The Dispute Resolution Review: Ireland

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. The High Court also has a Commercial Planning & Strategic Infrastructure Development List for judicial reviews relating to strategic infrastructure development or strategic housing development, and planning cases admitted to the Commercial List; and a Competition List for competition proceedings (as defined in Order 63B of the Rules of the Superior Courts (RSC)).

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.

The year in review

i Review of the Administration of Civil Justice Report (December 2020)

Following a decision of the government in 2017, a Review Group was established to review and reform the administration of civil justice in Ireland. It was requested to report and make recommendations for changes with a view to improving access to civil justice in Ireland, promoting early resolution of disputes, reducing the cost of litigation, creating a more responsive and proportionate system and ensuring better outcomes for court users. The Review Group's Report was published in December 2020 and it contains in excess of 90 recommendations. Some of the key recommendations include the following:

  1. the introduction of a procedure for automatic discontinuance of cases;
  2. the provision of a single originating document in the form of a claim notice to replace the numerous types of originating document;
  3. the establishment of a separate and distinct High Court list for clinical negligence actions and a dedicated list, as an adjunct to the Commercial Court, to hear and determine intellectual property disputes and disputes concerning technology;
  4. revising the discovery process, complemented by court rules specifically obliging parties to plead their case with greater particularity and precision;
  5. changes to the threshold for bringing judicial review applications:
    • leave to commence judicial review proceedings should not be granted unless the court is satisfied that there are substantial grounds for contending: in the case of certiorari, that the impugned decision is invalid or ought to be quashed; and in the case of reliefs other than certiorari, that such reliefs should be granted; and
    • leave should not be granted unless the court is also satisfied that the claim has a reasonable prospect of success at trial;
  6. the introduction of a comprehensive multi-party action procedure in the High Court and the Circuit Court;
  7. the drawing up of guidelines as to litigation costs levels;
  8. permission for third-party funding of litigation for liquidators, receivers, administrators under the Insurance (No. 2) Act 1983, the Official Assignee or trustees in bankruptcy to fund proceedings intended to increase the pool of assets available to creditors, on condition that the applicant for funding was satisfied that a reasonable case against a prospective defendant existed and would result in increasing the pool of available assets; and
  9. the use of video-conferencing for the taking of expert and other evidence.

ii Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020

The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (2020 Act) was enacted in August 2020 and introduced a number of reforms to the Irish courts and legal system, partly to meet the challenges created by the covid-19 pandemic. Some of the key reforms include the following:

Remote hearings

Section 11 of the 2020 Act provides for the remote hearing of civil proceedings. The court may direct that proceedings be conducted by remote hearing on the court's own initiative or on the application of any party to the proceedings. If it appears to the court that the conduct of the proceedings by remote hearing would be unfair to any of the parties or otherwise be contrary to the interests of justice, the court, of its own motion or on the application of any of the parties, may decide that the proceedings will not be conducted by remote hearing.

Statement of truth

Section 21 of the 2020 Act provides for the use of a statement of truth in civil proceedings in place of sworn affidavits and statutory declarations. This replaces the traditional approach of swearing these documents on a religious oath (or making an affirmation) and in the physical presence of an independent practising solicitor or a commissioner for oaths. A statement of truth is a simple declaration that confirms the facts stated in the document are true and it may be in electronic form. It must state that the person making the statement has an honest belief that the facts as stated are true and it may be signed by the person making the statement electronically. It is a criminal offence to make a statement of truth without an honest belief as to the truth of that statement. The statutory penalties for committing such an offence are a €5,000 fine or imprisonment up to 12 months, or both (on summary conviction), or a fine up to €250,000 or imprisonment up to five years, or both (on conviction on indictment).

Admissibility of business records in civil proceedings

Chapter 3 of the 2020 Act introduces a significant change to the law of evidence in civil proceedings and creates a statutory exception to the hearsay rule. Section 13 of the 2020 Act provides that any record in document form compiled in the ordinary course of business is presumed to be admissible as evidence of the truth of the facts asserted in that document where that document complies with the relevant requirements. Documents will be admissible where:

  1. direct oral evidence would be admissible in relation to the content of the record;
  2. the information was compiled in the ordinary course of a business;
  3. the information was supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with (regardless of whether the person compiled the information and is identifiable); and
  4. if the information is a reproduction of non-legible information in permanent legible form, and that process occurred in the course of the normal operation of the reproduction system in question.

