Commencing Proceedings
Proceedings must be initiated within the period defined by the Statute of Limitations. This is usually done by the issue and in some cases, service either immediately or within a period of issuing a summons (equivalent to a claim form in England and Wales). This particularises the facts alleged and seeks one or more specified remedies.
The defendant may accept the claim in part or deny it in whole. The defence follows shortly after an appearance. The appearance acknowledges service of the initiating document and usually appoints a solicitor to act. The defence may deny the various claims of fact in the initiating document (summons). It may set up other facts which constitute a defence and may also include a counterclaim.
Proceedings Pre-Trial
The principles of discovery and inspection of documents, whereby each party must disclose all documents relevant to the case or his opponent’s case, apply in Ireland, in much the same way as in England and Wales and Northern Ireland. Voluntary discovery is required. A motion may be taken to compel discovery or for better and more particular discovery. Interlocutory/pre-trial applications are usually brought to the Master in the High Court or in the Circuit Court, the County Registrar
Court management and progression meetings which are an integral part of the England and Wales civil procedure rules are now common in almost all types of cases following relatively recent reforms. They seek in the same way to identify issues in dispute, ensure case progression and ensure that the case and ultimately the trial, proceeds in an efficient manner.
Injunctions of various types are issued by the Irish courts on virtually identical principles to those in England and Wales and Northern Ireland. This includes pre-trial injunctions which seek to preserve the status quo, injunctions against the removal of assets from the jurisdiction. Injunctions to preserve evidence may issue in exceptional circumstances, where necessary.
Trial
The ultimate and decisive phase of civil proceedings comprises the trial. This is very similar both in its structure, organisation and rules of evidence to that in England and Wales. Although juries were once common in civil matters, they are now permissible only in a very small number of cases, most importantly in defamation. In all other cases, questions of fact and of law are decided in their entirety by a judge usually sitting alone.
The trial uses the same adversarial procedure that is used in England and Wales. The claimant more commonly called the plaintiff, puts forward his witnesses (commonly including the claimant himself) give their evidence elicited by their barrister/advocate. Increasingly, statements may constitute the witness evidence, which is then subject to cross examination at trial.
The witness is cross-examined by the opponent;s advocate on his so-called evidence in chief or witness statement, with a view to testing the veracity of the evidence, eliciting weaknesses and putting counter facts which are to be later asserted by the opponent’s witnesses. The claimant’s advocate may put further questions, only by way of clarification.
At the end of the claimant’s case, the defendant may apply to the judge to dismiss the claim on the basis that the claimant has failed to establish a sufficient case. More commonly, the case proceeds with the defendant/respondent’s evidence in much the same manner as the claimant’s evidence.
In some cases, there is a right for the parties’ advocates to sum the evidence to the judge or if there is jury, to the jury. In the atypical cases where there is a jury, the judge directs them on the law and they are directed to find the facts based on the evidence as they have heard it at the trial.
Proving Facts
The claimant’s advocate may cross-examine the defendant’s witnesses in the same way as above. The defendant’s/respondent’s advocate may put further questions only by way of clarification without reopening or broadening the scope of evidence given.
The rules of evidence are broadly similar to those in the UK. Some of the traditional exclusionary rules, in particular, the hearsay rule, have not been reformed in the same comprehensive way as in England and Wales. Therefore it is generally the case that witness may not give evidence in relation to matters which are not within his direct knowledge and perception. In practice, the parties advocates may permit hearsay in respect of issues which are not seriously contested.
In accordance with the common system, the primary evidence is verbal given on oath/affirmation subject to cross-examination by the opponent’s advocate. Other evidence may be offered by way of documents and objects. They themselves must be proved in most cases, unless accepted.
Experts commonly give evidence on matters within their knowledge and competence. They may give opinion evidence, unlike an ordinary witness, in relation to such matters. Increasingly in line with recent reforms which reflect England and Wales civil procedure rules, witness evidence may be the subject of reports and directions at pre-trial phase with a view to eliminating any unnecessary conflicts of opinion at trial that can be resolved pre-trial. In some cases, however conflicting opinion evidence may be offered.