Commercial List

Table of Contents

Types of Case

In broad terms, commercial proceedings for the purpose of Commercial Court jurisdiction, relate to certain business-related or certain other disputes, the value of which exceeds €1 million. The classes of commercial proceedings include claims,

a business document, business contract or business dispute where the value of the claim or counterclaim is not less than €1,000,000;
the determination of any question of construction arising in respect of a business document or business contract where the value of the transaction the subject matter thereof is not less than €1,000,000;
the purchase or sale of commodities where the value of the claim or counterclaim is not less than €1,000,000;
the export or import of goods where the value of the claim or counterclaim is not less than €1,000,000;
the carriage of goods by land, sea, air or pipeline where the value of the claim or counterclaim is not less than €1,000,000;
the exploitation of oil or gas reserves or any other natural resource where the value of the claim or counterclaim is not less than €1,000,000;
insurance or re-insurance where the value of the claim or counterclaim is not less than €1,000,000;
the provision of services (not including medical, quasi-medical or dental services or any service provided under a contract of employment) where the value of the claim or counterclaim is not less than €1,000,000;
the operation of markets or exchanges in stocks, shares or other financial or investment instruments, or in commodities where the value of the claim or counterclaim is not less than €1,000,000;
the construction of any vehicle, vessel or aircraft where the value of the claim or counterclaim is not less than €1,000,000;
business agency where the value of the claim or counterclaim is not less than €1,000,000; questions of interpretation and disputes arising out of business documents, business contracts, business disputes, the export or import of goods, the carriage of goods by land, sea and air and provision of services, with a value of at least €1 million.

Certain intellectual property references and appeals and proceedings may be heard by the Court. Proceedings for passing off are included. Applications under the Arbitration Act where the underlying claim is over a €1 million are within the Court\’s jurisdiction.

Appeals and applications for judicial review of a decision or determination made, or a direction given by a body authorised by law to make decisions and determinations, may be admitted where the Judge of the Commercial List considers that the appeal or application is appropriate for entry in the Commercial List having, regard to the commercial or other aspects.

The proceedings must not relate to personal injury. Proceedings in respect of any claim or counterclaim, other than personal injuries may be admitted when the Judge of the Commercial List considers it appropriate for entry on the list.

Application to Enter

An application may be made to the Judge of the Commercial List for entry of proceedings in the list. The application may be made at any time prior to the close of pleadings, in the case of plenary proceedings or completion of the filing of affidavits, in the case of summary proceedings. The application is made by motion on notice to the other party or parties.

The motion must include a certificate by the solicitor to the effect that the proceedings are appropriate to be treated as proceedings under the criteria for entry onto the list. The facts relating to the proceedings must be set out so as to demonstrate that this is the case.

Upon the hearing of the motion, the Judge of the Commercial List may direct that proceedings be entered in the List. In this event, further motions or applications are made to a Judge of the Commercial List.

Directions Hearing

The Judge, where he deems fit, at the initial directions hearing, may hear an application for relief of an interlocutory nature, whether in the nature of an injunction or otherwise.

Where a Judge of the Commercial List directs that proceedings are to be entered in the Commercial List, he is to fix a date for an initial directions hearing or treat the hearing of the motion as the initial directions hearing. The hearing is for the purpose of giving directions and the making of orders as to the preparation of the proceedings for trial, for case management and for other purposes set out in the Rules.

A Judge may, at any time and from time to time, of his own motion and having heard the parties, give such directions and make such orders, including the fixing of time limits, for the conduct of proceedings entered on the Commercial List, as appear convenient for the determination of the proceedings in a just and expeditious manner which is likely to minimise the cost of the proceedings.

Directions I

The Judge may at the initial directions hearing, of his own motion or after hearing the parties, or on the application of a party, give any of the following directions to facilitate the determination of the proceedings in the above manner:

as to whether the proceedings shall continue with pleadings and hearing on oral evidence;
as to whether the proceedings shall continue without pleadings and by means of a statement of issues of law or fact or both law and fact,
as to whether the proceedings shall continue without formal hearing to be heard on affidavit with oral evidence or
without formal pleadings to be heard on affidavit without oral evidence.

Directions may also be made in accordance with the above criteria which

fix any issues of law or fact to be determined in the proceedings;
consolidate proceedings with other causes or matters pending;
define issues by the parties or any of them, including the exchange of memoranda for the purpose of clarifying issues;
allow any party to alter or amend his indorsement or pleadings or allowing amendment of a statement of issues;
requiring delivery of interrogatories or discovery or inspection of documents;
requiring the making of inquiries or taking of accounts;
requiring the filing of lists of documents, either generally or with respect to specific matters;

The directions may direct expert witnesses to consult with each other for the purposes of identifying issues in relation to which they intend to give evidence. They may be directed, where possible, to reach agreement on the evidence they intend to give. It may direct that they consider matters which the Judge directs them to consider. It may require that they record in a memorandum to be jointly submitted to the Registrar and delivered to the parties, particulars of the outcome of their consultations. The outcome is not to be binding on the parties.

Directions II

Directions may provide for the exchange of documents and information between the parties or for transmission by the parties to the Registrar of documents or information electronically on such terms and subject to such conditions as the Judge may direct.

Directions may provide for examination on oath before the Judge, Registrar or other Court Officer or any other person and at any place, of any witness, in accordance with the Rules in respect of depositions and examinations.

Directions may be given as to whether proceedings should, by virtue of their complexity, number of issues or parties, the volume of evidence or other special reason, be subject to case management in accordance with the below provisions.

Adjournment for ADR

On application of any of the parties or of his own motion, the Judge may decide that the proceedings or any issue in them shall be adjourned for such time, not exceeding twenty-eight days, as he considers appropriate to allow the parties to consider whether the proceedings or issues ought to be referred to mediation, conciliation or arbitration. Where the parties decide to refer the proceedings or issue, the Judge may extend time for compliance by any party with the provisions of the Rule or any Court Order.

Notwithstanding that documents or evidence may be privileged from disclosure, the Judge may in order to assist himself in deciding whether or not to make an order or give a direction above may direct the parties, to provide information in respect of the proceedings, including

a list of the persons expected to give evidence;
particulars of any matter of a technical or scientific nature that may be at issue, or may be the subject of evidence;
a reasoned estimate of the time likely to be spent in preparation of the proceedings for trial, and the trial of the proceedings;
particulars of any mediation, conciliation or arbitration arrangements that may be available to the parties.

Written Submission Requirement

The Judge may direct that parties to a motion or application, shall prepare a written submission bearing the name of the author. The submission is to be concise and is to avoid lengthy argument. It is to specify

the nature of the case generally and the background facts insofar as they are relevant to the matter before the court;
submissions of law to be relied on, citing the supporting authorities;
submissions of facts to be made with reference to the evidence.

The written submission shall be lodged with the Registrar at least one clear day before the date of the hearing of the motion or application.

Interrogatories

A party to proceedings in the Commercial List may, after delivering his statement or points of claim or defence or points of defence, deliver interrogatories in writing for examination of the other party. They shall have a note at the end of them, stating which of the interrogatories each of the persons is required to answer. No party shall deliver more than one set of interrogatories to the same party without a further Court order.

Interrogatories which do not relate to matter in questions in the proceedings are deemed irrelevant, notwithstanding that they might be admissible in oral cross-examination of a witness. Interrogatories are to be in a format prescribed by the Superior Court Rules. Answers are to be by affidavit and to be filed within 21 days from receipt or such other time as a Judge may allow. An affidavit and answer to interrogatories are in a prescribed form.

Records

The Registrar is to establish and maintain the following records:

a register of applications for entry on the list;
a register of proceedings entered;
a register of orders and directions made;
a calendar of sittings of Judges;
a record of progress in each of the proceedings entered in the List.

The Registrar\’s List may be held electronically and may be held separately or in amalgamated form.

The Registrar shall establish and maintain a file for each application for entry of proceedings in and for each of the proceedings entered in the Commercial List. The file may be partly or wholly in electronic form. Each application shall be assigned a code or number in sequence for the purposes of identification.

Costs

The costs of the initial directions hearing shall, unless the Judge otherwise directs, be deemed costs in the matter.

The Judge of the Commercial List may prescribe requirements as to the form and content of a bill of costs to be prepared in respect of proceedings on the List. In default of this, the standard form of bill of costs must be prepared.

On the determination of any interlocutory application, the Judge shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.

Electronic Documents

Documents required under the Rules to be served or exchanged in commercial proceedings entered in the List may, where the President of the High Court by practice direction, so permits and on such terms as may be specified and subject to such exceptions, be served and exchanged electronically.

Documents required to be filed in commercial proceedings may, where practice direction permits, be filed electronically with the Registrar and stored in a like manner subject to such terms and conditions and subject to such exceptions as the practice direction may specify.

A practice direction given by the President of the High Court may prescribe requirements in relation to

the hardware and other equipment, diskettes and CD-Roms, communication protocols to be employed by parties filing, serving or exchanging documents electronically;
the use of password, electronic signatures, digital signatures etc. for authenticating documents filed, served and exchanged;
the use of firewalls, anti-virus tools and other applications for the purpose of avoiding damage to the information system of the Courts Service or of any party or their legal representatives;
compliance with practice or protocols for the purpose of ensuring that harmful, deleterious or offensive material does not enter the IT system of the Courts Service or of the parties or their advisers;
formatting, organising, identifying, coding and indexing of documents to be filed, served or exchanged electronically; and
the manner in which documents filed, served or exchanged, may be presented or used in Court.