This development dispenses with the need for an individual to come before the court and give evidence as to the provenance and veracity of a document. The statutory presumption may be challenged and it will be for the other party to establish that the evidence contained in the document is untrue or incorrect. Section 14 details the requirements for the admissibility of business records. Section 16 provides for safeguards on the operation of the procedure and states that business records shall not be admitted into evidence if the court is of the opinion that to do so would not be in the interests of justice.

iii Supreme Court decisions on the Freedom of Information Act 2014

The Supreme Court delivered two decisions on the same day in relation to the Freedom of Information Act 2014 (2014 Act). Under the 2014 Act, a person can seek disclosure of a record held by a public body or a body that receives public funding. The Supreme Court held that where such a body decides not to disclose certain records (on the basis of an exemption under the 2014 Act, e.g., confidentiality (Section 35) or commercial sensitivity (Section 36)), the reasons for the decision must be fully explained, and the public body must be in a position to justify why the public interest does not justify the disclosure of the records. This overturned a much-talked about decision of the Court of Appeal, which held that the presumption in favour of disclosure did not apply to records that fall within a statutory exemption.2 The Information Commissioner in both cases had determined that the public bodies in question were required to justify a refusal to disclose under the 2014 Act and that non-disclosure could only be justified in exceptional circumstances, which, it said, did not arise.

The case of Minister for Communications, Energy and Natural Resources v. The Information Commissioner 3 concerned the necessary justification for a decision to refuse disclosure (Section 22 of the 2014 Act), and the public interest balancing test (Sections 35 and 36). The Supreme Court ruled that the Information Commissioner was correct in finding that public bodies are required to provide substantive reasons for refusing disclosure of their records even if those records fall within one of the statutory exemptions under the 2014 Act. However, the Supreme Court held that the Information Commissioner was incorrect in requiring evidence of exceptional circumstances to justify a lawful refusal to disclose as this posed an unduly high bar on public bodies. The Supreme Court further held that information could be excluded if its disclosure would amount to a breach of a duty of confidence as created by contract or statute (under Section 35(1)(b)) and the public interest override in Section 35(3) did not apply. The Supreme Court observed that public bodies are precluded from generating confidentiality by their own actions in the absence of a contractual or statutory basis.

In University College Cork v. The Information Commissioner 4 the Supreme Court considered the correct interpretation and application of the disclosure exemption based on commercial sensitivity (Section 36(1)(b) of the 2014 Act), and the High Court's approach to the presumption of an unjustified refusal (Section 22(12)(b)). The High Court found that if the disclosure of a record was the subject of a statutory exemption, then the presumption in favour of disclosure did not apply and no justification was required. The Supreme Court overturned that finding and held that the Information Commissioner had been correct in requiring University College Cork to establish that the records were commercially sensitive and that the public interest was not better served by disclosing them (Section 36(3)).

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:

  1. actions under contract and tort, and claims for rent arrears: six years from the date on which a cause of action accrues;
  2. actions upon an instrument under seal, and for the recovery of land: 12 years from the date on which the right of action accrues;
  3. 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;
  4. 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; and
  5. 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 a defendant 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,5 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 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. Pre the covid-19 crisis and the suspension of full court services, it was, on average, taking 12 to15 months from entry into the Commercial Court list to judgment. Therefore, depending on how quickly the backlog caused by the crisis can be addressed and also 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 Mareva injunctions (freezing orders), quia timet (to prevent imminent irreparable harm occurring) 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.6

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 the 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.7 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 (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.

In its December 2020 Report (referred to above), the Review Group recommended the adoption of a model similar to the Group Litigation Order procedure in England and Wales and it recognised 'a need in due course to legislate discretely for a single representative action procedure encompassing multiple claims to meet the requirements of the proposed EU Directive on representative actions – whether by adapting the existing representative action under Order 15 rule 9 of the Rules of the Superior Courts for that purpose or by providing separately for such an action'.

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.8 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 & Ors9).

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 courts. However, the service of Irish proceedings in a non-EU Member State requires leave from the Irish courts 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 (Hague Service 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 Service 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 the Brussels I Regulation10 and the Recast Regulation.11 The Recast Regulation applies to judgments given in proceedings commenced on or after 10 January 2015.12 The Brussels I Regulation continues to apply to judgments given in proceedings instituted before 10 January 2015.13 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 Regulation14 (see below) applies in respect of jurisdiction and the recognition and enforcement of judgments in matrimonial matters and 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 for a definite sum, final and conclusive and 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 SpA15).

vii Assistance to foreign courts

European Communities (Evidence in Civil or Commercial Matters) Regulations 201316 facilitate the taking of evidence in Ireland at the request of another Member State court. The Circuit Court is the competent court to take evidence in Ireland and the power is exercised by the County Registrar in the county in which the witness resides or carries on business. Where the evidence is to be taken by the Circuit Court, it must do so without delay and within 90 days of receipt of the request. The Courts Service is the central body in Ireland for the purposes of Article 3 and Article 17 of Council Regulation (EC) No. 1206/2001.

