Civil Trials

Plenary Trial

A full plenary trial is the norm in civil litigation. A notice of trial is served by the plaintiff, or by the defendant if the plaintiff defaults in so doing. The categories of case in which there is a right to a trial by jury, is relatively narrow,  being now limited to false imprisonment, assault, battery, defamation, malicious prosecution.

A person entitled to a trial by jury may give notice of trial without a jury. In this case, there will be no jury unless another party within 14 days or such further time is allowed, gives notice that he wishes to have the matter heard by a jury.

The notice of trial may be served at the closing of pleadings.  If the plaintiff has not done so, the defendant may apply to the court for liberty to give notice of trial.  If the plaintiff has not given notice of trial within six weeks, the defendant may give notice of trial or apply to dismiss the case.

An action must be set down within 14 days of notice of trial or the notice of trial will cease to have effect in which case, a fresh notice of trial will be required.  Setting down requires delivery of two copies of the pleading, including notice for particulars and replies.

In Chancery and non-jury cases, the matter will be listed in the list to fix dates, once a Certificate of Readiness is filed. Where substantial legal issues are raised which will be argued in the trial, the parties must file and exchange written legal submissions.  They are to encompass the main arguments in the matter. They may be expanded on at trial.

A trial may be adjourned or postponed on such terms if the judge determines.  The judge must ensure that fair procedures are observed.

Where a party does not appear on trial, the claimant may proceed to prove his claim.  If the defendant appears and the plaintiff does not, the defendant may apply to have the matter dismissed or have a counterclaim proved. In each case, the appropriate order may issue in favour of the party who has appeared.

Matters in Dispute

The plenary summons procedure is appropriate to cases where there are disputes as to facts which require resolution at a trial. The trial involves the determination of the facts on the basis of a sworn contested evidence.

The court documents, the Statement of Claim, Defence (and in some cases counterclaim) will show what matters are disputed Before the trial, the parties may agree or admit certain facts which are not seriously disputed. The purpose of the trial should be to concentrate the evidence as to facts that are seriously disputed.

In the vast majority of civil claims, the judge hears the matter. He hears the evidence of both parties and the respective cross-examinations. He decides what the facts are and then applies to law to the facts. Since 1988, there has been a right to a jury in a very limited category of cases only. In these cases, the jury, on the instruction of the judge decides the facts and reaches a verdict.

If, at the end is the claimant\’s case he has not put forward a sufficient proof of all the facts, required to prove his case, the defendant may seek to have the case dismissed without having to call witnesses. If the court refuses such an application, then the defendant must proceed to give evidence.

The Rules of Evidence

The rules of evidence determine how cases are proved in court.  In many cases, there may be disputes as to what was said or what has happened. In other types of case, there may not be a significant dispute as to what happened but matters may turn on the interpretation of documents. There are special court rules adapted to different to the hearing of different types of cases.

Sometimes, there will no be direct evidence of the matters to be proved.  The matters may not lend themselves to direct proof (e.g. as to whether somebody was under duress). In these case, the judge and jury use common sense and their experience to decide as to what are the proper inferences to be drawn. The judge (or the jury) decide on the credibility and reliability of the witness’s evidence. They have the opportunity to observe their demeanour and their reaction to cross-examination.

There are many facts which do not need to be proved because there are notorious or matters of common understanding or human nature.  In this case, the judge can apply his general knowledge.

Evidence sought by question and offered must be relevant and tend to prove questions in issues Otherwise it may be challenged.

Hearings

Where facts are in dispute in a legal claim,  the judge or (in a very small category of cases) the jury, make a decision on the “balance of probabilities”  as to which facts or version of events is more likely to be true. With a full hearing, this process is undertaken on the basis of sworn oral testimony given in court by the claimant and defendant and their respective witnesses.

In some initial stages in legal proceedings and in certain types of disputes (usually ones based on documents), the matter may be decided on the basis of sworn affidavits. However, if there are disputes as to facts,  these types of proceedings can be referred to a full oral hearing.

There are practices and rules which deal with the order and manner in which witnesses are heard by the court.  The claimant’s case is heard first. Generally, the claimant and his other witnesses, give a sworn account of the facts in dispute. This is their oral “evidence”.If evidence is not challenged it may be deemed to be accepted.

Documents may also be proved to the court.  This is claimant’s case. The claimant seeks to persuade or prove to the court that it is legally entitled to a court order against the defendant on the basis of his case.

