Trial Management

Place, mode and sequence of trial

The Court may in any cause or matter, at any time or from time to time order:

• that different questions of fact arising therein be tried by different modes of trial;
• that one or more questions of fact be tried before the others;
• that one or more issues of fact be tried before any other or others.

The Judge chairing any case management conference or pre-trial conference  or the trial Judge may in any cause or matter  which is listed for trial in the Commercial List or which is required to be heard in the Competition List, or in Case Management Conference may make an order:

• directing that the trial be conducted in particular stages (in this rule, “modules”) and determining the questions, issues or set of questions or issues of fact, or of fact and law, to be the subject of each or any module, and the sequence in which particular modules shall be tried;
• specifying the nature of the evidence, or the witnesses, including expert witnesses, required to enable the Court to determine the questions or issues arising in each or any module;
• directing the exchange and filing in Court, either in advance of each or any module or following the conclusion of the module concerned, of written submissions on the questions or issues of law arising in that module.

Where a trial is being conducted in accordance with an order so made ), the provisions of the Rules which relate to management of time at trial, expert evidence and preparation for trial, unless the Judge otherwise orders, apply to each module as if it were a separate trial

Trials with assessors

The Court may, on the application of a party or of its own motion and having heard the parties, appoint a person to assist the court in understanding or clarifying a matter, or evidence in relation to a matter, in respect of which that person (in this rule referred to as an “assessor”) has skill and experience. Trials with assessors appointed shall take place in such manner and upon such terms as the Court shall direct.

The Court may appoint an assessor nominated by the parties or nominated by the Court (having heard the parties), and on such terms as to the payment of the fees of the assessor and otherwise as the Court may direct.

The fees to be paid to an assessor shall be determined by the Court, having heard the parties, in such amount or by such measure as the Court considers reasonable, and shall form part of the costs of the proceedings. The Court may order any party:

• to pay to the assessor, or
• to deposit with the Accountant on account of fees to become payable to the assessor,

a specified sum in respect of or on account of an assessor’s fees and, where the Court so orders, the assessor shall not be required to act until the said sum has been paid or, as the case may be, deposited.

An assessor a shall take such part in the proceedings as the Court may direct and in particular the Court may direct an assessor to—

• prepare a report for the Court on any matter at issue in the proceedings; and
• attend the whole or any part of the trial to advise the Court on any such matter and be available thereafter to assist the Court as aforesaid.

Where an assessor prepares a report for the Court before the trial has begun—

• the Court shall cause a copy of the report to be sent to each of the parties; and
• any party may use that report at the trial.

Where an assessor provides advice or other information to the Court, the Court shall inform the parties of such advice or information and afford each of them an opportunity to make submissions in respect of it.

Management of time at trial

The Court or an officer of the Court may require any party to proceedings to provide a reasoned estimate of the time likely to be spent in the trial of the proceedings, including a list of the witnesses intended to be called by that party and an estimated time for the examination or cross-examination (as the case may be) of each witness intended to be called by that party or by any other party.

The trial of proceedings shall, as regards the time available for any step or element, be under the control and management of the trial Judge, and the trial Judge may, from time to time, make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the interests of justice.

The trial Judge may:

• having regard to the period of time fixed for the trial, and
• having considered any materials (including any reports and summaries or statements of the evidence of any witnesses) delivered to him or her in advance of the trial in accordance with any provision of these Rules or any order or direction of the Court, and
• having heard the parties,

make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the requirements of justice.

Time Management Orders and Directions

They may include orders fixing or limiting the amount of time allowed to each party for opening and closing the case (including the making of oral submissions on points or issues of law) and for examining and cross-examining each witness, which may include an order allowing each party an amount of time (out of the total time set aside for the trial of the proceedings) for its presentation of its case, which may be used in opening the case, in closing the case, in examining in chief or in re-examining any witness called by that party, and in cross-examining any witnesses called by any other party, and

The may include directions  as to

• the issues on which the Court requires evidence;
• as to the nature of the evidence required to enable such issues to be determined;
•  as to the manner in which such evidence is to be put before the Court; where written submissions on points or issues of law have been lodged in advance of the trial,
• as to whether the Judge shall require any oral submissions on points or issues of law in addition to those written submissions, or requiring the parties or any party at any stage of the trial to identify the issues which arise or remain for determination by the Court and the questions which the Court is required to decide in order to determine each such issue.

For the purposes of considering the making of an order  or otherwise, the trial Judge may require counsel for each party (or a party, if appearing in person) to indicate how much time is required by that party to be taken in the examination or cross-examination of each witness, or in any other step in the trial.