On 1 September 2008, the EU Convention on Mutual Assistance in Criminal Matters 2000 was implemented into Irish law by the enactment of the Criminal Justice (Mutual Assistance) Act 2008 (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 website17 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.

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)18 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.19

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 camera proceedings,20 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 inspect the document under the supervision of an officer of the court or Courts Service personnel; 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 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 21 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 & Ors22 (referring to its decision in Moorview Developments Limited v. First Active plc23) 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).24

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.25

The Irish courts have determined that after-the-event insurance does not breach the rules on maintenance and champerty in certain circumstances.26

The Supreme Court in SPV Osus Limited v. HSBC Institutional Trust Services (Ireland) Limited & Ors27 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 28 that an assignment of the right to litigate is unenforceable unless the assignee had a genuine commercial interest in the assignment.

x Costs

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.29

Documents and the protection of privilege

i 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.30

In Ochre Ridge Limited v. Cork Bonded Warehouses Limited & Anor,31 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 Commission32 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.

Litigation privilege

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.33

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. Connolly34 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 (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.35 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,36 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 Haughey37 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, 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.

In Tobin v. Minister for Defence & Ors38 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, but it noted that the key criteria remained 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:

  1. the extent of the burden that compliance is likely to place on the party making the discovery;
  2. 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
  3. 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 does not have to show that they had exhausted all other procedures available to establish relevant facts before discovery could be sought.

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.39

Parties must first seek discovery on a voluntary basis before bringing an application to court for an order for discovery.40 The Supreme Court in Tweedswood Limited (In Receivership) & Anor v. Power41 held that, when assessing the appropriate course to adopt in a discovery application, it is open to a court to have regard to the approach of the parties at the voluntary discovery stage.

The meaning of what constitutes a discoverable document was supplemented by the Rules of the Superior Courts (Discovery) 2009 (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'.42 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.43 The High Court, in the cases of Flogas Ireland Limited v. Tru Gas and Flogas Ireland Limited v. Langan Fuels Limited,44 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.

A party may bring an application to seek security for the costs of complying with a discovery order.45

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.

ii Arbitration

The Arbitration Act 2010 (2010 Act) came into operation on 8 June 2010, repealing all previous arbitration legislation in Ireland. The 2010 Act incorporates the UNCITRAL Model Law (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 arbitrators 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 an 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:

  1. a party to the agreement is under some incapacity or the agreement is invalid;
  2. improper notice was given regarding the arbitrator's appointment or arbitral proceedings;
  3. the award deals with matters outside the scope of the submission to the arbitrator;
  4. the tribunal or procedure was improperly constituted;
  5. the subject matter of the dispute is not capable of settlement by arbitration under the law of the state; or
  6. the award is in conflict with the public policy of the state.

The Irish courts are supportive of the arbitral process and will only intervene where required.46

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (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,47 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.

iii Mediation

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:

  1. provide the client with information regarding mediation, including the names and addresses of the people who provide mediation services;
  2. inform the client of the advantages of ADR and of the benefits of mediation;
  3. inform the client that mediation is voluntary and, if relevant, that it may not be an appropriate means of resolving a dispute where the safety of the client or his or her children is at risk;
  4. inform the client that he or she (the solicitor) will need to make a statutory declaration confirming that he or she has complied with his or her obligations; and
  5. 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 48 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 & Ors49 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.

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. The 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 and it presents increased scope for Ireland to become a global centre for legal services and dispute resolution. Ireland will be able to offer these companies all the advantages that are currently available through its continued membership of the EU, including in relation to the recognition and enforcement of judgments.

The challenges posed to the Irish courts and legal system by the covid-19 pandemic have been greatly moderated by the investment in technology and the accelerated rollout of remote hearings, which have ensured the continued administration of justice. Together with the other recent reforms, it is anticipated that these changes will have positive impacts for users of the Irish courts and legal system and provide required flexibility and increased efficiency. The continuing development and adoption of electronic alternatives (e.g., predictive coding, technology assisted reviews, paperless hearings) to traditional paper-based practices is increasing, and this reflects credible progress and enthusiasm to ensure that the Irish legal system continues to evolve.

