Evidence Issues

Admissions I

Any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

Either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such documents shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the Court shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the Taxing Master, a saving of expense.

Any party may, by notice in writing, at any time not later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the Court shall certify that the refusal to admit was reasonable, or unless the Court shall at any time otherwise
or direct.

Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice.

Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just; and provided further that all such costs and expenses as in the opinion of the Taxing Master or the Court have been caused by the omission of any party to serve such notice as aforesaid shall, whatever the result of the cause, matter, or issue, may be, unless the Court shall otherwise order, be paid by the party omitting to serve such notice.

Admissions II

Any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings or otherwise apply to the Court for such judgement or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may upon such application make such order, or give such judgement, as the Court may think just.

An affidavit of the solicitor of the due signature of any admissions made in pursuance of any notice to admit documents or facts shall be sufficient evidence of such admissions if evidence thereof be required.

Notice to produce documents shall be in the prescribed form. An affidavit of the solicitor, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.

If a notice to admit or produce comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.

Witnesses

In the absence of agreement in writing between the solicitors of all parties, and subject to the Rules, witnesses in a trial of the action, or for assessment of damages, are to be examined verbally in open Court.  A court may, at any time for sufficient reason, order that particular facts be proved by affidavit, or that the affidavit of any witness be read at the hearing or trial, on conditions as may be thought reasonable.

The Court may dispense with attendance in Court of a witness for sufficient cause and provide that they be examined by interrogatories or otherwise before a Commissioner or Examiner.  If it appears to the Court that the other party, bona fide, desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the taking of evidence of such witness by affidavit.

An order to read evidence taken in another cause or matter shall not be necessary. The evidence may, save all just exceptions, be read on foot of ex parte application for leave of the Court, to be obtained at the time of making the application and in any other case, upon the party who desires to give such evidence giving two days’ previous notice to the other party of his intention to read such evidence.

Evidence taken subsequently to the hearing or trial of the matter shall be taken as nearly as may be in the same form as evidence taken at or with a view to a trial.

The general practice in relation to examination, cross-examination, and re-examination at trial shall apply to evidence taken at any stage or taken before an officer of Court, subject to such special directions as may be given in any case.

All evidence taken at the hearing or trial of any matter may be used in any subsequent proceedings in the same cause or matter.

Examination Out of Court

The Court may, in any cause or matter where it is necessary, make an order for the examination upon oath before the Court or any officer of the Court, or any other person, at any place of any witness, and may allow the deposition of such witness to be adduced in evidence on such terms as the Court may direct. If the Court shall so order, there shall be issued a request to examine a witness in lieu of commission; a prescribed form shall be used.

Where an order is made for the issue of a request to examine a witness in a foreign country, with which a Convention has been entered, the party obtaining such order shall file an undertaking in the central office in the prescribed form.  It shall be accompanied by

• a request in a prescribed form, with variations as may be directed in the order for its issue,
• together with a translation of such request into the language of the country in which the same is to be executed;
• a copy of the interrogatories if any, to accompany the request and a translation thereof;
• a copy of the cross-interrogatories if any and a translation thereof.

An order for the examination of a witness before the Irish Consular authority in any foreign country with which a Convention in that regard has been made shall be in the prescribed format.

Depositions

Where an order for examination of a person before any officer of Court, or other person appointed is made, the party taking the examination is to be furnished with a copy of the summons, and pleadings, and other documents necessary to inform him of the issues between the parties. The examination shall take place in the presence of the parties, their counsel, solicitors, agents.  Witnesses shall be subject to cross-examination and re-examination.

Depositions before an officer of Court or other person appointed shall be taken down in the presence of the examiner, so as to represent the statement of the witness.  When completed it shall be read over to the witness and signed by him in the presence of the parties or such of them as may think fit to attend.  The examiner may sign the statement if the witness does not do so.

