Comment: After only six months, Ireland's new commercial division of the High Court has acquired a reputation for efficiency that has impressed both clients and lawyers. The majority of cases in the court's list have been concluded in the short time since the court commenced operations in January
While the success of the court will make it very busy, and thus slow down the turnover of cases, it is clear that the new court means business. Unjustified delay will not be tolerated and parties will not be allowed to let their cases drift. The court may also result in lower legal costs in some cases. However, the main benefits will be that clients will get a better assessment earlier of whether they may win or lose, and cases will settle or go to trial earlier.
The court deals with commercial cases where usually the amount at stake is greater than 1 million. The issues are often complicated. A small number of judges, including Mr Justice Peter Kelly, hear cases at present and the court has a specially designed court room with advanced technology features to assist in the presentation of evidence on screen.
The court's rules are designed to reduce delay and to identify the key issues of dispute in each case. The judge assigned to a case "case manages" the case. This means that the judge sets deadlines for procedural steps, enforces time limits and may impose costs penalties for unjustified breaches. The judge may chair a meeting of the parties' lawyers in a case to identify the core issues in the dispute and to move the case speedily to trial, mediation or settlement.
A remarkable example of the court's procedures occurred recently in an urgent case. The case took two weeks from beginning to end. The court made it clear in the case that it expected all documents to be lodged in court before any hearings started so that the judge could read these in advance to save time. Judgment was given within three days of trial. Most cases will require much longer preparation and trial time than this example, but the case illustrates the manner in which the court may direct litigation.
Distinctive features of the court's rules include the compulsory exchange of written evidence before trial. The court may also direct that parties' experts, such as accountants, meet in conference to discuss the case. The objective is to avoid "trial by ambush" and to encourage parties to identify the issues that truly divide them. This approach should lead to earlier settlements of cases, as parties will be able to assess their strengths and weaknesses weeks or months before trial.
The court's rules also permit "time out" to facilitate mediation or other alternative dispute resolution where it may resolve a case. In mediation, a neutral individual helps disputing parties to try to settle the case. If successful, mediation avoids much of the expense, delay and stress associated with conventional litigation.
However, some small businesses may struggle to comply with the court's procedures if they can't commit adequate resources - manpower and lawyers' time - to dealing with a case. The pace in the court is so intense that lawyers may have to devote exclusive attention to a case for weeks so that deadlines can be met. But this problem may be addressed to some extent if the court takes into account genuine difficulties when setting deadlines. Also, given the sums at stake, usually it will make sense for a client, small or otherwise, to use every effort to commit adequate resources to a case.
An additional benefit of the commercial court is that it may mean more international dispute work for Irish lawyers. International businesses can often choose where the litigant disputes. In the past, some parties launched commercial proceedings in Ireland for tactical reasons because they were content for cases to move slowly. That option won't exist in the commercial court.
By the same measure, the speed of this court may attract commercial litigants who previously considered the pace of Irish litigation to be somewhat leisurely. The London commercial court attracts international commercial disputes that have no connection with London. If the commercial court in Dublin continues on its successful track, this may happen here.
The court is one of a number of important changes in the courts that may make 2004 a milestone year in Irish civil litigation.
A competition division in the High Court with its own rules similar to those of the commercial court will deal with alleged cartel and other anti-competitive abuses. Minister McDowell's Civil Liability and Courts Bill proposes to introduce case management in those personal injury cases that are not dealt with by PIAB.
New court rules make it easier to force tardy litigants to serve statements of claim or defences without further delay. Also, on the technology front, the electronic filing in court of pleadings and other documents is likely to occur sooner rather than later.
These changes may not lead to a noticeable reduction in legal costs in many complex cases, as these cases by their nature demand much lawyer and expert time. The main benefits for business, however, will be the earlier and more predictable resolution of disputes.
Roddy Bourke is a litigation partner in McCann FitzGerald solicitors, Dublin. He was chairman of the Law Society litigation committee from 2001 to 2003.