The trial Judge may, having regard to any order or direction, allow the time proposed by any party, or may allow such other period of time as the Court considers is consistent with the efficient conduct of the trial and with the requirements of justice.

Time Management; Witnesses

The re-examination of witnesses shall be limited to new matters that were raised for the first time on cross-examination and shall be concise.

A party shall avoid duplicating the same evidence by different witnesses, save where such duplication is necessary for the just determination of the proceedings.

Without prejudice to any other powers conferred on the Court , in any case in which the Court is satisfied that the evidence of a witness called by a party was (in whole or in part)  unnecessary for the determination of any question or issue arising in the proceedings, or merely duplicative of the evidence given by another witness called by that party, the Court may:

• make an order disallowing (in whole or in part) recovery by a party of the expenses of the witness concerned or the costs occasioned by calling the evidence of the witness concerned, or
• order the payment by that party (in whole or in part) of the costs occasioned to any other party by the calling of the witness concerned, provided that no such order shall be made where the Court is satisfied that any duplication of evidence was necessary for the just determination of the proceedings.

Evidence by video link or other means

Where the Court directs in accordance with the Civil Law (Miscellaneous Provisions) Act  that a party may participate in the trial of proceedings, or that a witness may give evidence, whether from within or outside the State, through a live video link or by other means, the Court shall give such further directions as to the participation or evidence as are necessary for the efficient conduct of the trial consistently with the requirements of justice.

Evidence given shall be recorded electronically or otherwise as the Court directs.

Special Case I

The parties in a matter may agree to state questions of law arising in it in the form of a special case for the opinion of the Court.  Every special case shall be divided into paragraphs, numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised.

Upon the argument of such case, the Court and the party shall be at liberty to refer to the whole contents of the documents.  The Court shall be at liberty to draw from the facts and documents stated in any special case any inference, whether of fact or law, as might be drawn therefrom if proved at a trial.

If it appears to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to an arbitrator, the Court shall make an order accordingly, and may direct the question of law to be raised for the opinion of the Court.  This may be done by a special case or in such other manner as the Court may deem expedient.  All further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

Special Case II

Every special case shall be printed by the claimant and signed by the parties or their counsel, and shall be filed by the claimant. No special case in any cause to which a party is an infant, or person of unsound mind, shall be set down without leave of Court.

Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in a prescribed form.

The parties to a special case may, if they think fit, enter an agreement in writing, that on the judgment of the Court being given in the affirmative or negative of the questions of law raised, a sum of money, fixed by the parties are to be ascertained by the Court or in such manner as the Court may direct, shall be paid by one to the other, either with or without cost.  The judgment of the Court may be executed forthwith, unless otherwise agreed, or unless stayed on appeal.

The order shall apply to every special case stated in a cause or matter, and to any special case stated for the opinion of the Court in pursuance of any statute related to the Revenue insofar not consistent with the statute.

Special Case III

Where the parties to a case are agreed as to the matter of facts to be decided between them, they may, after issue of the summons and before judgment, by consent and order of the Court, proceed to the trial on any such questions of fact without formal pleadings.  Such questions may be stated for trial in a prescribed form.  Such issue may be entered before trial and tried in the same manner as an issue joined in an ordinary action.  The proceedings shall be under the control and jurisdiction of the Court, in the same way as proceedings in an action.

The parties may by consent that the court, on finding in the affirmative or negative on such issue, order that a sum of money, fixed by the parties or ascertained upon a question inserted in the issue for that purpose, shall be paid by one to the other with or without costs.

On the finding of any issue above, judgment may be entered for the sum so agreed or ascertained, with or without costs.  Execution may issue upon such judgment immediately, unless otherwise agreed, or unless the Court shall order a stay of execution with a view to an appeal.

Proceedings on an issue above may be recorded at the instance of either party and judgment, whether recorded or not, shall have the same effect as any other judgment in a contested action.

Mediation

The High Court on the application of any party or of its own motion, may when it considers it appropriate having regard to the circumstances of the case order that proceedings or any issue therein, be adjourned for such time as the Court considers just and convenient may invite the parties to use an ADR process or settle or determine the proceedings or issue.  Where the party consent, it may refer the proceedings to such process.

An ADR process means mediation conciliation or other dispute resolution process approved by the Court.  It does not include arbitration.

Where the parties decide to use an ADR process, the Court may make an order extending the time for compliance by any party with any provisions of the rules.  It may make such further or other orders and give such directions as the Court considers in order to facilitate the effective use of that process.