I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK
The Constitution of Ireland, enacted in 1937, is the basic law of the state. It provides the framework for the separation of powers between the legislature, executive and judiciary; the courts structure; and the fundamental rights of Irish citizens that are enforceable through those courts in addition to those prescribed by the legislature. Under Article 29 of the Constitution, EU law applies and shall not be invalidated by any provision of the Constitution.
Ireland is a common law jurisdiction and the Irish courts are bound by the doctrine of precedent, which means that all courts must follow prior decisions of superior courts and courts of equal jurisdiction.
Civil claims up to €15,000 are dealt with in the District Court; claims up to €75,000 are dealt with in the Circuit Court (€60,000 for personal injury actions); and the High Court has an unlimited monetary jurisdiction.
The Court of Appeal, which was established in October 2014, has the jurisdiction that was previously vested in the Supreme Court and is the default court for all appeals from decisions of the High Court and its decision will, except in certain limited circumstances, be final. Only in exceptional circumstances, and subject to the Supreme Court's own 'leave to appeal' requirements, is it possible to bypass the Court of Appeal and to bring a 'leapfrog appeal' directly to the Supreme Court. The Supreme Court continues to exercise the function of an appellate court, where an issue of general public importance arises or where, in the interests of justice, it is necessary to hear an appeal.
The Commercial Court is a division of the High Court dealing with commercial disputes with a value of over €1 million. Intellectual property disputes and appeals (or judicial reviews) of a regulatory decision may be entered into the Commercial Court list regardless of the value of the case. Application for admission is made by way of motion to the Commercial Court, grounded on the applicant's affidavit and a certificate from the applicant's solicitor. There is no automatic right for any case to be admitted to the Commercial Court list.
Statutory tribunals are also in place to deal with specialist disputes and there are various alternative dispute resolution (ADR) mechanisms available, including arbitration, mediation, conciliation, expert determination and adjudication, for resolving disputes either without recourse to the courts or within the context of existing proceedings.
II THE YEAR IN REVIEW
i Legal Services Regulation Act 2015
On 7 October 2019, the Minister for Justice and Equality commenced2 a number of landmark reform provisions under the Legal Services Regulation Act 2015 (the 2015 Act) in relation to legal costs and services, including the following:
- Various functions and powers of the Legal Services Regulatory Authority (LSRA) in relation to complaints and disciplinary matters (Part 2).
- Inspections by the LSRA of legal practitioners (Part 3).
- Protection of clients, including the requirement to have professional indemnity insurance (Part 5).
- Establishment of the Review Committee, the Complaints Committee and the Legal Practitioners Disciplinary Tribunal (Part 6).
- Direct professional access to barristers on non-contentious matters and introduction of Limited Liability Partnerships (Part 8).
- Introduction of the Office of the Legal Costs Adjudicators (which replaces the Office of the Taxing Master) and the maintenance by the new adjudicators of a public register of legal costs determinations (Part 10).
Section 58 of the 2015 Act provides that complaints in relation to legal services and fees must be brought within three years. Time runs from the date when the legal services were provided or the bill was issued; or the date when the client first became aware or should reasonably have become aware that 'it would be reasonable to consider' that the services were inadequate or the amount sought in the bill was excessive.
Sections 149 to 161 of the 2015 Act set out the obligations on solicitors and barristers to keep clients informed about the legal costs to be incurred. The requirements under Section 68 of the Solicitors (Amendment) Act 1994 have been replaced with those of Section 150 of the 2015 Act with the result that a solicitor must now provide a notice which discloses the costs that will be incurred, or, if this is not reasonably practicable, the basis on which such costs are to be calculated.
ii Supreme Court decision on discovery
In Tobin v. Minister for Defence & Ors  IESC 57, the Supreme Court delivered an important judgment in relation to discovery. The Supreme Court decided to hear the case on the basis that it considered 'an issue of general public importance has been identified which concerns the proper overall approach to discovery in modern conditions and in circumstances where the burden of complying with discovery is likely, on the facts of the case in question, to be significant'.3
The plaintiff was employed as an aircraft mechanic in the Air Corps. He alleged that he was exposed to dangerous chemicals and solvents during the course of his employment.
In the High Court, the plaintiff filed a motion seeking extensive discovery from the defendant of 15 separate categories of documents, a number of which were agreed before the hearing of the motion. The defendant contested the discovery request on the basis that it was estimated that it would take 10 members of staff approximately 220 hours to locate, review and categorise the documents. The defendant contended that the plaintiff should issue interrogatories (questions) requesting the defendant to confirm whether the chemicals identified in the pleadings were used by the Air Corps during the specific periods of time identified by the plaintiff. The High Court granted the plaintiff's motion, ruling that the categories of discovery were relevant and necessary to the fair disposal of the matters in dispute. The High Court also held that the use of interrogatories would be inappropriate in circumstances where the defendant had denied the allegation that the plaintiff had been exposed to dangerous chemicals and put the plaintiff on full proof of this allegation.
