The Commercial Court: almost one year on

Ireland’s Commercial Court commenced operation on 12 January 2004. It has two Judges, Mr. Justice Peter Kelly and Mrs. Justice Mary Finlay Geoghegan.

The Court is principally concerned with proceedings of a commercial nature involving claims of at least €1million arising from or related to:

  • a business contract or dispute;
  • the purchase or sale of commodities/export or import of goods;
  • the carriage of goods by land, sea, air or pipeline;
  • the exploitation of any natural resource;
  • insurance or re-insurance;
  • the provision of services (not to include any medical, quasi-medical or employment contract);
  • the operation of markets or exchanges in stocks/shares or other financial/investment instruments. 

Certain other commercial proceedings, such as intellectual property cases and applications/appeals for judicial review of regulatory decisions, fall within the remit of the Court irrespective of their value.  The Court also gives the Judge discretion to include other cases of a commercial nature with a value of less that €1million. 

Two of the most striking features of the Court are the speed with which cases can progress to trial and the nature of the proceedings it is willing to hear.  From reports, it appears that five weeks is the average time from entry into the Commercial List to allocation for trial.  (See table of Commercial Court Statistics below).

How is this being achieved?  It appears that the use of timetables for the exchange of pleadings (the claim and the defence), a strict adherence to those timetables and awards costs where parties are in default are the main factors which have contributed to the efficiency of the operation of the Commercial Court.

Applications for admission to the Court can be made at any time prior to the close of Pleadings.  It is normal, however, for the application to be made shortly after proceedings have been issued or after the Statement of Claim has been delivered.  The Application must be accompanied by a certificate from the Plaintiff’s solicitor stating that the proceedings fall within the definition of commercial proceedings.  Mr. Justice Kelly has stated that he will not favour certificates which are drafted in vague terms and has directed that solicitors should identify precisely the category of case they are seeking to have admitted to the list or the basis on which they are seeking to rely upon any of the exceptions.

As a result of the speed with which cases are handled, the Plaintiff will have to do most of the preparation at the beginning, which means a front loading of costs. This has implications for Plaintiffs who are somewhat reluctant, and who should seriously consider whether this is the appropriate Court for them.  It should also be noted that Defendants can apply to transfer cases to the Commercial Court.  So, while the Plaintiff’s case may not be ready, the Defendants may be better prepared and might push for an early trial date, with an adverse result for the Plaintiff.

The following sets out certain key principles for the conduct of litigation in the Commercial Court:

  1. All parties must attend an initial hearing at or following the hearing at which the case is entered into the Commercial list.  This will include consultation on a timetable for the exchange of pleadings, the making of discovery, the inspection of documents and the exchange of statements from witnesses as to fact and experts.
  2. A case management conference may be held.  This is specifically for complex cases where there are various issues, numerous parties, a large amount of documentation or where other special reasons prevail.  The main purpose of the case management conference is to prevent the case from getting bogged down with irrelevant issues which leads to delays and an increase in costs.
  3. A pre-trial conference may be called.  The Court may require that both parties complete and lodge a pre-trial questionnaire and the Court may request the parties to consult with each other with a view to agreeing a list of documents to be relied on at the trial.  They may also be asked to agree the issues in dispute.
  4. On the issue of evidence there will be a provision for the formal exchange of witness statements as to fact and expert statements.  Evidence will also be taken by witnesses by way of video link. 
  5. The Court may permit the Judge to adjourn proceedings to enable parties to consider whether the proceedings ought to be referred to a process of mediation, conciliation or arbitration.  While participation is not mandatory there may be cost implications if one of the parties adopts an unreasonable or obstructive approach when considering these alternatives. 

The Court also has the benefit of new rules relating to costs and it has not been slow to use them.  It can implement these cost sanctions where it deems that the pleadings contain unnecessary matters or are unnecessarily lengthy.  It is designed to focus the parties on drafting pleadings with more specificity than has previously been the practice in Ireland.  

In conclusion, this new Court has adopted a practical commercial approach to business disputes which is not only welcomed by the legal system but also by clients. 

Cases admitted to the list 24
Cases refused entry to the list 2
Full hearings 1
Significant preliminary issues/applications heard (resulting in the dismissal of 4 actions) 6
Written judgments delivered 7
Cases listed for full hearing next term (of which one part heard) 4
Cases disposed of (of which) 15
   Full hearing 1
   Dismissed by the Court 4
   Settled between parties after Directions hearings and in some cases Interim Orders made 7
Settled after Interlocutory hearing 1
Settled having been listed for hearing 1
Settled between parties subsequent to entry 1
Average time periods
From issue of Notice of Motion for entry until the Return date 5 days
From entry to List to allocation of date for trial (whether for full hearing or preliminary issue) 5 weeks
From entry to List to conclusion of action (of which) 6 weeks
  Cases settled 3 weeks
  Cases heard by the Court 8 weeks
Number of cases by category under Order 63A
Rule 1 (a)(i) 7
Rule 1 (a)(ii) 4
Rule 1 (a)(vii) 1
Rule 1 (a)(viii) 1
Rule 1 (b) 6
Rule 1 (e) 2
Rules 1(d),(f) & (g) 1 case each

Oonagh Toner: otoner@hayes-solicitors.ie December 2004