In most cases, the initial stages in a dispute involve the parties/ or their solicitors in correspondence, setting out the alleged claim and seeking remedies or corrective action by consent. In many cases, the matter is resolved without litigation or alternative dispute resolution, where the facts and circumstances make clear that resisting litigation is futile and would increase costs. A settlement may be negotiated.
In many cases, a settlement is negotiated at a much later stage in the proceedings either by reason of brinkmanship or more commonly because the facts become clearer at that stage. Specialist counsel may be involved at that stage and there may be a greater focus on the part of the parties and their advisors. The consequences of a court order and accelerated costs in the event of a hearing may be more pronounced and immediate.
In common with the United Kingdom and partly due to EU initiatives, mediation and alternative dispute resolution are encouraged. The types of alternative dispute resolution are broadly similar to those in England and Wales. Mediation may be undertaken with a view to settlement.
Taking Court Action
Court procedures in Ireland are very similar to those in England and Wales. The system of pleadings whereby issues are defined in written documents comprising a claim, defence and or counterclaim is similar. In the Circuit Court and higher courts, the pleadings are usually drafted by barristers, generally junior counsel.
The most common remedy sought from a court, is an order for payment of damages by way of compensation for the consequence of a breach of contract, civil wrong or other bases of action. Commonly, a mandatory or prohibitory court order, such as an injunction or specific performance or other equitable remedy is sought. The remedies applicable in a legal action are almost identical to those in the United Kingdom and are awarded on almost identical criteria.
The judge may reserve judgement at the end of the case to consider the issues and give a reasoned judgement. This will be accompanied by the appropriate court order in favour of the claimant or respondent The most common remedy is an order for damages.
The next most common remedies are the equitable remedies of specific performance and injunction. A range of other remedies such as an order for an account, an order for enquiries or other steps to be taken before officials in court offices, declarations or tracing.
The means of enforcing judgements are similar to those in England and Wales but have not been the subject of comprehensive reform. In principle, court orders are enforceable against persons personally by attachment and committal for contempt of court. A person may not be committed to prison for failure to pay an order for money which he cannot afford.
Money judgements may be enforced against all classes of assets including against land by registering a judgement mortgage, by seizure of goods by the Sheriff and gainst intangibles including debts and earnings by way of court order against a third party debtor or payer.
The principles of costs are similar to those in England and Wales. Generally, costs follow the event in litigation, so that the losing party almost always pays the winning party’s costs.
There are a number of exceptions such as where lodgments are made and the winning party is not awarded more than the amount lodged. There are other similar principles by which settlements offered can be taken into account in the awarding of costs.
In default of agreement, costs are determined by the Taxing Master. The Taxing Master is soon to be replaced under a reformed system of costs, for which legislation has been passed, but which is not yet initiated.