On appeal, the Court of Appeal held that where the discovery sought is likely to be extensive, discovery should not be ordered unless all alternative avenues have been exhausted and shown to be inadequate. The Court of Appeal allowed the appeal in respect of a number of categories of documents on the grounds that the application for discovery was premature and that the plaintiff should, in the first instance, seek the information by means of interrogatories or a notice to admit facts. The Court of Appeal stated that if the interrogatories did not provide what was really necessary or essential to the prosecution of the plaintiff's case, the application for discovery might be renewed afresh to the High Court.
The plaintiff appealed the decision of the Court of Appeal to the Supreme Court. While the Supreme Court acknowledged two further considerations when a court is considering an application for discovery, namely 'proportionality' and first pursuing 'alternative, more efficient methods of disclosure', it noted that the key criteria were relevance and necessity. However, it stated that if it could be shown that discovery would be particularly burdensome, a court would have to consider a range of factors in deciding whether discovery was truly 'necessary'. These factors included:
- the extent of the burden which compliance is likely to place on the party making the discovery;
- the extent to which it might reasonably be expected that the documentation concerned would play a reasonably important role in the proper resolution of the proceedings; and
- the extent to which there may be other means of achieving the same end at a much reduced cost.
The Supreme Court stated that a requesting party did not have to establish that they had exhausted all other procedures available to establish relevant facts before discovery could be sought.
The Supreme Court upheld the appeal. The Supreme Court noted that if the defendant had available the answers to the proposed interrogatories, it was difficult to understand why appropriate admissions could not previously have been made. The Supreme Court also held that it is appropriate for a court to take into account the manner in which a case is pleaded, not only for determining relevance, but also to assess the extent to which a party who objects to making discovery, on the grounds that it is excessively burdensome, has contributed to that situation by the manner in which they have pleaded their case.
iii Personal injury claim changes
Amendments to the Civil Liability and Courts Act 2004 by Section 13 of the Central Bank (National Claims Information Database) Act 2018 shortened the time for issuing a letter of claim and imposed heightened obligations on the courts as regards drawing inferences and fixing parties with costs:
- Section 8 – a plaintiff in a personal injuries claim must serve a letter of claim, which states the nature of the alleged wrong, on the alleged wrongdoer within one month of the cause of action. In the absence of this, the court is now required to draw such inferences as appear proper and where the interests of justice so require, penalise the plaintiff on costs.
- Section 14 – where a party fails to lodge the verifying affidavit in court within 21 days of service of the pleading or such later agreed period, the court is now required to draw such inferences as appear proper and where the interests of justice so require, penalise that party on costs.
The Personal Injuries Assessment Board (Amendment) Act 2019 (the 2019 Act) came into force on 3 April 2019 and introduced a number of new measures, including penalising a party on costs where a Personal Injuries Assessment Board (PIAB) assessor's requests in respect of any of the following matters have not been complied with:
- the provision of additional information or documents by a party;
- the provision of assistance to retained experts or furnishing information or documents or cooperating with those experts; or
- the submission by the claimant to a medical examination.
Some notable amendments of the Personal Injuries Assessment Board Act 2003 by the 2019 Act include the following:
- Section 50 of the 2003 Act (as amended) provides that where a further respondent or respondents are added to an application which is already with the PIAB, the statutory limitation period for the claim against that respondent(s) stops for the purposes of Section 50 on the date of such addition as opposed to the date of the original application. This addresses the anomaly identified in the case of Renehan v. T & S Taverns  IESC 8 where Section 50 applied to all respondents such that the date of the initial application had the effect of stopping the time for all respondents, regardless of when they were joined to the application.
- Section 54 of the 2003 Act (as amended) provides that the PIAB shall review and update the Book of Quantum at least every three years.
- Section 79 of the 2003 Act (as amended) provides that the PIAB can serve or issue documents electronically or by document exchange service, where consent to such service or issue has been given.
iv Hague Judgments Convention 2019
On 2 July 2019, the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the 2019 Convention) was adopted. The 2019 Convention will enter into force 12 months after the ratification, acceptance, approval or accession of two states. Uruguay has signed the 2019 Convention and the European Commission indicated that it was starting the process for EU accession to the Convention.
The 2019 Convention aims to facilitate the cross-border recognition and enforcement of judgments made by courts from contracting states.
The 2019 Convention complements the 2005 Hague Convention on Choice of Court Agreements (in force in Mexico, Singapore, Montenegro, and the 28 EU Member States (including the UK)) and is wider in scope, including reaching beyond judgments based on an exclusive jurisdiction clause. The 2019 Convention only applies to decisions on the merits, including judicial settlements and determinations of costs. Interim measures of protection are not covered by the 2019 Convention.
