All questions

Court procedure

i Overview of limitation periods

The commencement of civil proceedings in the District Court, Circuit Court and High Court is usually preceded by issuing a warning letter to the defendant, setting out the basis of the plaintiff's claim and requiring an admission of liability.

The time limits within which an action can be brought pursuant to the Statute of Limitations 1957 (as amended) are as follows:

  1. actions under contract and tort, and claims for rent arrears: six years from the date on which a cause of action accrues;
  2. actions upon an instrument under seal, and for the recovery of land: 12 years from the date on which the right of action accrues;
  3. actions for personal injuries under negligence, nuisance or breach of duty: two years from the date on which a cause of action accrues or the date the plaintiff first had knowledge, if later;
  4. actions for personal injuries under assault and battery: six years from the date on which a cause of action accrues or the date the plaintiff first had knowledge, if later; and
  5. actions for defamation: one year from the date of publication of the defamatory statement or two years from that date if the court so directs.

ii Procedures and time frames

The procedures and time frames vary across the courts. The general summary below relates to plenary proceedings in the High Court:

Actions are initiated by way of plenary summons, which broadly sets out the plaintiff's claim and the relief being sought. Under the rules introduced in November 2017, a plenary summons may be served on a person by registered post instead of by personal service.

The defendant then enters an appearance to signal a willingness to defend the claim. This also serves to cure any defects in respect of service. Extended time is given to a defendant outside the jurisdiction to enter an appearance. A defendant who wishes to challenge the jurisdiction of the Irish courts to hear and determine the claim files a conditional appearance.

The plaintiff then delivers a statement of claim setting out the nature of the claim.

A notice for particulars is usually raised on this statement of claim seeking more detailed information – by way of replies – on the claim.

The defendant delivers a defence. At this juncture, any application to bring in a third party will usually be made. The plaintiff may deliver a reply to the defence.

The parties will then commence the discovery process, discussed further below.

As part of the discovery process, a party can serve interrogatories on the other party. Interrogatories are formal questions (usually, but not always, admitting of a 'yes or no' answer) that the other party must answer on affidavit. The delivery of interrogatories can reduce the scope of discovery; the number of necessary witnesses; and the time and cost of preparing for and conducting a trial.6

In the event that a party has defaulted in delivering a pleading or adequately dealing with a discovery request, a motion can be brought compelling its delivery or a response, which will have costs consequences for the party in default.

Once discovery has been completed then either party is at liberty to serve the notice of trial.

A typical non-jury case may take at least 12 months to obtain a hearing date.

Cases are usually heard by one judge and without a jury, except for defamation and civil assault claims.

The High Court has increasingly assumed an active case management role,7 which will vary the above time frame. This has been influenced by the success of the Commercial Court, whose main objective is to hear complex commercial disputes as efficiently as possible, pursuant to Order 63A of the RSC. Parties must comply strictly with the time frames set down by the Commercial Court for the exchange of pleadings, witness statements, case summaries, submissions and agreed booklets of documents. Significant cost penalties are imposed on any party that does not comply with the prescribed time frames. It takes on average 12 to18 months from entry into the Commercial Court list to judgment. Therefore, depending on the urgency of the case and the number of issues to be dealt with, it is possible to have cases resolved very quickly.

Injunctive relief is available from the High Court and parties may seek prohibitory or mandatory injunctions. The most common injunctive reliefs are Mareva injunctions (freezing orders), quia timet (to prevent imminent irreparable harm occurring) and Anton Piller orders (search of the other party's premises and the removal of certain identified material).

An application for interim injunctive relief is made on an ex parte basis, and can be brought on an emergency basis. If the interim order is granted, it will generally be for a limited number of days until the interlocutory hearing when the plaintiff will seek a continuation of the order. The defendant must be on notice of this interlocutory hearing.8

iii Class actions

Recourse to class actions is restricted in Irish law. The courts are wary of allowing plaintiffs to represent large bodies of persons who have not consented to such representation lest their constitutional right of access to the courts be frustrated. There are currently two mechanisms available for multi-plaintiff litigation: representative actions and test cases.

Representative actions are permitted by the RSC. Order 15, Rule 9 of the RSC provides that where numerous persons have the same interest in a cause or matter, one or more of those persons may sue or be sued on behalf of or for the benefit of all interested parties. The representative plaintiff must be duly authorised to sue on behalf of each individual party, and evidence of the same must be presented to the court before a representative order will be made. Any decision of the court will, in the absence of fraud or other special circumstance, bind all interested parties to the action. Similar provisions are to be found in the Circuit Court Rules.9 Such actions are a rarity in Irish law.

Test cases may also be brought whereby a small number of cases are selected from a group of cases that arise from the same circumstances. While the results of these cases are not binding on the parties in the other cases unless there is an agreement in place, test cases have a persuasive value under the doctrine of precedent.

