Commercial Litigation in the Republic of Ireland was revolutionised by the introduction, on 12 January 2004, of the Commercial Court. The inception of this Court stemmed from a recognition that existing High Court procedures were slow and inefficient and that there was a financial imperative for the State in establishing a commercially focused Court. The Commercial Court, which has been in existence for approximately four and a half years, now provides Irish commercial litigators with a highly efficient and effective commercial dispute resolution system which sees disputes concluded, on average, within 21 weeks.[1] Such unprecedented timeframes have seen a number of international entities looking to establish Irish operations in order to avail themselves of the Irish Legal System, which in turn has knock-on benefits for the Exchequer in terms of inward investment.
In practical terms, the Court operates through a formal listing system, with disputes being obliged to fall into one or more prescribed categories of “commercial proceedings” to gain admission to the List. These eleven categories are set out in the Commercial Court Rules, and are defined by reference to different types of commercial disputes, with a minimum claim value of €1,000,000.00. The Court has, however, retained a discretion to admit complex commercial disputes which do not meet the €1,000,000.00 threshold. Furthermore, there is an acceptance that not all commercial disputes can be readily quantified and, on that basis, provision is made, for example, for all intellectual property disputes to be admitted. The impact of this approach is that IP rights can now be defended in this jurisdiction in an easier and far more cost efficient manner than in other jurisdictions.
Although the Commercial Court has not yet reached its fifth birthday, it has already recognised a need to evolve so as to reflect the changing demands of the commercial world. This is particularly apparent in the recent introduction (March 2008) of an additional category to the Commercial Court Rules which allows for worldwide disputes against the International Registry of Mobile Assets (being a registry that was established pursuant to the Capetown Convention relating to aircraft and aircraft components), to be litigated before the Irish Commercial Court. These are disputes, which are, by definition, high value and require speedy resolution and, as such, it was recognised that the appropriate forum for disputes of this nature would be the Commercial Court.
The arrival of the Commercial Court brought with it a number of new and previously unavailable procedures for practitioners in this jurisdiction. The Commercial Court Rules provide for active Court lead case management, meetings of experts, exchange of witness statements and a document management regime.
The Court is also keen to reflect the growing use, both nationally and internationally, of mediation to resolve commercial disputes. The Commercial Court Rules provide for a stay to be put on commercial proceedings for a period of 28 days to allow mediation, conciliation or arbitration to take place. This particular facility has resulted in a significant number of cases either being resolved at mediation or being settled shortly thereafter, thus resolving disputes quicker and at less cost.
The Commercial Court has not only brought procedural benefits but also practical benefits for commercial litigators in the area of general practice management. Practitioners are now in a position to confidently assure clients of a speedy resolution of their claims once the dispute has been admitted to the Commercial Court. Commercial Court proceedings cannot, however, be entered into lightly either by the practitioner or by the client. All involved must be very aware of the demands of litigating in the Commercial Court and, in particular, the fact that the Commercial Court’s efficiency is derived from focused pleadings and short and strictly enforced deadlines with its consequent demands on practitioners and their clients. Furthermore, the costs of litigating before the Commercial Court are not insignificant (although, on average, they are no greater than the costs incurred over a longer time period in similar disputes that would previously have been resolved in other divisions of the High Court). Additionally, litigating before the Commercial Court often gives rise to potentially far greater publicity which may or may not be welcomed by clients.
The speed and efficiency of the Commercial Court implies that it is not a forum which suits all disputes. It is not for those litigants who wish to take a slower (some might say, less aggressive) approach to commercial litigation. Careful consideration must be given to the needs and objectives of the client before applying to have a case admitted to the Commercial Court List. Admission to the List is not automatic, but even reluctant parties can be catapulted into a Commercial Court procedure by application being made by another party to the dispute.
The establishment and subsequent success of the Commercial Court has not only promoted dispute resolution in Ireland but also outside this jurisdiction. The attraction of Ireland as a centre for international dispute resolution was further enhanced by a recent High Court Judgment of Mr Justice Clarke on the issue of forum shopping. This case, which involved an Irish life insurance company, Life Receivables, established that the Irish Court had jurisdiction to hear proceedings even where similar proceedings had been initiated in a jurisdiction outside the EU. Previously, it was accepted that Courts within the EU would have to wait until other international proceedings were completed before they could deal with those proceedings at all. However, Clarke J held that where there was an Irish party involved, the Irish Courts still had jurisdiction where proceedings were taken outside of the EU. This case, which is currently under Appeal to the Supreme Court, if upheld, will have a profound effect on international disputes with litigants now being primarily concerned with obtaining judgment first rather than being first to issue proceedings--and where better to seek a speedy judgment than the Irish Commercial Court?
The arrival of the Commercial Court has brought new life to the practice of commercial litigation in this jurisdiction. Clients are happy because their disputes are resolved quickly and practitioners are happy because their clients are happy.
____________________
Noreen Howard
Stuart Margetson
Matheson Ormsby Prentice
Dublin, Ireland
Tel. + 353 1 2322000
Fax. + 353 1 2323333
www.mop.ie
noreen.howard@mop.ie
stuart.margetson@mop.ie