Footnotes

1 Andy Lenny is a partner and Peter Woods is a senior associate at Arthur Cox.

2 Minister for Communications, Energy and Natural Resources v. The Information Commissioner and e-NASC Eireann Teoranta [2017] IECA 68.

3 [2020] IESC 57.

4 [2020] IESC 58.

5 See Rules of the Superior Courts (Conduct of Trial) 2016 (SI No. 254 of 2016), which came into operation on 1 October 2016.

6 See Merck Sharp & Dohme Corporation v. Clonmel Healthcare Limited [2019] IESC 65 regarding the Supreme Court's analysis of the principles to be applied in applications for preliminary injunctions. See also the High Court decision in O'Flaherty's (Nassau Street) Limited v. Setanta Centre Unlimited Company [2020] IEHC 272 in relation to the special status afforded to property rights.

7 Order 6, Rule 10.

8 Allied Irish Bank plc v. Aqua Fresh Fish Limited [2018] IESC 49.

9 [2013] IESC 11.

10 Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

11 Regulation (EU) No. 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (recast).

12 Article 66(1).

13 Article 66(2).

14 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.

15 [2018] IECA 46.

16 SI No. 126/2013.

18 [2013] IEHC 242.

19 See also Ewing v. Ireland & Anor [2013] IESC 44; BPSG Limited t/a Stubbs Gazette v. The Courts Service & Anor [2017] IEHC 209; Friends of the Irish Environment v. Commissioner for Environmental Information & Ors [2019] IEHC 597. See also Practice Direction HC86 regarding access to court files and Practice Direction HC101 regarding access to written submissions.

20 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.

21 [2017] IESC 27.

22 [2011] IEHC 357.

23 [2011] IEHC 117.

24 In January 2020, a joint report by the EU Bar Association and the Irish Society for European Law was published that recommended that proper provision be made in Ireland for litigation funding (and class actions). See also the Review Group Report (referred to above).

25 See Moorview Development Limited & Ors v. First Active Plc & Ors [2018] IESC 33; WL Construction Limited v. Chawke & Ors [2018] IECA 113.

26 Greenclean Waste Management Limited v. Leahy (No.2) [2014] IEHC 314.

27 [2018] IESC 44.

28 [1982] AC 679.

29 See Coolbrook Developments Limited v. Lington Development Limited & Anor [2018] IEHC 634; Hedgecroft Limited T/A Beary Capital Partners v. Htremfta Limited (Formerly Dolmen Securities Limited) & Ors [2018] IECA 364.

30 See Smurfit Paribas Bank v. AAB Export Finance Limited [1990] 1 IR 469.

31 [2004] IEHC 160.

32 Case C-550/07 P, ECLI:EU:C:2010: 512.

33 See Artisan Glass Studio Limited v. The Liffey Trust Limited & Ors [2018] IEHC 278; Ryanair Limited v. The Revenue Commissioners & Ors; Aer Lingus plc v. The Minister for Finance & Ors [2018] IECA 222; Defender Limited v. HSBC Institutional Trust Services (Ireland) Limited & Ors [2018] IEHC 587.

34 [2001] 1 IR 627.

35 [2008] IEHC 274.

36 [2009] IESC 18.

37 [1971] IR 217.

38 [2019] IESC 57. 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'.

39 The High Court in Walsh v. The Health Services Executive & Ors [2017] IEHC 394 set out a checklist of questions to be deployed by a court in determining discovery applications.

40 Order 31, Rule 12(6) RSC (as amended).

41 [2019] IESC 93.

42 Order 31 Rule 12 (1) RSC (as amended).

43 Bayerische Moteren Werke AG v. Ronayne (t/a BMWCare) [2011] IEHC 509; Cooper Flynn v. Raidió Teilifís Éireann [2000] 3 IR 344; Framus Limited v. CRH plc [2004] IESC 25.

44 [2012] IEHC 259. See also Goode Concrete v. CRH PLC & Ors [2017] IEHC 534, Word Perfect Translation Services Limited v. The Minister for Public Expenditure and Reform (No.2) [2018] IECA 87 and Goode Concrete v. CRH plc & Ors [2020] IECA 56 in connection with putting in place a confidentiality ring to protect commercially sensitive information.

45 Betty Martin Financial Services Ltd v. EBS DAC [2020] IEHC 543.

46 See K&J Townmore Construction Ltd v. Kildare and Wicklow Education and Training Board [2018] IEHC 770 and Ocean Point Development Company Limited (In Receivership) v. Patterson Bannon Architects Limited & Ors [2019] IEHC 311.

47 [2004] IEHC 198.

48 [2018] IECA 117.

49 [2015] 2 IR 575.

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