Ireland: Litigation & Dispute Resolution - Third Edition

EFFICIENCY OF PROCESS

The Irish court system, which is a common law system, has evolved significantly over the last decade. The system now provides fast and effective resolution to even the most complicated of matters.

The most significant developments in this regard are the Commercial Court and the inception of the Court of Appeal.

The Commercial Court

The Commercial Court was established in 2004. It has proven itself to be an effective forum for commercial dispute resolution. It is a division of the High Court and was established to provide efficient dispute resolution in commercial cases. Ten years later, the Commercial Court has a reputation for dealing with commercial litigation in a practical and cost-effective manner. The Commercial Court has its own specific set of rules, the Commercial Court Rules, which dictate the manner in which the court issues directions to the parties and the way it conducts proceedings once at trial. The Commercial Court Rules are designed to encourage litigating parties to agree as many issues as possible between them before the matter goes to trial so that the hearing can focus only on relevant issues that remain in dispute. Where suitable, the court will seek to encourage the parties to resolve their differences without going to trial. It should be noted that other courts in Ireland have been remodelled in the image of the Commercial Court, acknowledging the success of the Commercial Court approach.

Commercial Court proceedings commence as normal High Court proceedings. Once an initiating writ is issued, an application to have a case admitted to the Commercial List can be made at any time prior to the close of pleadings. In practice however, unless a party seeks entry into the list at the outset, it is less likely to be admitted due to the pressure and demands on the court.

To be included in the Commercial Court list, the proceedings must fall within the definition of "commercial proceedings" as defined in the Commercial Court Rules. Generally, the claim disputed must be for a minimum of €1m and relate to certain types of disputes.

The Commercial Court judge hearing the application has complete discretion when deciding whether to allow a case entry into the Commercial List. The value threshold is not a hard and fast rule for entry and a judge may decide to admit a case which does not meet that value threshold for various reasons. Furthermore, some of the categories, including those relating to intellectual property, do not set a minimum value threshold.

Once admitted to the Commercial Court list, cases are closely managed by the judge. Strict and tight deadlines are set for the various stages in the process and failure to comply with the deadlines can have cost implications.

Commercial Court statistics from 2004 to 2012 highlight the success of the court. By the end of 2012 there were 1,819 cases admitted to the list and 1,715 disposed of since the inception of the List in 2004. The overriding aim of the Commercial Court was to speed up commercial litigation, and while the number of cases in the system has increased significantly, the court has maintained a swift turnaround time. According to the most recently available statistics, over 90% of the cases entered into the list conclude within a year. The statistics show the Commercial Court is well equipped to handle the escalation in commercial litigation which the recession has generated.

The Commercial Court has provided a more satisfactory framework within which to conduct commercial related litigation. As a consequence, Ireland is now being increasingly regarded as a forum of choice for international commercial disputes. Proceedings are overseen by judges with established commercial backgrounds. Non-material issues are culled at an early stage in proceedings which allows the focus to fall on the material issues in dispute. This has resulted in shorter trials and is, unquestionably, a more precise and efficient means of disposing of commercial disputes.

The Court of Appeal

The advent of the Court of Appeal is another important development in this jurisdiction. At the moment, decisions of the High Court are appealed to the Supreme Court. Over time, delays have built up in hearing these appeals. The creation of a new Court of Appeal had been mooted for several years and in October 2013 a referendum amending the Constitution to provide for the setting up of the new Court of Appeal was passed.

The legislation setting up the new Court of Appeal has not yet been enacted. However, the legislation is expected shortly and, when it is passed, the new Court of Appeal will hear all appeals from the High Court except those where the Supreme Court considers that there are exceptional circumstances which warrant a direct appeal to it. The Supreme Court will only hear appeals from the Court of Appeal if the Supreme Court considers that the decision involves a matter of general public importance or the interests of justice require such an appeal.

It is expected that the new Court of Appeal will significantly reduce waiting times for appeals from the High Court.

INTEGRITY OF PROCESS

The independence of the court system and the courts is protected by the Irish Constitution. In the Irish Constitution, there is a division of powers between the legislature, the executive and the judiciary. The impartiality of the judiciary is generally accepted.

DISCLOSURE AND PRIVILEGE

Disclosure

What is known as disclosure in other jurisdictions is called "discovery" in the Irish legal process. It is an established part of litigation in Ireland. Discovery of documentation in proceedings can be agreed between the parties or, in the absence of an agreement, may be ordered by the court where discovery of documentation sought is found by the court hearing the application to be relevant and necessary. The burden of proof lies with the party seeking discovery.