The examiner may put any question to the witness as to the meaning of an answer, or as to any matter arising in the course of the examination.  Questions which may be objected to, shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitor or parties, and refer such statement in the depositions.  He shall not have the power to decide upon the materiality or relevancy of a question.

A person summoned by subpoena to attend for examination shall if he refuses to attend, be sworn or answer a lawful question, may be certified by the examiner and the party may be required to attend on foot of an order made, on ex parte  application or application on notice to be sworn and answer the question.

If a witness shall object to any question which may be put to him before an examiner, the question and the objection, shall be taken down by the examiner, and transmitted to the Central Office.  The Court shall determine the validity of the objection.The Court may order the witness to pay costs occasioned by his refusal or objection.

Where the examination has been concluded, the depositions authenticated by the signature of the examiner, shall be filed in the Central Office. The person undertaking the examination may and shall if necessary make, a special report to the Court touching the examination, the conduct or absence of any witness or other person and the court may direct such proceedings and make such order upon the report as it may think just.

Except where otherwise provided or directed by Court, no deposition shall be given in evidence at trial without the consent of the party against whom the same may be offered unless the Court is satisfied that the deponent is dead, beyond the jurisdiction or unable from sickness or other infirmity to attend the hearing.  In these cases, the deposition certified under the hand of the person making the examination shall be admissible in evidence saving all just exceptions without proof of the signature to such certificate.

Compelling Attendance

The Court may, at any stage of proceedings, order the attendance of any person for the purpose of producing any writing or other document named in the order, as the Court shall think fit to be produced.  No person shall be compelled to produce under such order any writing or other documents which he could not be compelled to produce at the hearing or trial.

A person who willfully disobeys such an order requiring attendance for the purpose of examination or producing a document is deemed guilty of contempt of Court.  A person required to attend for the purpose of being examined, or producing a document, is entitled to the like conduct money and payment for expenses and loss of time as for attendance at a trial in Court.

A party in any cause or matter may by subpoena require the attendance of a witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner, such witness would be bound to attend and be examined at the hearing or trial.  Any party or witness having made an affidavit to be used or which shall be used in any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such officer or person for cross-examination.

SubPoena

Where it is intended to apply for a subpoena, a prescribed form containing the name and firm of the registered place of business of the solicitor applying shall be delivered and filed at the Central Office.  The subpoena is in a prescribed form.

A subpoena other than a subpoena requiring the production of documents may contain up to three names where necessary or required, may contain further names.  No more than three persons shall be included in one subpoena requiring the production of documents.

No subpoena for the production of a record in the custody of an officer of State may be produced, without a Court order.  Such officer having custody of the record shall not be obliged to remove the same under such order from the depository where held, without such order.

An officer of Court required to attend with any record outside of Dublin, shall be entitled to require that the solicitor or party desiring his attendance, deposit with him sufficient money to answer his fees, charges and expenses, in respect of such attendance, and to undertake to pay such further fees, charges, and expenses which may not be fully met by such deposit.

The service of a subpoena is effected by delivering a copy, indorsed with the name and address of the solicitor or party issuing it, and at the same time producing the original. The service of a subpoena is invalid if not made within twelve weeks after its date.

EU Regulation re Taking Evidence

The EU Regulation 1206/2001 facilitates cooperation between the Member States of the European Union in relation to taking evidence in civil and commercial matters.  The Court, where the regulations apply, may on an application of any party, order the issue of a request to a Court of another State to take evidence or to a central body or competent authority directed by the State concerned, to take evidence directly in that State.

Before an order is made, the Court may require a party to file a completed draft form required by the regulations including questions sought to be put to the witness, statement of facts about which the witness is sought to be examined or documents or objects sought to be inspected by the opposing party together with a certified translation thereof into the relevant official any language.

Where an order is made by the Court of its own motion, it may direct the parties or any of them to reimburse any fees or costs provided for in the regulation, pay any advance or deposit referred to.

An application shall be made by a notice of motion granted on the applicant’s affidavit.