Radical Overhaul of Pre-Trial Procedures set to Reduce Litigation Time and Costs
14th June 2016
On 5 April 2016 a new statutory instrument (255/2016) in relation to pre-trial procedures in High Court civil cases (the “New Rules”) was signed into law. The New Rules which affect all High Court chancery and non-jury actions (essentially all civil cases other than Commercial Court, personal injury, defamation and competition law actions) will take effect from 1 October, 2016 and represent a radical overhaul of the way civil cases will proceed to trial. Whilst the New Rules are silent on the point it would appear that they will affect both pre-existing and new cases as and from 1 October.
The following are the most significant changes to the previous procedures:-
- Overarching Pre-Trial Powers (Rule 4) – A Judge may at any time give any directions in relation to the manner in which proceedings are to be conducted which he deems just and likely to minimise costs. This is a very significant power which obviously could be used in any number of ways.
- Oral Evidence (Rule 5) – A Judge may now determine at any stage that a case should proceed only by way of Affidavit evidence and/or by means of an agreed statement of issues. Exercise of this power would remove the need for a lengthy trial with oral evidence from witnesses.
- Case Management Conferences/Pre-Trial Conferences (Rules 6 & 9) – Judges can decide to case manage proceedings at any stage which will, inter alia, allow Judges to set strict timelines for the delivery of pleadings in order to bring matters to trial in a much more expeditious manner. In any case not being case managed there will nonetheless be a pre-trial conference unless the Judge orders otherwise. In advance of such conference parties must prepare submissions on points of law, explanatory documentation where technical matters are at issue, case summaries including a chronology of events and other documentation not previously required.
- Witness Statements (Rule 17) – There is an obligation (unless the Judge specifically orders otherwise) on parties to file and serve witness statements of all their proposed witnesses at least 30 days before the trial. This means the parties will have a much better idea of the strengths and weaknesses of their case well in advance of trial which should in theory lead to settlement of cases at an earlier stage.
- Dedicated Judges and Registrars (Rule 3) – The New Rules provide that certain Judges and Registrars may be appointed exclusively to take charge of specific lists. Such specialisation has been seen to be very effective in the Commercial Court.
- Electronic Documents (Rule 22) – the New Rules provide for the possibility of the service, exchange and lodgment of documents by electronic means with such documentation being sent straight to the appropriate Judge’s Registrar which will greatly reduce administration.
These are just some of the stand out provisions. However there are many further new provisions and procedures brought in by the New Rules. It should be said that some, but by no means all, of the provisions mirror provisions already applying to cases before the Commercial and Competition Courts and indeed provisions already used in personal injury actions. However not all of these provisions are enforced in practice in those Courts and accordingly it will be interesting to see whether or not the New Rules will be fully utilised from the off or whether it will take time for Judges and practitioners to fully implement these extensive new procedures.
Some of provisions (eg. preparation of witness statements and preparation for pre-trial conferences) will increase the lawyer’s workload and front load costs - but this is presumably considered justified by the likely savings arising from having quicker litigation generally and earlier commercial settlements.
There is no doubt that from the client’s point of view that these new provisions make sense and hopefully should lead to greater clarity about how litigation is likely to progress, both in terms of timing and outcome, which will in turn allow for proper commercial assessment of the merits of litigating, defending or settling specific cases.
On the 15th of April 2016 also, a counterpart Statutory Instrument, SI 254 of 2016, was also signed similarly overhauling procedures at trial itself and also setting out new rules in relation to, inter alia, non-party disclosure and expert evidence.