The Multi-Party Actions Bill 2017 (2017 Bill) reflects a Law Reform Commission paper from 2005, which recommended the facilitation of multiparty litigation. The 2017 Bill provides for class actions to allow multiple plaintiffs to bring one claim arising from common or related issues of fact or law. If a judge decides that proceedings are to be certified as a multiparty action, they will make an order establishing a register that other relevant parties can apply to join. The costs of a multiparty action will be divided equally among the members of the register who are jointly and severally liable. The government has requested the Working Group on Review of the Administration of Civil Justice to examine the Bill.

Separately, the Data Protection Act 2018 provides for a limited form of representative action whereby a data protection action may be brought on behalf of a data subject by a not-for-profit body, organisation or association.

The Report of the Review Group of the Administration of Civil Justice, published in December 2020, recommended the adoption of a model similar to the Group Litigation Order procedure in England and Wales and it recognised 'a need in due course to legislate discretely for a single representative action procedure encompassing multiple claims to meet the requirements of the proposed EU Directive on representative actions – whether by adapting the existing representative action under Order 15 Rule 9 of the Rules of the Superior Courts for that purpose or by providing separately for such an action'.

Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers entered into force on 24 December 2020, and Member States have 24 months to transpose it into their national laws and an additional six months in which to implement it (i.e., 25 June 2023 at the latest). A representative action may only be brought by a qualified entity.

iv Representation in proceedings

Parties (including natural and legal persons) are usually represented by solicitors and barristers (senior and/or junior counsel). A company must be legally represented and cannot be represented in court by its officers or servants.10 In the Circuit Court the parties will generally only be represented by a solicitor and one junior counsel, whereas in the High Court the parties will also have at least one senior counsel. Alternatively, lay litigants have full rights of audience. In exceptional circumstances, the courts have allowed a lay litigant to be represented by an unqualified advocate but have limited the scope of assistance that can be provided (Re: Applications for Orders in Relation to Costs in Intended Proceedings: Coffey & Ors 11).

v Service out of the jurisdiction

A party seeking to serve Irish proceedings in another EU Member State does not require leave from the Irish courts. However, the service of Irish proceedings in a non-EU Member State requires leave from the Irish courts and certain criteria must be satisfied.

Regulation (EC) No. 1393/2007 and the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention) provide that service will be effected in accordance with the law of the destination country. Where the destination country is not governed either by Regulation (EC) No. 1393/2007 or the Hague Service Convention, service is in accordance with Irish procedural rules.

Where the person to be served is not an Irish citizen or the company is not domiciled in Ireland, a notice of summons and not a summons itself should be served.

vi Enforcement of foreign judgments

Enforcement and recognition of foreign judgments between Member States is governed by the Brussels I Regulation12 and the Recast Regulation.13 The Recast Regulation applies to judgments given in proceedings commenced on or after 10 January 2015.14 The Brussels I Regulation continues to apply to judgments given in proceedings instituted before 10 January 2015.15 The Brussels Convention (which the Brussels I Regulation and the Recast Regulation supersede) still applies to territories in Member States that are excluded from the Brussels I Regulation and the Recast Regulation. The Brussels II Regulation16 (see below) applies in respect of jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (except in Denmark). The Lugano Convention 2007 continues to apply as between Member States and members of the European Free Trade Association.

A parallel method of enforcement of Member State judgments and orders is provided by Regulation (EC) No. 805/2004, which creates a European enforcement order for uncontested claims. This allows a party to have a judgment certified as a European enforcement order in a Member State that is automatically recognised and enforced in another Member State without the need for the judgment creditor to take any intermediate steps. Regulation (EC) No. 861/2007 is relevant to cross-border civil or commercial claims that do not exceed €5,000. Regulation (EC) No. 1896/2006 established the European Order for Payment, which provides for simplified procedures in connection with recovering uncontested (unlimited) money debts.

The procedures for enforcing a Member State judgment in Ireland are set out in Order 42A of the RSC. To enforce a judgment from a non-EU or EFTA country for a liquidated sum, new proceedings for the recovery of a simple contract debt must be commenced in Ireland by way of summary summons pursuant to the Irish common law rules of enforcement. There are a number of prerequisites to be met under Irish common law for enforcement of a non-EU or EFTA judgment: the judgment must be for a definite sum, final and conclusive and given by a court of competent jurisdiction. The Irish court may decline jurisdiction if the plaintiff cannot show that there is a solid practical benefit to enforcement in Ireland (Albaniabeg Ambient Shpk v. Enel SpA and Enelpower SpA 17).

vii Assistance to foreign courts

European Communities (Evidence in Civil or Commercial Matters) Regulations 201318 facilitate the taking of evidence in Ireland at the request of another Member State court. The Circuit Court is the competent court to take evidence in Ireland and the power is exercised by the County Registrar in the county in which the witness resides or carries on business. Where the evidence is to be taken by the Circuit Court, it must do so without delay and within 90 days of receipt of the request. The Courts Service is the central body in Ireland for the purposes of Article 3 and Article 17 of Council Regulation (EC) No. 1206/2001.