Recognition and enforcement of an eligible judgment may only be refused on certain specified grounds, including:
- the defendant was not properly notified, unless the defendant participated in the proceedings without contesting notification;
- the defendant was notified in the requested state in a manner that is incompatible with fundamental principles of service of documents in that state;
- the judgment was obtained by fraud;
- the judgment is manifestly incompatible with public policy;
- the proceedings in the court of origin were contrary to a choice of court agreement;
- the judgment is inconsistent with other judgments between the same parties; or
- the judgment awards damages that go beyond compensating a party for actual loss or harm suffered, for example through the award of exemplary or punitive damages. The requested court must, however, take into account whether such damages serve to cover costs and expenses relating to the proceedings.
The 2019 Convention will only apply where it was in effect in the state of origin and the requested state at the date of the institution of those proceedings (Article 16).
III PROCEDURE AND PRACTICE
i Overview of limitation periods
The commencement of civil proceedings in the District Court, Circuit Court and High Court is usually preceded by issuing a warning letter to the defendant, setting out the basis of the plaintiff's claim and requiring an admission of liability.
The time limits within which an action can be brought pursuant to the Statute of Limitations 1957 (as amended) are as follows:
- Actions under contract and tort, and claims for rent arrears: six years from the date on which a cause of action accrues.
- Actions upon an instrument under seal, and for the recovery of land: 12 years from the date on which the right of action accrues.
- Actions for personal injuries under negligence, nuisance or breach of duty: two years from the date on which a cause of action accrues or the date the plaintiff first had knowledge, if later.
- Actions for personal injuries under assault and battery: six years from the date on which a cause of action accrues or the date the plaintiff first had knowledge, if later.
- Actions for defamation: one year from the date of publication of the defamatory statement or two years from that date if the court so directs.
ii Procedures and time frames
The procedures and time frames vary across the courts. The general summary below relates to plenary proceedings in the High Court:
- Actions are initiated by way of plenary summons, which broadly sets out the plaintiff's claim and the relief being sought. Under the rules introduced in November 2017, a plenary summons may be served on a person by registered post instead of by personal service.
- The defendant then enters an appearance to signal a willingness to defend the claim. This also serves to cure any defects in respect of service. Extended time is given to defendants outside the jurisdiction to enter an appearance. A defendant who wishes to challenge the jurisdiction of the Irish courts to hear and determine the claim files a conditional appearance.
- The plaintiff then delivers a statement of claim setting out the nature of the claim.
- A notice for particulars is usually raised on this statement of claim seeking more detailed information – by way of replies – on the claim.
- The defendant delivers a defence. At this juncture, any application to bring in a third party will usually be made. The plaintiff may deliver a reply to the defence.
- The parties will then commence the discovery process, discussed further below.
- In the event that a party has defaulted in delivering a pleading or adequately dealing with a discovery request, a motion can be brought compelling its delivery or a response, which will have costs consequences for the party in default.
- Once discovery has been completed then either party is at liberty to serve the notice of trial.
A typical non-jury case may take at least 12 months to obtain a hearing date.
Cases are usually heard by one judge and without a jury, except for defamation and civil assault claims.
The High Court has increasingly assumed an active case management role,4 which will vary the above time frame. This has been influenced by the success of the Commercial Court, whose main objective is to hear complex commercial disputes as efficiently as possible, pursuant to Order 63A of the Rules of the Superior Courts (RSC). Parties must comply strictly with the time frames set down by the Commercial Court for the exchange of pleadings, witness statements, case summaries, submissions and agreed booklets of documents. Significant cost penalties are imposed on any party that does not comply with the prescribed time frames. On average it is taking 12 months from entry into the Commercial Court list to judgment. Therefore, depending on the urgency of the case and the number of issues to be dealt with, it is possible to have cases resolved very quickly.
Injunctive relief is available from the High Court and parties may seek prohibitory or mandatory injunctions. The most common injunctive reliefs are quia timet (to prevent imminent irreparable harm occurring), Mareva injunctions (freezing orders) and Anton Piller orders (search of the other party's premises and the removal of certain identified material).
An application for interim injunctive relief is made on an ex parte basis, and can be brought on an emergency basis. If the interim order is granted, it will generally be for a limited number of days until the interlocutory hearing when the plaintiff will seek a continuation of the order. The defendant must be on notice of this interlocutory hearing.5
iii Class actions
Recourse to class actions is restricted in Irish law. The courts are wary of allowing plaintiffs to represent large bodies of persons who have not consented to such representation lest their constitutional right of access to the courts be frustrated. There are currently two mechanisms available for multi-plaintiff litigation: representative actions and test cases.