Presenting Evidence

Under the common law procedure, the plaintiff commences at trial, unless the defendant bears the burden on every issue.  He opens his case to court, calls the witnesses and sums up. If the defendant does not give evidence, the defendant replies.  The defendant opens the case, calls witnesses and sums up and the plaintiff has a right to reply.

There are different (although broadly similar) rules of practice and rules of procedure in the  District Court, Circuit Court and High Court. Order 36, Rule 35 of the Rules of the Superior Court deals with the course of evidence.. The party who commences, or his counsel, may at the close of the case if his opponent announces an intention to adduce evidence, address the jury for the second time, to sum up.

Each party may call witnesses and present other evidence such as documents, where admissible.  This is their respective cases. Generally, each side must present his evidence as a whole.  They are generally not permitted to revisit it once given.  However, exceptionally, a party may apply to give further evidence, if unexpected issues arise, that they are not foreseeable in advance.  This may include factual issues or matters affecting credibility.

Evidence may be given in Irish or in English.  If a person cannot speak Irish or English, evidence may be given through a translator. A person has a right to conduct proceedings in Irish under Constitution, without obstacle or disadvantage relative to a person who uses English.  A person may not, however, be required to conduct proceedings in language which he does not understand.

Claimant\’s Case

The traditional practice is that the case opens with a statement by plaintiff/claimant (or in a criminal case, the prosecution,) through his / its counsel or another representative, on whom the burden of proof lies. He calls his witnesses and elicits their examination in chief.

The opponent’s counsel’s cross-examines the claimant witnesses.  The witness may be re-examined further on behalf of the claimant but only in relation to limited matters arising out of the cross-examination.

At the close of the case for the claimant, the defendant may seek a direction that the case has not been proved and there is an insufficient case to answer. Provided that there is sufficient evidence on which a finding in favour of the claimant could be made, assuming that evidence is not rebutted, the application for “no case to answer” will not succeed.

Defendant

The defendant and his  witnesses may present  sworn oral evidence. The claimant (or prosecution in a criminal case) may cross examine the defendant\’s witnesses. The witness may be re-examined further by the side who called him, but only in relation to limited matters arising out of the cross examiniaiton.

At the end of the trial, the defence may give a closing address.  This may be followed by a closing or replying address by the claimant’s counsel.

If the defendant does not call witnesses, the claimant and the defendant will give closing addresses with a possible additional reply for the claimant.  Where there is a jury, the judge will sum up, review the evidence, give direction regarding the law, evidence, burden of proof and give general guidance.

The defendant seeks to persuade or prove to the court that the claimant is  not entitled to the court order claimed or that he is entitled to different or lesser order, or in some cases, that the defendant it self is entitled to a claim against the claimant or a third party to the proceedings.

Challenging Evidence

During the course of the trial, counsel may interrupt and apply to the judge on the basis that questions are inadmissible or irrelevant.  The judge will generally rule immediately on the submission.  If the evidence is prejudicial in a criminal case, the judge may rule on the admissibility in the absence of the jury  in a  so called voir dire.

Witnesses

The claimant and defendant may themselves be witnesses. They may be the only witnesses. They need not necessarily be witnesses at all. The claimant and defendant may each may compel or persuade other witnesses to attend and give evidence on their behalf. The witnesses must usually have first had knowledge of relevant facts which are in dispute. They must swear as to the truth of what they say. This is their testimony. It is a serious criminal offence knowingly, to  give false evidence.

Where a witness is giving evidence (“being examined”)  by the side who has called him, leading questions may not be asked in respect to disputed matters.  He must describe  his evidence in his own words.  He must give his evidence from his own recollection  naturally. He must not consult notes, save with the consent of the court.

The opposing party may cross examine.  Cross examination seeks to undermine the  veracity, credibility or reliability of the witness’s evidence.  Leading questions (which may be answered yes, no) may be asked.

Each witness is asked questions by the legal representative (of the claimant or defendant) who “called” him as a his witness. These questions are designed to elicit that person’s case. “Leading” questions may not be asked about matters in dispute. The witness should give a narrative of facts or matters which they have observed and which they believe to be true.

The other party’s legal representatives may then challenge the  evidence of the witness’s evidence. He may challenge the accuracy of recollection,  The purpose is to undermine their version of events and to reduce the credibility.  This is cross examination.

After each witness is heard the other party’s legal representative person who put the witness frowns rd can include through  rtheri  representative ask further questions designed to re-establish the matters raised in  cross examination.