Ireland: Litigation & Dispute Resolution - Third Edition


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.


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.



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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Maples and Calder
Dillon Eustace
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Maples and Calder
Dillon Eustace
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions