MJ O'Connor Solicitors

The Brief

23.03.2007

Commercial court - Cutting time and costs

A Guide to the Commercial Court

The Irish Commercial Court has been one of the most important recent developments in commercial litigation in this country.

Established in January 2004, the court's aim is to resolve commercial disputes quickly. This is done through the implementation of streamlined case management procedures, including a more active judicial involvement than is the norm, the use of modern technology and the implementation of alternative dispute resolution, where appropriate. It is envisaged that this would lead to reduced costs for participants and reduce the length of the trial.

As a result of these innovations, the Commercial Court has been spectacularly successful in resolving cases quickly. While it can sometimes take up to three years for a case to wind its way through the High Court, the average time for a case before the Commercial Court from commencement to conclusion is currently just 9 weeks. More than 140 cases have already been entered into the court¹s list to date

However, in order for the court to operate as expediently as it does, a much greater burden is placed on the applicant than in other courts. This is something those considering redress to the Commercial Court should bear in mind.


Qualifying for the Commercial List

There is no automatic right of entry to the Commercial List and a formal application needs to be made with the Commercial Court judge retaining full discretion. Either party in the case can apply for entry

The Commercial Court only deals with claims of one million euro or more arising out of business transactions relating to documents, contracts or disputes.

There is a broad time period in which applications may be made, although it is common practice for entry to be sought very shortly after the proceedings have been issued.

Solicitors for the applicant are required to furnish a certification that the proceedings are appropriate to be treated as commercial proceedings by setting out the relevant facts.

If the motion is granted, the proceedings will be entered on the commercial list and the judge will either fix a date for initial directions or treat the hearing of the Motion as the initial direction hearing.


Pre-Trial Procedure

The Commercial Court judge manages the case by giving directions, making orders and fixing time limits to ensure proceedings are determined in a manner which is just, expedious and likely to minimise the costs of all involved.

Initial Direction Hearing

At this hearing, should one be held, the judge will seek to expedite the matter by narrowing the issues involved thus reducing the length of the trial which leads to a knock-on effect on costs.

There are some 13 directions which the judge is empowered to make about the case, should he/she wish to do so. These include dispensing with formal proceedings and continuing the case without the necessity for oral evidence; directing the parties to define the issues from the outset and calling for an expert witness consultation


Case Management Conference

This is chaired and regulated by the case judge and attended by the solicitors for all parties. The objective of the conference is to ensure that proceedings are prepared for trial as expediously and cost effectively as possible through the use of active judicial participation and the setting of a timetable for the preparation and completion of the case.

The onus is on each solicitor attending the conference to ensure that he or she is familiar with the proceedings and is authorised by their client to deal with any matters that are likely to arise at the conference.

At this conference, the judge will fix a timetable for the completion of preparation of the case for trial. Either of the parties may present a proposed timetable to be approved by the judge.


Pre-Trial Conference

Counsel and solicitors are required to attend a mandatory pre-trial conference prior to hearing, the date for which will be scheduled during the case management conference.

The judge actively manages the pre-trial process of the conference by making orders or directions regarding potential trial length, arrangements for witnesses such as video conferencing, stenography etc.

Unless otherwise directed, the Plaintiff must consult with the other party to prepare and lodge a trial booklet with the Registrar not less than four days prior to the trial date.

This must contain copies of all contested documents or extracts including pleadings, affidavits, statements of issues, statements of correspondence and any other documents intended to be relied upon at trial.

It will also contain a case summary comprising an undisputed sequence of relevant events and issues, a list of persons principally involved in the subject of the proceedings and, if appropriate, a glossary of technical
terms.

Pros & Cons

There is no doubt that the Commercial Court can process complex commercial cases in an efficient and timely manner, especially when compared to the log-jam which often occurs with proceedings before the High Court.

These expedited hearings are due in no small measure to the case management rules which have introduced strict rules on pleadings and the prior exchange of witness statements and expert reports.

To ensure both parties adhere to agreed time limits, the judge presiding over the case may issue cost orders to penalise non-compliance with deadlines.

However, the major disadvantage of the commercial court is the enormous burden of compliance it places upon the practitioner with rules on the initial directions given, the direction given at case management and pre-trial conferences and all other court orders.

To effectively run a commercial court case, practitioners need to ensure that they have appropriate systems and support in place to deal with the demands of the commercial court.

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