Evidence Evidence is that which tends to prove or disprove the facts in dispute. Evidence must be relevant to the questions in issue. It must be relevant as a matter of fact and common sense and must not be inadmissible at law. There may be direct eyewitness evidence of the matters in dispute in many […]
Plenary Trial A full plenary trial is the norm in civil litigation. A notice of trial is served by the plaintiff, or by the defendant if the plaintiff defaults in so doing. The categories of case in which there is a right to a trial by jury, is relatively narrow, being now limited to false imprisonment, […]
Legal Professional Privileges Legal professional privilege is designed to protect frank communications between lawyers and their clients. Without privilege, a lawyer could not be properly instructed as the client would not be in a position to communicate with him, freely. He should be in a position to discuss his case fully and openly, weaknesses and […]
Effect of Privilege The effect of privilege is that a person may decline to answer certain questions as a witness or produce documents in discovery, even if they are relevant or would be otherwise admissible. Most examples of privilege operate absolutely. They are not a matter of discretion on the part of the judge. Privilege […]
Competence and Compellability Generally, any person is competent to give evidence provided he has the ability to give an intelligible account of the matters concerned. Historically, the test of competence was whether the witness was in a position to understand the nature and consequences of the oath. A challenge may be made to the competence of […]
Oral Trial the Norm The rules of court provide that in the absence of an agreement to the contrary, the general rule is that witnesses in court proceedings, are to give evidence court orally. The courts place a high value on the trial with verbal testimony and cross-examination, which gives the court (or jury) the […]
Admissions I A major exception to the hearsay rule is that a statement made against the maker ’s interest is admissible, even if it is hearsay. The reason is that it is presumed that a person will not have a motive to make a false statement against his own personal or financial interests In civil […]
Opinion Evidence & Experts Generally, witnesses are not entitled to give evidence in relation to matters which are not within their direct knowledge. They are not entitled to give opinions on facts or draw inferences from them. In principle, this is a matter for the judge or where there is a jury, the jury as […]
Judicial Notice Certain facts may be proved without bringing forward verbal evidence. Judges take so-called “judicial notice” of certain facts which are so notorious or established that they do not require proof. In the case of judicial notice, the judge may decide the matter with reference to his own knowledge or with reference to sources […]
Hearsay Evidence Rule The most famous rule of evidence is that prohibiting hearsay. Hearsay is a statement made otherwise than in court, which is offered as evidence of the truth of its contents. In the narrow and commonly understood sense, a witness may not generally relay that which another person said on another occasion as […]
General On any petition, motion or application evidence may be given by affidavit. The court may order the production for cross-examination, of the person making any such affidavit. All affidavits shall be filed in the central office. Those used in minor and wards of court matters are filed in the Wards of Court office. Affidavits […]
General Statutory declarations are used for the proof of facts in non-contentious (non-litigation) matters. Statutes commonly require matters to be proved by way of statutory declaration. Legal practice, particularly in conveyancing and commercial transactions and matters, often requires proof of relevant facts and matters by way of a statutory declaration. A statutory declaration may be […]
Paul McMahon ADR (Arbitration)
Nature of Arbitration The essence of arbitration is that a third party private person adjudicates on the dispute. If differs from other types of arrangements such as mediation, expert determination, etc. In some cases, disputes must be referred to expert determination before arbitration may proceed. Arbitration may deal only with certain types of private civil […]
Paul McMahon ADR (Arbitration)
Commencement of Arbitration Arbitration must be commenced within the time limits for commencement of litigation. Generally, a breach of contract claim must be commenced within six years of the date of the breach. See the chapter on the Statute of Limitations. Sometimes, shorter time limits are provided by the contract concerned. These time limits will […]
Paul McMahon ADR (Arbitration)
Pre-Hearing It is possible to make applications to the arbitrator, in the pre-hearing phase of an arbitration. This is analogous to pre-trial applications in court proceedings. The purpose is usually to assist in the preparation and correct formulation of the case. The arbitrator may make interim awards dealing with preliminary and preparatory matters. He may […]
Overview Mediation has been defined as a flexible process, conducted confidentiality, in which a neutral person activity assists the parties in working towards a negotiated agreement of a dispute or difference. The mediator seeks to assist both sides in coming to an agreed settlement. The parties are in ultimate control of the decision to settle […]
General There is no comprehensive statute dealing with mediation in Ireland at present. Mediation arrangements may be embodied in a contract between the parties. It is possible for a contract to provide for mediation before the dispute develops. Mediation agreements are most commonly entered after the dispute has arisen. Mediation bodies may provide a model […]
Overview Conciliation is a voluntary process in which a third party facilitates negotiation between parties in dispute. The procedure is similar to mediation. However, the conciliator’s role is more active. The conciliator may give an opinion on the merits of the dispute and suggest a solution if the parties cannot put forward proposals themselves to […]
General Expert determination involves the appointment of an independent expert to make a decision or determination of particular issues, which is binding on the parties to the agreement. It differs from arbitration, in that the expert does not act in a quasi-judicial manner. He can and should draw on his own expertise in the field. […]
Paul McMahon ADR (Arbitration)
Arbitration Agreements At common law, an agreement to submit a dispute to arbitration might be written or oral. Prior to arbitration legislation, arbitration agreements were referred to as submissions. At common law, the submission could be oral. A submission required an existing dispute and nomination of the arbitrator. The authority of the arbitrator might be […]
Paul McMahon ADR (Arbitration)
“Commercial” Disputes Commercial disputes cover a range of legal areas where the dispute is between businesses. The common feature is that the parties to the dispute are not consumers and act in the course of a trade, business or profession. The UNCITRAL Model Law on arbitration provides that the term “commercial” should be given a […]
Paul McMahon ADR (Arbitration)
Features In broad terms, international arbitration refers to arbitration involving parties, who are in different States, arbitration held or relating to matters outside the jurisdiction of one or both parties and arbitrations agreed to have an international element. International arbitration is commonly encountered in construction, engineering, energy, transport and shipping. It is also commonly found […]
