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11 November 2013
The Commercial Division of the Irish High Court, known as the Commercial Court, opened for business on 12 January 2004 and is already having a significant impact on the resolution of commercial disputes. Proceedings are being actively case-managed, pleadings are much more precise and witness statements and experts' reports are required to be exchanged prior to hearing, all resulting in the parties being better prepared for trial. The Commercial Court experience has been wholly positive and cases that historically might have taken two years to get to full trial are now being disposed of in two months. The court takes on board many of the positive aspects of the UK's Civil Procedure Rules, with a pragmatic approach to dispute resolution, encouraging mediation and penalising legal teams for delays.
The Commercial Court was introduced into the Irish legal system last year with the primary objective of dealing with Ireland's large commercial disputes in a fast and efficient way. The rules of the Commercial Court prescribe the types of cases that can be heard. Generally cases have to involve disputes where more than e1m (£680,000) is at stake. However, this threshold does not apply for judicial review cases, nor does it apply for cases involving intellectual property (IP) rights. The court has a general discretion to accept or refuse entry, even if the rules' criteria are met. Application for entry can be made by any party (including a notice party) and should be made at the earliest possible opportunity, adjoined to detailed affidavits. Only proceedings initiated after 12 January 2004 are eligible, so any large cases that are currently ongoing but commenced prior to this date must continue through the general High Court process. Approximately 55 applications to enter the commercial list were received in the first year of operation.
Whereas most applications for entry are successful, one case that was refused entry concerned a lay litigant seeking judicial review of the decision of a local authority to grant planning permission. Despite the fact that it was a judicial review case, the applicant resisted the authority's request for entry on the basis that neither of the parties could be described as commercial entities, and the procedures in the Commercial Court - which require an intensive level of preparation quite different from the High Court proper - would be oppressive for a lay litigant. The judge accepted this argument and the case went forward in the usual High Court process. This is a good example of the court exercising its discretion to refuse entry, even where the criteria in the rules were met.
Generally speaking however, entry into the Commercial Court list is a fairly straightforward matter when the amounts in dispute are more than e1m. It has also proven to be very accessible when relying on its other jurisdictions, such as judicial review and IP. In the first judicial review proceedings heard and determined by the Commercial Court, in late 2004, the applicant sought to judicially review the decision of a local authority to grant planning permission to the applicant, a lay litigant, joined as a notice party in the proceedings. The time period from the date of commercial list entry to the date on which the judicial review proceedings were dismissed was nine weeks, to include ensuring that the Commercial Court denied the necessary leave to appeal.
The Commercial Court has proven to be a very attractive forum for resolving IP disputes. The judges appointed to the Commercial Court have a keen interest in IP, and this has been key to its success in this area. In relation to interlocutory applications, a practice has developed whereby costs have been awarded at the interlocutory stage - a very powerful mechanism in the fight against IP infringers. Given the speed with which cases are dealt with in the Commercial Court, and the fact that IP disputes are often multijurisdictional, this has enabled clients to strategically choose Ireland as the jurisdiction in which to litigate, based on the likely completion dates for trial and the opportunities to have cases dealt with on a preliminary issue basis.
It must be said that a large amount of work has to be done at a much earlier stage than is normal. It is imperative that detailed affidavits are sworn grounding the application for entry to the commercial list, and the case management timetable laid down will be tight and require a high level of input from both the lawyers and the parties. Mediation can be recommended by the Commercial Court but cannot be imposed. Cost orders are made for failure to comply with time limits, and some onerous fines have already been imposed for default.
Unfortunately, the fast track nature of the Commercial Court stops there and its expedited procedures do not apply if cases are appealed from the Commercial Court to the court of appeal. It still takes on average six to nine months to secure a hearing in the Supreme Court. The calibre of the judges assigned to the Commercial Court is extremely high, which has contributed significantly to its success. Mr Justice Peter Kelly and Ms Justice Mary Finlay Geoghegan are very experienced chancery judges with wide-ranging expertise. To date their workload and commitment has been such that early hearing dates can be assigned, and judgments have normally been delivered within two to three weeks of the hearing. In the normal High Court, months can often elapse between the date of hearing and the delivery of a reserved judgment. The early delivery of judgments is certainly one of the most positive aspects of the new Commercial Court and provides real benefit to litigants.
From a practical perspective, the judges in the Commercial Court will generally have read all of the papers beforehand, including any legal submissions, witness statements and experts' reports, so that the hearing itself is often confined to cross-examination of witnesses and delivery of legal argument. The arrival of the Commercial Court is the most exciting development for commercial litigation in Ireland in a very long time.
Alison Fanagan is a litigation partner and John Whelan an IP/IT partner at A&L Goodbody