Representative actions are permitted by the RSC. Order 15, Rule 9 of the RSC provides that where numerous persons have the same interest in a cause or matter, one or more of those persons may sue or be sued on behalf of or for the benefit of all interested parties. The representative plaintiff must be duly authorised to sue on behalf of each individual party, and evidence of same must be presented to the court before a representative order will be made. Any decision of the court will, in the absence of fraud or other special circumstance, bind all interested parties to the action. Similar provisions are to be found in the Circuit Court Rules.6 Such actions are a rarity in Irish law.
Test cases may also be brought whereby a small number of cases are selected from a group of cases that arise from the same circumstances. While the results of these cases are not binding on the parties in the other cases unless there is an agreement in place, test cases have a persuasive value under the doctrine of precedent.
The Multi-Party Actions Bill 2017 (the 2017 Bill) reflects a Law Reform Commission paper from 2005, which recommended the facilitation of multiparty litigation. The 2017 Bill provides for class actions to allow multiple plaintiffs to bring one claim arising from common or related issues of fact or law. If a judge decides that proceedings are to be certified as a multiparty action, they will make an order establishing a register that other relevant parties can apply to join. The costs of a multiparty action will be divided equally among the members of the register who are jointly and severally liable. The government has requested the Working Group on Review of the Administration of Civil Justice to examine the Bill.
Separately, the Data Protection Act 2018 provides for a limited form of representative action whereby a 'data protection action' may be brought on behalf of a data subject by a not-for-profit body, organisation or association.
iv Representation in proceedings
Parties (including natural and legal persons) are usually represented by solicitors and barristers (senior or junior counsel). A company must be legally represented and cannot be represented in court by its officers or servants.7 In the Circuit Court the parties will generally only be represented by a solicitor and one junior counsel, whereas in the High Court the parties will also have at least one senior counsel. Alternatively, lay litigants have full rights of audience. In exceptional circumstances, the courts have allowed a lay litigant to be represented by an unqualified advocate but have limited the scope of assistance that can be provided (Re: Applications for Orders in Relation to Costs in Intended Proceedings: Coffey & Ors  IESC 11).
v Service out of the jurisdiction
A party seeking to serve Irish proceedings in another EU Member State does not require leave from the Irish court. However, the service of Irish proceedings in a non-EU Member State requires leave from the Irish court and certain criteria must be satisfied.
Regulation (EC) No. 1393/2007 and the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention) provide that service will be effected in accordance with the law of the destination country. Where the destination country is not governed either by Regulation (EC) No. 1393/2007 or the Hague Convention, service is in accordance with Irish procedural rules.
Where the person to be served is not an Irish citizen or the company is not domiciled in Ireland, a notice of summons and not a summons itself should be served.
vi Enforcement of foreign judgments
Enforcement and recognition of foreign judgments between Member States is governed by Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Brussels I Regulation) and Regulation (EU) No. 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (recast) (the Recast Regulation). The Recast Regulation applies to judgments given in proceedings commenced on or after 10 January 2015.8 The Brussels I Regulation continues to apply to judgments given in proceedings instituted before 10 January 2015.9 The Brussels Convention (which the Brussels I Regulation and the Recast Regulation supersede) still applies to territories in Member States that are excluded from the Brussels I Regulation and the Recast Regulation. The Brussels II Regulation10 (see below) applies in respect of Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility (except in Denmark). The Lugano Convention 2007 continues to apply as between Member States and members of the European Free Trade Association.
A parallel method of enforcement of Member State judgments and orders is provided by Regulation (EC) No. 805/2004, which creates a European enforcement order for uncontested claims. This allows a party to have a judgment certified as a European enforcement order in a Member State that is automatically recognised and enforced in another Member State without the need for the judgment creditor to take any intermediate steps. Regulation (EC) No. 861/2007 is relevant to cross-border civil or commercial claims that do not exceed €5,000. Regulation (EC) No. 1896/2006 established the European Order for Payment, which provides for simplified procedures in connection with recovering uncontested (unlimited) money debts.
The procedures for enforcing a Member State judgment in Ireland are set out in Order 42A of the RSC. To enforce a judgment from a non-EU or EFTA country for a liquidated sum, new proceedings for the recovery of a simple contract debt must be commenced in Ireland by way of summary summons pursuant to the Irish common law rules of enforcement. There are a number of prerequisites to be met under Irish common law for enforcement of a non-EU or EFTA judgment: the judgment must be (1) for a definite sum, (2) final and conclusive and (3) given by a court of competent jurisdiction. The Irish court may decline jurisdiction if the plaintiff cannot show that there is a solid practical benefit to enforcement in Ireland (Albaniabeg Ambient Shpk v. Enel SpA and Enelpower SpA  IECA 46).
vii Assistance to foreign courts
The European Communities (Evidence in Civil or Commercial Matters) Regulations 2013 facilitate the taking of evidence in one Member State at the request of another Member State court. This request must be in the official language of the place where the evidence is to be taken. The requested court must acknowledge the request and execute it within 90 days.
On 1 September 2008, the 2000 EU Convention on Mutual Assistance in Criminal Matters was implemented into Irish law by the enactment of the Criminal Justice (Mutual Assistance) Act 2008 (the 2008 Act). Parts 4 to 6 of the 2008 Act set out provisions in relation to the mutual recognition and enforcement of freezing orders and the taking of evidence and service of proceedings in criminal matters.
The Foreign Tribunals Evidence Act 1856 governs the taking of evidence in Ireland for use by a tribunal or court in a non-EU Member State.
viii Access to court files
The Courts Service website11 records details of parties in dispute and the stage of the pleadings. Copy pleadings are not made available. There is no such search mechanism for the lower courts.
In terms of completed proceedings, written judgments made available by the Supreme Court, Court of Appeal, High Court, Circuit Court, District Court, Central Criminal Court, Court of Criminal Appeal and Courts-Martial Appeal Court are available on the Courts Service website.
The decision of the High Court in Allied Irish Bank plc v. Tracey (No. 2)12 addressed the issue of a non-party's entitlement to court documents. Mr Justice Hogan held that a non-party was entitled to have access to the affidavits filed by a party that were opened in open court without restriction. This High Court decision only extends to documents opened in open court without restriction and does not apply to documents filed but not opened in court.13
Order 123 of the Rules of the Superior Courts (Recording of Proceedings) provides for the procedure regulating applications for access to a record of court proceedings (i.e., a transcript). Rule 9 states that any party or person who seeks access to a record of proceedings may apply to the court by motion on notice to the other party or the parties to those proceedings, grounded on affidavit. The court may, where it considers it necessary in the interests of justice so to do, permit the applicant to have such access to all or such part of the relevant record.
Members of the public may attend all court hearings, except in in camera proceedings,14 which generally relate to family law matters, those involving minors or certain proceedings brought under data protection legislation.
New court rules that were introduced on 1 August 2018 give bona fide members of the media a specific right to access documents referred to in open court. Bona fide members of the media may request that information contained in a court record be disclosed to them. They may (1) inspect the document under the supervision of an officer of the court or Courts Service personnel; (2) take a copy of the document forming part of the court record on the undertaking that they will return the copy on completion of the media report; or (3) be given a press release or other information in oral or written form by an officer of the court or by the Courts Service personnel concerning the proceedings.
ix Litigation funding
The decision of the Supreme Court in Persona Digital Telephony Ltd v. Minister for Public Enterprise, Ireland and the Attorney General  IESC 27 confirmed that maintenance and champerty were still prohibited under Irish law. Maintenance is where an individual, without a legitimate interest, funds the litigation of another. Champerty is a subset of maintenance and arises where an individual provides maintenance in return for a share of the proceeds.
The only form of third-party funding that is acceptable in Ireland is that provided by a third party that has a legitimate interest in the outcome of the litigation. The High Court in Thema International Fund plc v. HSBC Institutional Trust Services (Ireland) Limited & Ors,15 (referring to its decision in Moorview Developments Limited v. First Active plc)16 implied that bona fide creditors and shareholders may fund legal actions on the basis that then they are funding a company in which they have a legitimate interest in the hope that the company will be able to pay them the monies due (creditors) or dividends or capital distributions (shareholders).
Where a third-party funder has funded litigation on behalf of an impecunious party, the Irish courts have jurisdiction to make an order for costs against that third party.17
The Irish courts have determined that after-the-event insurance does not breach the rules on maintenance and champerty in certain circumstances.
The Supreme Court in SPV Osus Limited v. HSBC Institutional Trust Services (Ireland) Limited & Ors  IESC 44 found that the assignment of a right to litigate to an unconnected third party with no legitimate interest in the litigation was trafficking in litigation and was contrary to Irish public policy. The Supreme Court applied the test adopted by the House of Lords in Trendtex Trading Corporation v. Credit Suisse  AC 679 that an assignment of the right to litigate is unenforceable unless the assignee had a genuine commercial interest in the assignment.
In terms of payment of costs, although the courts have discretion as to how costs are to be awarded following the hearing, the general rule is that costs follow the event, namely that the unsuccessful party will pay the costs of the successful party. Costs are usually awarded on a party and party basis, which means that costs reasonably incurred by the successful party in prosecuting or defending an action are recoverable.
Where a defendant has reason to believe that the plaintiff will be unable to pay its costs if the plaintiff loses the case, the defendant may seek an order for security for costs. This is a court order requiring the plaintiff to provide security (for example, cash lodged in court or a bond) to meet the legal costs that the defendant is likely to incur in defending the case.18
IV DOCUMENTS AND THE PROTECTION OF PRIVILEGE
Privilege in Ireland is governed by the common law. The main recognised categories of privilege are as follows.
Legal professional privilege
This head extends to include two distinct categories of communication between a lawyer and a client: legal advice privilege and litigation privilege. The term 'lawyer' includes solicitors, barristers, foreign lawyers and in-house counsel (although the position of in-house counsel is affected by the decision in the Akzo Nobel case referred to below).
