1. SOURCE OF LAW
Ireland is a constitutional democracy with a common law jurisdiction. It is a member of the European Union since the 1st January 1973. The European Convention of Human Rights was incorporated into Irish Law in 2003.
2. THE COURTS
The Irish Courts system is divided between Civil and Criminal Business. In relation to Civil Litigation we have the following Courts.
i. Supreme Court
ii. High Court
iii. Circuit Court
. SUPREME COURT
The Supreme Court consists of the Chief Justice, seven other Supreme Court Judges. The Supreme Court hears appeals from The High Court and cases stated on points of law from the Circuit Court. It has an original jurisdiction in certain Constitutional matters.
. THE HIGH COURT
The High Court is the Court of unlimited original jurisdiction and hears Appeals from the Circuit Court. It decides points of Law by way of case stated from the District Court. It is made up of a President and 29 Judges. A Commercial Court Section of the High Court was established in 2004 to deal with significant commercial disputes and particular types of business disputes.
. THE CIRCUIT COURT
The Circuit court has a monetary damages jurisdiction of up to €75,000 (€60,000 for Personal Injury Actions) in contract and tort claims and a substantial jurisdiction in property disputes and family law. It also hears appeals from the sittings of the District Court.
. THE DISTRICT COURT
The District Court has a jurisdiction Contract and Tort claims limited to €15,000 and a limited jurisdiction of property disputes, family law and licensing.
‘The Courts and Civil Law (Miscellaneous Provisions) Act 2013 (Jurisdiction of District and Circuit Court)(Commencement) Order 2013 was enacted in late 2013 and established the 3 February 2014 as the commencement date for the new monetary jurisdictions of the civil courts’.
3. JUDGES SOLICITORS AND BARRISTERS
Judges are appointed by the Irish Government after consultation with the Judicial Appointments Advisory Board.
Irish Solicitors which are regulated by The Law Society of Ireland have a right of audience in all Irish Courts. They usually present cases in the District Court and instruct Barristers in the Circuit, High and Supreme Courts. However they can take cases themselves in these Courts.
Barristers are administered by The Bar Counsel of Ireland and generally deal with Advocacy in the Higher Court.
4. COURT PROCEDURES
Preparation of a Circuit Court or a High Court Trial involves three distinct phases.
a. Exchange of written documents (known as Pleadings)
b. Disclosure of Documents (known as Discovery)
c. Trial Date
There is a procedure by Special Summons which can be used in certain cases involving Wills, Trusts and non controversial matters. Proceedings involving the Wards of Court Offices are commenced by way of Petition.
There is also a summary procedure used for Debt Collection.
An Injunction is an Order of the Court directing a party to an Action to do, or to refrain from doing, a particular thing. An Injunction is enforced by committal or contempt of Court in respect of any breach. An Injunction is either
(a) Prohibitory (restrictive/preventive), of a wrongful act or
(b) Mandatory – Directing performance of a positive act.
As regards injunctions they can be
(a) Interim (restraining the Defendant until some specified time)
(b) Interlocutory, temporary injunction pending trial of the action.
(c) Perpetual – Permanent Injunction after hearing of the Action.
A Mareva Injunction is a particular type of interim injunction granted on an
ex-parte application i.e. by one party to prevent or restrain some act merely feared or threatened.
To obtain an Interlocutory Injunction the Plaintiff must be able to satisfy the Court.
(a) There is a fair question to be determined at the Trial of the Action.
(b) Damages will not be an adequate remedy for the Plaintiff is he is successful at the trial.
(c) The balance of convenience favours the granting of the Injunction rather than refusing the Injunction.
Any Plaintiff seeking an Injunction will be required to give an Undertaking to Court as to damages by which he will agree to compensate a Defendant who has suffered loss at the consequence of the Injunction if after hearing of the full Action the Court decides the Injunction should not have been given.
Discovery is the exchange of relevant documents in proceedings. When a party is requested to make voluntary Discovery and refuses a Court will on application generally order a Discovery to be made by way of Affidavit sworn by the parties to list all relevant documents.
Irish Litigation is adversarial which means that it is trial orientated.
Most Civil Actions are decided by The Sitting Judge except in the cases of Defamation, Assault and Wrongful Imprisonment Actions.
Successful Plaintiff or Defendant will normally obtain an Order for Costs against the unsuccessful party. Such Orders are however at the discretion of the Judge. A Costs Order allow for recovery of what are called “party and costs only”. Party and Party Costs may not cover the full costs of a Court Action.
In personal injury and contentious business litigation matters a Solicitor may not calculate fees or other charges as a percentage or proportion of any award of settlement.
10. ALTERNATIVE DISPUTE RESOLUTIONS
Where parties have a valid arbitration clause in an Agreement proceedings will be stayed pending the termination of an Arbitration on application to the Court by any of the parties. Arbitration awards can be appealed to the High Court only on grounds of stated mis-conduct to the Arbitrator or on a question of law. Appeals are therefore rare.
11. MEDIATION AND CONCILIATION
Mediation and Conciliation are increasingly used as mechanisms for Commercial Disputes, Building Disputes, Family Law and Probate.