th January 2004 the Commercial Court came into operation. Under the direction of Justice Peter Kelly, the Commercial Court will have its own separate list of cases which will be heard by Justice Kelly and Justice Mary Finlay-Geoghegan. The Commercial list will be taken on Friday of each week of term.

An important aspect to the introduction of the Commercial Court is the establishment of a separate office by the Courts Services to manage the administration of the Commercial Court. This should enable cases to proceed more speedily due to new directions, rules or electronic practice and procedures. The High Court Commercial list’s Registrars Office is located at 12-13, Bow Street, Dublin 7 as is the Commercial Court itself. The courtroom will be equipped to facilitate digital audio recording facilities, document and evidence presentation and video conferencing.

The rules for the commercial court
The procedures in the High Court are governed by the Rules of the Superior Courts and the Rules of the Commercial Court (the Rules) have been introduced under Statutory Instrument No. 2 of 2004, which inserts Order 63 A into the Rules of the Superior Courts. The main points of interest provided by the Rules are as follows: -

(a) Jurisdiction: The Commercial Court has jurisdiction to handle disputes between businesses involving claims of at least €1,000,000. The type of proceedings, which the Commercial Court may deal with, are as follows: -
• Contractual disputes
• Disputes involving the sale and purchase of commodities
• Disputes involving the importation and exportation of goods
• Disputes involving the carriage of goods by land, sea, air or pipeline
• Disputes involving the exploitation of oil or gas reserves or any other natural resource
• Disputes involving insurance or re-insurance
• Disputes involving the provision of services ( not including medical, quasi-medical, dental services or services provided under a contract of employment)
• Disputes involving the operation of markets or exchanges in stocks, shares or other financial or investment instruments or commodities
• Disputes involving the construction of any vehicle, vessel or aircraft
• Disputes involving business agency
• Proceedings under the Arbitration Acts 1954 to 1998
• Proceedings under the provisions of the Patents Act 1992
• Proceedings under the Trade Marks Act, 1996, the Copyright and Related Rights Act, 2000 and the Industrial Designs Act, 2001
• Proceedings instituted for relief in respect of passing off
• Judicial review proceedings where the judge of the Commercial list considers the matter appropriate for the Commercial list

It is very important to be aware that in addition to the specific causes of action which are listed in the Rules, there is a provision which allows the Court to deal with any other action (other than personal injuries) where the Court ‘having regard to the commercial and any other aspect thereof considers appropriate for entry in the commercial list’. This rule could therefore be availed of even if the value of the case is less than €1,000,000. Indeed, simply because a case falls into one of the listed classes and has a value of €1,000,000, it does not have an automatic right to be heard in the commercial list, but the consent of the commercial judge must still be obtained.

(b) Entry into the commercial list: A party can apply to enter commercial proceedings into the commercial list by applying by a motion on notice to the other party or parties to the proceedings. This application must be made at any time prior to the close of pleadings in the case of plenary summons or the completion of filing of affidavits in the case of summary proceedings. The notice of motion must have attached to it a certificate of the solicitor for the applicant to the effect that the proceedings are appropriate to be entered in the commercial list.
Practice Direction No. HC 31 of the President of the High Court provides that applications for transfer to the commercial list can only be made in respect of proceedings instituted on or after the 12th January 2004.

(c) Initial directions hearing: An outstanding feature of the Rules is that the Judges dedicated to the commercial court list will be required to meet all parties involved in each case before they come to court in what is known as an initial Directions Hearing.

(d) Case management: Rule 14 sets out the provisions whereby a Judge, in accordance with Rule 6, may order that the proceedings by virtue of their complexity, the number of issues or parties, the volume of evidence, or for other special reasons should be subject to case management.

The Rules provide that a judge can fix a date for a case management conference and can order that all parties to the proceedings should attend the case management conference notwithstanding the fact that a party may not be represented by a solicitor.

(e) Preparation for trial: Unless the proceedings are subject to case management, once the exchange of pleadings, affidavits and statements of issues has been made, either party may apply to the registrar to fix a date for a pre-trial conference in advance of which each party must file a pre-trial questionnaire in the form prescribed by the Rules. The purpose of the pre-trial conference is to allow the Judge to establish what steps remain to be taken to prepare the case for trial and when the Judge is satisfied that the proceedings are ready to proceed to trial a trial date will be fixed.

(f) Evidence: The Rules envisage substantial changes in relation to evidence, the purpose being to ensure greater disclosure of evidence prior to trial. Rule 22 provides that a comprehensive exchange of witness statements will be required prior to the trial date.

(g) Electronic service exchange and lodgement of documents: Subject to a practice direction from the President of the High Court, documents may be served, exchanged or filed with the Registrar electronically. Practice direction HC31 dated the 12th January 2004 provides that ‘a party wishing to prepare and maintain a case booklet in electronic form should inform the Judge having charge of the High Court Commercial list of this on the hearing of the Application for an Order transferring the proceedings to the High Court Commercial list’.

(h) Costs
The Judge may award costs of any interlocutory application when the application is heard. This is different to the usual practice of reserving such costs until the trial of the action.

The business community in Ireland have long complained that commercial litigation is frustratingly slow and hugely expensive. The establishment of a Commercial Court will result in savings to business which will arise from the more specialised approach to cases and also from using modern information technology when involved in proceedings before the Court.

By virtue of the detailed booklets and agreed witness statements, the Judge will have ready the papers before the trial which will eliminate the need for lengthy examination-in-chief of witnesses and the reading out of lengthy Affidavits. This will, of course, save considerable time.

While it could be said that the Rules envisage a certain amount of front-loading of work and expense, trials will be shorter or will become unnecessary where cases can be settled or resolved through Alternative Dispute Resolution. It is also envisaged that the setting of trial dates will be done so as to ensure that there will be a Judge available to hear the case.

The establishment of the Commercial Court will become an important part of the legal infrastructure in Ireland. Indeed, Ireland may become an attractive neutral venue for organisations who have no connections in Ireland and who require an efficient resolution of commercial disputes by a Court that accommodates modern business commercial needs.

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