Legal advice privilege
Confidential communications (which have a broad interpretation and include draft notes and electronic documents) between a lawyer and a client for the sole purpose of giving or seeking legal advice are subject to legal advice privilege, provided the communications took place in the course of a professional legal relationship. Legal assistance, on the other hand, does not benefit from privilege.19
In Ochre Ridge Limited v. Cork Bonded Warehouses Limited & Anor,20 the High Court ruled that legal advice privilege does not extend to advice of a legal nature provided on business matters. The decision of the Court of Justice of the EU in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission21 makes it clear that, in relation to European Commission competition investigations, communications between in-house lawyers and their internal clients are not entitled, in certain circumstances, to the same protection or privilege as communications between a company and its external lawyers.
Confidential communications made in contemplation of litigation or after litigation has commenced between a lawyer and a client or third party for the sole purpose of the litigation fall into this category of privilege.22
In this regard, all communications between a party and his or her legal advisers or with third parties (such as potential witnesses or experts) or internally, which are created predominantly for the purposes of or in contemplation of litigation, are privileged. This type of privilege also attaches to the work product of the parties' legal advisers such as draft pleadings for the case, notes or memoranda.
Without prejudice privilege
In Ryan v. Connolly23 the Supreme Court adopted the following statement of the law relating to without prejudice privilege from Halsbury's Laws of England: 'Letters written or oral communications made during a dispute between the parties, which are written or made for the purpose of settling the dispute and which are expressed or otherwise proved to have been made “without prejudice” cannot generally be admitted in evidence.'
This protection can only be waived with the agreement of both parties.
Privilege in mediation
Confidentiality and privilege are particularly vital for the proper functioning of an ADR regime.
The Mediation Act 2017 (the Mediation Act) defines mediation as 'a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute'. Section 7 provides that the 'agreement to mediate' shall note that the mediation is to be conducted in a confidential manner. Section 10 contains the specific confidentiality provisions.
The European Communities (Mediation) Regulations 2011 provide that any person involved in a mediation that is governed by these Regulations shall not be compelled to give evidence in civil or commercial proceedings relating to a matter arising out of, or connected with, mediation. Such parties may be compelled to give evidence in situations where non-disclosure of the information would be contrary to public policy. Most communications made in the course of mediations will of course attract without prejudice privilege as well as this added statutory protection.
Common interest privilege
This privilege exists where another party along with the lawyer's client has a common interest in the subject matter of the privileged communication. The existence of this privilege was recognised by the High Court in Moorview Developments Limited & Ors v. First Active plc & Ors.24 The effect of common interest privilege is that the documents will remain privileged, notwithstanding their release to a third party.
In the case of Redfern Limited v. O'Mahony,25 the Supreme Court confirmed that legal privilege will not be lost where there is limited disclosure for a particular purpose or to parties with a common interest. Further, the Supreme Court confirmed that there is no general principle whereby legal professional privilege in documents is waived by putting in issue allegations to which the privileged documents are relevant.
Privilege against self-incrimination
In Re Haughey26 the Supreme Court described the privilege against self-incrimination in the following terms: '[I]t is the duty of the judge to warn a witness that he is privileged to refuse to answer any question if the answer would tend to incriminate him.'
ii Production of documents
Discovery is the process by which one party to civil proceedings obtains the disclosure of documents from another party or from a non-party in advance of a trial. Discovery in High Court actions is governed by the RSC and the obligations are more onerous than those in the Circuit Court and District Court. In High Court actions, however, there is a requirement that parties seeking discovery must specify precise categories of documents that they require and provide reasons why they are relevant and necessary. The High Court in Walsh v. The Health Services Executive & Ors  IEHC 394 set out a checklist of questions to be deployed by a court in determining discovery applications.27
The meaning of what constitutes a 'discoverable' document was supplemented by the Rules of the Superior Courts (Discovery) 2009 (the 2009 Discovery Rules) to include documents 'necessary for disposing fairly of the cause or matter or for saving costs'. A party is obliged only to discover those documents relevant to the categories agreed or the court order that it has or has had in its 'possession, power or procurement'.28 The party applying to the court for discovery must show on affidavit that the discovery sought is relevant and necessary to dispose fairly of the matter or to save costs.
The RSC do not prescribe a definition of 'document'; however, the term has been broadly defined in case law as meaning anything containing information. This includes any document in writing, handwritten notes, maps, drawings, photographs, discs, computerised or electronically stored information.
