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Q&A on the Irish Commercial Court

AUTHOR(S): Sharon Daly
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
DATE: 12.11.2019

Enforcement of Judgments

1. The enforcement of foreign judgments and arbitral awards is essential in today’s global economy. Why should parties choose your jurisdiction and governing law?

Our Court offers direct enforcement of EU and EFTA judgments as a result of the Lugano Convention and the Brussels Recast Regulation. These treaties allow for effective and efficient enforcement of foreign judgments. The definition of judgment is far broader than under the common law rules . There is absolute certainty on the process adopted by the courts on enforcement and the court is alive to the tactical use of enforcement proceedings by some parties who’s claims are unmeritorious and will not allow such an abuse of practice to occur.

2. As a follow on to this question how do you see the UK leaving the EU impacting the choice of jurisdiction and governing law of contracts?

In the lead up to Brexit we have seen more commercial parties choosing the Irish jurisdiction and law to resolve their disputes as it gives them certainty of outcome and achieves continuity of the existing position they had pre-Brexit allowing for a seamless transition from the UK to Ireland.  We also can offer a level of certainty around enforcement that the UK can’t.  We are simply the most convenient choice.

Expert Evidence

3. From experience in Ireland what are the pros and cons on the use of expert evidence?

Pros: In complex commercial matters the practice in common law courts is to adduce independent evidence from experts to assist the courts understanding of the technical issues in dispute so as to accurately determine the contractual responsibilities of the parties and to benchmark the standard of a reasonable competent professional. The manner in which experts give evidence varies between jurisdictions.

The Irish Court does not currently have explicit rules on the standards to be applied to the taking and giving of expert evidence. The expert is expected to be impartial and to assist the court. However as we don’t have a practice of court appointment of single experts, the experts evidence tends to be a product of the information provided to the expert in advance.

The commercial court rules provide for expert meetings in advance of oral trials to narrow the scope of oral evidence by the experts engaging to identify the net points in dispute. This saves time and costs and ensures clarity for parties pre-trial as to what they are actually facing.

Cons: As in any jurisdiction, there is always the risk that expert witnesses will overstep as to their expertise or simply act as a “hired gun”(!) for their instructing party. In many cases the experts really act to neutralise each other and the case is determined either on the facts or on legal points.

Multi-Plaintiff Litigation

4. Can you explain how the Irish courts have managed multi-plaintiff litigation and do you consider we need to legislate for class actions?

We do not have a legislative framework for “class actions” per se.  Multi-plaintiff litigation is resolved through test cases and representative actions.  This process has been examined by US courts on forum non conveniens challenges and found to be equivalent.

For consumers it is considered that class action regimes bring rigor to large commercial entities in a way that representative actions do not. This is one point of view but I would argue that in many cases the winner in class actions is not the consumer and that the representative action ensures that the parties with the grievance benefit from the case, if successful. The downside for the consumer is they have to fund the litigation, which in this jurisdiction often means finding lawyers who will take the case on a no foal no fee basis. Acting for defendants in the representative action is, in my view, preferable and I am of the view that it may also be better for meritorious claimants. If a defendant has a liability or is likely to lose a claim it tends to set up an ADR claims process to assess and pay claims.

Litigation Funding

5. Can you confirm if funding is available in your jurisdiction and give a very quick view on the pros and cons of funding?

There are three types of litigation funding permitted in Ireland, 1) after the event insurance, 2) no foal, no fee arrangements between client and lawyer and 3) third-party funding where the funder has a legitimate pre-existing interest in the litigation.  Commercial third party funding is not permitted.

The rational underpinning the law on the funding of claims is public policy driven and was to ensure that parties who have no pre-existing interest in a claim cannot profit from another party’s claim. So trading in litigation is not permitted. There is however a case to be made for the introduction of third party funding which is expensive finance but not trading in claims.  A recent judgment by the Supreme Court[1] has urged the legislature to review these rules and it is hoped that once the dust of Brexit settles, this is something that will be subject to change.

Technology

6. We are moving into a digital world-  how has the Irish court embraced technology?

The Irish Courts are embracing the use of technology. In the last year, the Courts have launched an online system which allows Supreme Court applications for leave to be filed and determined online, we have introduced e-licensing and a new online system for legal costs adjudication. The Courts service are also receiving substantial funding to its IT which will allow them to roll-out a fully online system in early course.

From a commercial court perspective, I can say that we are leading the way with the court facilitating the use of online shared platforms, which eliminate the use of paper, allow for real-time evidence to be given from multiple locations with co-counsel working online from various jurisdictions in respect of the trial in Dublin, allows hyperlinking of the documents to the transcript and incorporates audio transcription. These systems are fundamentally changing the way we can deliver dispute resolution services. Indeed our clients and witnesses do not need to waste time travelling to an Irish court as they can listen to and read the evidence as it is given and send comments to the legal team as the evidence is given to ensure the best outcome in the giving and taking of evidence.

[1] SPV OSUS Limited

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