Once discovery of a certain category of documentation is agreed or ordered the party must provide discovery of any relevant and necessary documentation within its power, procurement or possession. This potentially imposes a very heavy burden on the party making discovery, particularly when not only physical documentation but also vast amounts of electronically stored information may be subject to the Order.

There are cost implications for the party making such a large amount of discovery both in terms of resources committed to reviewing documentation and the gathering of all relevant and necessary documentation in his power, procurement or possession.

In order to streamline the process, various practices have grown up in the High Court and particularly in the Commercial Court division aimed at minimising the burden of discovery without damaging the discovery process.

Where documentation is identified as relevant and necessary, it must then be considered whether any privilege ought to attach to the document which would prevent it from being given as part of the discovery to the other party.

Privilege

The concept of legal privilege provides that certain communications between a client and his solicitor are privileged and immune from subsequent disclosure to a third party. This is broadly similar to many other common law jurisdictions. When legal privilege has been established neither the client nor the solicitor can for any reason be compelled to disclose details of this communication. Privilege over documents covers traditional paper communications such as letters, notes and memos of conversations and documents incorporating or reproducing legal advice. It also includes items such as e-mails, voicemails, computer databases and recordings.

Legal professional privilege will not apply in situations where communications exist in furtherance of conduct which is considered by the courts to be criminal, fraudulent or contrary to the interests of justice.

There are two main types of privilege recognised in this jurisdiction.

Litigation privilege

This arises only after litigation or other adversarial proceedings have been commenced or are contemplated, and it protects all documents produced for the sole or dominant purpose of the litigation in question.

Litigation privilege includes all communications between:

  1. a solicitor and his client;
  2. a solicitor and his non professional agent; and
  3. a solicitor and a third party.

For litigation privilege to exist there must be a reasonable likelihood of litigation; a mere vague possibility that proceedings may arise in the future will not be sufficient. The communications must be made for the dominant purpose of advancing the prosecution or defence of the case or the seeking or giving of legal advice in connection with it.

A recent decision of the English High Court demonstrates a strict approach in analysing the purpose for which a report was prepared in order to determine if a claim for litigation privilege was available. The court held that privilege will only apply if it can be shown that the litigation in question could be characterised as the "dominant purpose" for its creation. If the document was created for one of a number of reasons of equal importance then a claim for litigation privilege will fail.

In that case the report was prepared by a liquidator both for the collection of assets and the settlement of liabilities, and also for use in legal proceedings. The decision has been followed in Ireland.

The court noted that difficulties may arise where documents are produced for a dual purpose but, in that particular case, the court held that none of the reports in question were subject to litigation privilege.

Legal advice privilege

Legal advice privilege protects communications between a solicitor, acting in his professional capacity and his client, provided that the communication is confidential and for the purposes of seeking or giving legal advice.

The key difference between litigation privilege and legal advice privilege is that correspondence with an independent third party is not covered by legal advice privilege.

Privilege is not limited to advice about a client's legal rights and obligations but includes all confidential communications relating to what should be done in any given legal context. This broad interpretation of legal advice privilege covers all communications between a solicitor and his client, prepared in his role as a legal adviser.

However, the protection of legal advice privilege only applies to communications between a lawyer and his client. In the case of communications between legal advisers and a large organisation it cannot be assumed that all employees of that organisation will be considered to be the client for the purposes of legal advice privilege. Where communications pass between a solicitor and an employee who is not considered to be a client, then that documentation may not be subject to privilege.

In-house lawyers

In the Akzo Nobel case the European Court of Justice (the "ECJ") confirmed that communications between in-house lawyers and other employees of the company are not privileged in relation to European Commission competition law cases. The basis for this decision was that an in-house lawyer does not enjoy the same level of independence from his client as an external one. As a result, the ECJ held that only written communications exchanged between internal counsel and an independent external lawyer can avail of professional legal advice privilege.

While the decision of the ECJ applies only to EU Commission competition investigations it clearly shows the attitude of the ECJ to the role and protection afforded to communications exchanged by internal counsel. Clearly, this limitation must be borne in mind by organisations in circumstances where documents are prepared which they may ultimately need or seek to claim privilege.

To read this Edition in full, please click here.

Originally published by Global Legal Group Ltd, London.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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