Relevance of the documents is determined with regard to the pleadings. The courts have expressly reserved the right to decide whether documents are relevant and, if appropriate, the courts will examine the documents to ascertain their relevance. Necessity is also decided by the courts on the specific facts of each case.29 The High Court, in the cases of Flogas Ireland Limited v. Tru Gas and Flogas Ireland Limited v. Langan Fuels Limited,30 observed that 'the courts should exercise special care to ensure that a party is not given free access to [confidential information] without having satisfied the court that there is some basis on which the documentation is likely to be relevant and necessary'. Even so, depending on the documentation involved, the court may decide that the balancing of rights demands an order against discovery.
Pursuant to the 2009 Discovery Rules, a party may seek electronic data from its opponent and a court may order a party to give inspection and search facilities for electronic data on its computer systems. The fact that a document is situated outside the jurisdiction does not preclude it from being discoverable.
It is possible to seek discovery against a non-party. A party seeking such an order should indemnify such person and pay their costs.
V ALTERNATIVES TO LITIGATION
i Overview of alternatives to litigation
Reference to arbitration is commonplace in commercial contracts. However, as arbitration becomes increasingly formalised and thus more akin to traditional adversarial proceedings, there is an increasing trend towards consent-based non-binding forms of ADR such as mediation and expert determination as more flexible and cost-efficient ADR mechanisms.
The Arbitration Act 2010 (the 2010 Act) came into operation on 8 June 2010, repealing all previous arbitration legislation in Ireland. The 2010 Act incorporates the UNCITRAL Model Law (the Model Law) and applies to all domestic and international arbitration commenced after 8 June 2010.
The 2010 Act led to a number of significant changes to the previous regime. In strengthening the integrity of the arbitration process, the 2010 Act abolished the 'case stated' procedure, whereby the arbitrator could refer a question of law to the High Court. In addition, the jurisdiction of the arbitrator was increased as they are given the power to review challenges to their appointment and can determine their own jurisdiction. The provisions of the 2010 Act go further to increase Ireland's attractiveness as a potential destination for commercial arbitration by requiring the arbitrator to give reasons for his or her award, unless the parties have agreed otherwise and also by allowing the parties to agree allocation of costs, whether before or after the dispute has arisen. The 2010 Act also restricts the grounds for setting aside an award to those grounds specified under Article 34 of the Model Law:
- a party to the agreement is under some incapacity or the agreement is invalid;
- improper notice was given regarding the arbitrator's appointment or arbitral proceedings;
- the award deals with matters outside the scope of the submission to the arbitrator;
- the tribunal or procedure was improperly constituted;
- the subject matter of the dispute is not capable of settlement by arbitration under the law of the state; or
- the award is in conflict with the public policy of the state.
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) applies in Ireland and an award made in the territory of the state that is party to the New York Convention shall be enforceable in the same manner in Ireland as the award of an arbitrator made in a domestic arbitration.
The New York Convention has been overtaken in Ireland by the incorporation of the Model Law into Irish law on foot of the Arbitration (International Commercial) Act 1998. A party may seek to have an arbitral award recognised and enforced regardless of whether it has been made in a signatory or non-signatory country, subject to that country having adopted the Model Law.
To enforce an award, application may be made to the High Court by way of originating notice of motion grounded on affidavit exhibiting the original arbitration agreement and the award (together with a translation of same).
Enforcement will only be refused on limited grounds such as where it would be contrary to public policy. However, in Broström Tankers AB v. Factorias Vulcano SA,31 the High Court held that the public policy defence was of narrow scope and could only be invoked where there was some element of illegality or where enforcement of the award would be clearly injurious to the public good or wholly offensive to the public.
The Mediation Act came into effect on 1 January 2018. The Mediation Act applies to all civil disputes with some exceptions, including arbitrations, Workplace Relations Commission disputes, applications seeking leave to apply for judicial review and judicial review proceedings.
Under the Mediation Act, solicitors, including in-house solicitors, are required to advise their clients to consider mediation as a form of dispute resolution and make a statutory declaration confirming they have done so. More particularly, a solicitor is required to:
- provide the client with information regarding mediation, including the names and addresses of the people who provide mediation services;
- inform the client of the advantages of ADR and of the benefits of mediation;
- inform the client that mediation is voluntary and, if relevant, that it may not be an appropriate means of resolving the dispute where the safety of the client or their children is at risk;
- inform the client that they (the solicitor) will need to make a statutory declaration confirming that they have complied with their obligations; and
- inform the client that if the statutory declaration is not provided the court will adjourn the legal proceedings.
A party does not have to go to mediation and can proceed directly to court if they wish.
If the parties agree to mediate, time stops running for the purpose of the limitation period in which to bring proceedings on the date when the parties sign the agreement to mediate. Time will recommence 30 days after any termination of the mediation.
A court may adjourn legal proceedings to afford parties an opportunity to engage in mediation. A party who refuses to engage in mediation without good reason may later be penalised in costs. The Court of Appeal in Danske Bank & Anor. v. SC  IECA 117 refused an application to adjourn proceedings to allow the parties to mediate, having regard to the conduct of the litigation, the stage of the proceedings, the potential effect of an adjournment on the proceedings, the likely success of the mediation and the bona fides of the application. The Court of Appeal referred to its decision in Atlantic Shellfish Limited & Anor v. Cork County Council & Ors  2 IR 575 and the principle that a court should only exercise its discretion to invite parties to mediate if it considers it appropriate to do so having regard to all of the circumstances of the case.
iv Other forms of ADR
Conciliation is often used in employment and construction disputes. Expert determination and adjudication have been most often utilised in specialist disputes, for example, construction disputes. Reference to expert determination is usually also included in agreements for lease in the context of rent review disputes.
VI OUTLOOK AND CONCLUSIONS
In terms of outlook generally, we believe that Brexit will create valuable opportunities in Ireland, which will be the only remaining English-speaking common law jurisdiction in the EU. Any withdrawal of the United Kingdom from the EU is considered to likely be a key factor for companies in the EU when it comes to choice of law and choice of jurisdiction clauses in agreements. Ireland will be able to offer these companies all the advantages that are currently available through its continued membership of the EU. The International Swaps and Derivatives Association Inc (ISDA) has already recognised Ireland's importance after any Brexit by publishing an Irish law version of its 2002 ISDA Master Agreement and certain credit support documents.
The enthusiasm of practitioners and the judiciary to embrace electronic alternatives (e.g., predictive coding, technology assisted reviews, paperless hearings) to traditional paper-based practices is continuing to grow and it is widely considered that these alternatives will have a positive impact on the legal landscape in this jurisdiction.
1 Andy Lenny is a partner and Peter Woods is a senior associate at Arthur Cox.
2 SI No. 502/2019 – Legal Services Regulation Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2019 (this is the sixth commencement order).
3 Tobin v. Minister for Defence & Ors  IESCDET 202.
4 See Rules of the Superior Courts (Conduct of Trial) 2016 (SI No. 254 of 2016), which came into operation on 1 October 2016.
5 See Merck Sharp & Dohme Corporation v. Clonmel Healthcare Limited  IESC 65 regarding the Supreme Court's analysis of the principles to be applied in applications for preliminary injunctions.
6 Order 6, Rule 10.
7 Allied Irish Bank plc v. Aqua Fresh Fish Limited  IESC 49.
8 Article 66(1).
9 Article 66(2).
10 Regulation (EC) No. 2201/2003. On 25 June 2019, the Council of the European Union adopted the Brussels II Regulation (recast), which will apply from 1 August 2022.
12  IEHC 242.
13 See also Ewing v. Ireland & Anor  IESC 44; BPSG Limited t/a Stubbs Gazette v. The Courts Service & Anor  IEHC 209; Friends of the Irish Environment v. Commisioner for Environmental Information & Ors  IEHC 597.
14 Part 2 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 modified the in camera rule to grant bona fide representatives of the press access to family law and child care court proceedings. There are strict reporting rules imposed on attendees, including a prohibition on the publication of material likely to lead to the identification of the parties or any child to whom the proceedings relate.
15  IEHC 357.
16  IEHC 117.
17 See Moorview Development Limited & Ors v. First Active Plc & Ors  IESC 33; WL Construction Limited v. Chawke & Ors  IECA 113.
18 See Coolbrook Developments Limited v. Lington Development Limited & Anor  IEHC 634; Hedgecroft Limited T/A Beary Capital Partners v. Htremfta Limited (Formerly Dolmen Securities Limited) & Ors  IECA 364.
19 See Smurfit Paribas Bank v. AAB Export Finance Limited  1 IR 469.
20  IEHC 160.
21 Case C-550/07 P, ECLI:EU:C:2010: 512.
22 See Artisan Glass Studio Limited v.The Liffey Trust Limited & Ors  IEHC 278; Ryanair Limited v. The Revenue Commissioners & Ors; Aer Lingus plc v. The Minister for Finance & Ors  IECA 222; Defender Limited v. HSBC Institutional Trust Services (Ireland) Limited & Ors  IEHC 587.
23  1 IR 627.
24  IEHC 274.
25  IESC 18.
26  IR 217.
27 See also the Supreme Court decision in Tobin v. Minister for Defence & Ors  IESC 57 (referred to above).
28 Order 31 Rule 12 (1) RSC as amended by SI No. 93 of 2009.
29 Bayerische Moteren Werke AG v. Ronayne (t/a BMWCare)  IEHC 509; Cooper Flynn v. Raidió Teilifís Éireann  3 IR 344; Framus Limited v. CRH plc  IESC 25.
30  IEHC 259. See also Goode Concrete v. CRH PLC & Ors  IEHC 534 and Word Perfect Translation Services Limited v. The Minister for Public Expenditure and Reform (No.2)  IECA 87 in connection with putting in place a confidentiality ring to protect commercially sensitive information.
31  IEHC 198.