On 1 September 2008, the EU Convention on Mutual Assistance in Criminal Matters 2000 was implemented into Irish law by the enactment of the Criminal Justice (Mutual Assistance) Act 2008 (2008 Act). Parts 4 to 6 of the 2008 Act set out provisions in relation to the mutual recognition and enforcement of freezing orders and the taking of evidence and service of proceedings in criminal matters.

The Foreign Tribunals Evidence Act 1856 governs the taking of evidence in Ireland for use by a tribunal or court in a non-EU Member State.

viii Access to court files

The Courts Service website19 records details of parties in dispute and the stage of the pleadings. Copy pleadings are not made available. There is no such search mechanism for the lower courts.

Written judgments made available by the Supreme Court, Court of Appeal, High Court, Circuit Court, District Court, Central Criminal Court, Court of Criminal Appeal and Courts-Martial Appeal Court are available on the Courts Service website.

The decision of the High Court in Allied Irish Bank plc v. Tracey (No. 2) 20 addressed the issue of a non-party's entitlement to court documents. Mr Justice Hogan held that a non-party was entitled to have access to the affidavits filed by a party that were opened in open court without restriction. This High Court decision only extends to documents opened in open court without restriction and does not apply to documents filed but not opened in court.21

Order 123 of the Rules of the Superior Courts (Recording of Proceedings) provides for the procedure regulating applications for access to a record of court proceedings (i.e., a transcript). Rule 9 states that any party or person who seeks access to a record of proceedings may apply to the court by motion on notice to the other party or the parties to those proceedings, grounded on affidavit. The court may, where it considers it necessary in the interests of justice so to do, permit the applicant to have such access to all or such part of the relevant record.

Members of the public may attend all court hearings, except in camera proceedings,22 which generally relate to family law matters, those involving minors or certain proceedings brought under data protection legislation.

New court rules that were introduced on 1 August 2018 give bona fide members of the media a specific right to access documents referred to in open court. Bona fide members of the media may request that information contained in a court record be disclosed to them. They may inspect the document under the supervision of an officer of the court or Courts Service personnel; take a copy of the document forming part of the court record on the undertaking that they will return the copy on completion of the media report; or be given a press release or other information in oral or written form by an officer of the court or by the Courts Service personnel concerning the proceedings.

ix Litigation funding

The decision of the Supreme Court in Persona Digital Telephony Ltd v. Minister for Public Enterprise, Ireland and the Attorney General 23 confirmed that maintenance and champerty were still prohibited under Irish law. Maintenance is where an individual, without a legitimate interest, funds the litigation of another. Champerty is a subset of maintenance and arises where an individual provides maintenance in return for a share of the proceeds.

The only form of third-party funding that is acceptable in Ireland is that provided by a third party that has a legitimate interest in the outcome of the litigation. The High Court in Thema International Fund plc v. HSBC Institutional Trust Services (Ireland) Limited & Ors 24 (referring to its decision in Moorview Developments Limited v. First Active plc 25) implied that bona fide creditors and shareholders may fund legal actions on the basis that then they are funding a company in which they have a legitimate interest in the hope that the company will be able to pay them the monies due (creditors) or dividends or capital distributions (shareholders).26

Where a third-party funder has funded litigation on behalf of an impecunious party, the Irish courts have jurisdiction to make an order for costs against that third party.27

The Irish courts have determined that after-the-event insurance does not breach the rules on maintenance and champerty in certain circumstances.28

The Supreme Court in SPV Osus Limited v. HSBC Institutional Trust Services (Ireland) Limited & Ors 29 found that the assignment of a right to litigate to an unconnected third party with no legitimate interest in the litigation was trafficking in litigation and was contrary to Irish public policy. The Supreme Court applied the test adopted by the House of Lords in Trendtex Trading Corporation v. Credit Suisse 30 that an assignment of the right to litigate is unenforceable unless the assignee had a genuine commercial interest in the assignment.

x Costs

In terms of payment of costs, although the courts have discretion as to how costs are to be awarded following the hearing, the general rule is that costs follow the event, namely that the unsuccessful party will pay the costs of the successful party. Costs are usually awarded on a party and party basis, which means that costs reasonably incurred by the successful party in prosecuting or defending an action are recoverable.

Where a defendant has reason to believe that the plaintiff will be unable to pay its costs if the plaintiff loses the case, the defendant may seek an order for security for costs. This is a court order requiring the plaintiff to provide security (for example, cash lodged in court or a bond) to meet the legal costs that the defendant is likely to incur in defending the case.31