Parties

Parties to Litigation

The Rules of the Superior Court, Order 15 set out the general rules in relation to the proper parties to litigation.  The parties to litigation are usually the persons with an interest in the subject matter.

It is vitally important that the proper parties are made a party to the litigation.  Generally, it is not possible to litigate on someone else’s behalf.

There exists procedures to join new parties, to strike out existing parties and substitute parties to litigation where necessary.

Minors/Infants

Minors (or “infants”) are persons under the age of 18 years of age.  The rules provide that an infant may sue by his “next friend”.  They provide that he may defend proceedings by his “guardian ad litem” appointed for that purpose.

The next friend of an infant consents to so acting and files the consent in the court office simultaneous with issue of the summons. A person who agrees to act as a next friend must sign a written authority to the solicitor for that purpose. A next friends may be substituted if he dies and in certain other cases, by a one sided application to the court.

Once the minor becomes a full age, the next friend may apply to the High Court registrar to permit the former infant to proceed in his own name. The next friend or guardian may apply to the proper officer in the Central Office, by production of the infant’s birth certificate or such other evidence as the proper officer may require, for an amendment of the title to the proceedings.

A similar procedure applies to guardians ad litem. A solicitor entering in appearance on behalf of a guardian ad litem must swear an affidavit that the person is fit and proper to so act.  A guardian ad litem may be discharged on his application. Persons Lacking Capacity

A Ward of court will generally require authorisation from the President of the High Court to institute litigation.A person of unsound mind may sue by his committee, if so appointed.  Alternatively, he may sue by a next friend if there is no appointed committee.  He may defend proceedings by his committee or guardian in much the same way as minors.

An application for appointment of guardian ad litem is required in the case of a person of unsound mind.  Although not required in respect of an infant, an application is made to the Master of the High Court.

Representatives

Representatives such as trustees, executors and administrators may sue and be sued on behalf of the estate they represent.  The court may order that beneficiaries be added or substituted to the proceedings, as their interests requires.

Where they compromise proceedings and not all parties whose interest are affected, the court may, if satisfied that the compromises for the benefit of the non-parties, approved the compromise where it is unreasonable on the grounds of expense or delaye to bring them in as party.  Where the court so approves it is binding on them,provided that there has been no fraud or nondisclosure of material facts.

Partners

Partners may sue and be sued in the firm name. This appropriate parties are the persons who were partners at the time the relevant claim arose.

There is a method of identifying who the partners are.  A statement of the names of persons who were co-partners at the time may be required to be furnished to the court and verified in such a way as the court directs.  A person sued as a partner may appear in his own name, but subsequently continue proceedings in the name of the firm. Similar rules apply to a person who uses a business or firm name.

Public Rights / Matters

Public rights are enforced by the Attorney General.  Where private person has an interest sufficient to sue in his their own right, he may apply to the Attorney General to join in the proceedings for the purpose of enforcing the public right.  In this case, the matter becomes a “relator” action, in which the Attorney General is the predominant party and retains control of litigation.  The plaintiff, Attorney General must be kept informed of the manner in which proceedings are progressing and must consent to key steps.  The relator party’s solicitor, manages and takes the case, but the relator must agree to pay the cost of the proceedings.

Where any proceedings involve a challenge to the constitutionality of any law, the Attorney General must be made party. Similarly, where an issue arises as to the incompatibility of a statutory provision or rule of law with the European Convention on Human Rights, the party must serve and notify the Attorney General and the Human Rights Commission.

Collective Interests

There is no provision for class action as such in Ireland.  Where numerous persons have the same interest in a particular matter, one or more of them may sue or be sued or be authorised by the court to defend the matter, for the benefit of all interested parties.  The claimant or defendant must be authorised to represent the others.  He must be willing to so act.

It is appropriate that all matters in dispute between parties arising out of the same transaction or series of transactions ( or claimed transactions), should be brought in the same proceedings.  The rules of court allow persons to be joined in an action, as plaintiffs in whom any rights in respect of or arising out of the same transaction or series of transactions is alleged to exist or where if such persons brought separate actions, any common question of law or fact would arise.  The court may order separate trials of proceedings as appropriate, and if  necessary.

Where claims by or against different parties involve or may involve common questions which are sufficiently important relative to the rest of the case, to make it desirable that the whole of the matter should be heard and dealt with at the same time,  the court will allow additional claimants and defendants to be joined.  It is not necessary that each defendant is interested in all of the claims made sought.  The court may make whatever order is necessary to prevent any party from being embarrassed or put to expense by being required to attend proceedings in which he has no interest.

Joinder of Parties

Where a person is unsure as to which of two or more parties, he is entitled to redress against, he may join both or all of them and the matter as to who is liable and in  what proportions, or if at all, is determined by the court.  Where, however, no evidence which would justify liability on the  part of the defendant is found, he is entitled to an order so confirming.

The court has jurisdiction to add, remove or substitute parties to proceedings.  The purpose of the rule is to avoid the hardship of earlier rules which were unduly technical and could lead to the failure of litigation by a failure to join the correct party.This might happen, for example, where the correct defendant was one of the number of group companies.

Similarly, where the proceedings have been commenced in the name of the wrong plaintiff or claimant, another person may be added or substituted provided that there has been a bona fide mistake and the addition or substitution is necessary to determine the real matters in dispute.  However, this power is not permitted to create a wholly new claim.

The proposed defendant should be a party who should (or should allegedly) have been joined or who would necessary as a party to enable the court to effectively and completely adjudicate on all questions involved in the matter.

A person who is joined as a party without his consent may apply to be removed from the proceedings.  A person may not be added as a plaintiff without his consent.

Adding, Substituting and Removing Party

An application to add, substitute or remove a party from proceedings may be taken at any time.  The application can be made during the trial of an action.  It can be made, even when an appeal is taken.  It is brought by way of an application to the court on notice to the existing parties.  It can be made to the Master in some case, An application to remove or strike out a person’s name from proceedings must be made to court.

Where there are additional and substituted parties, the plaintiff must file amended copies of the summons and serve the new defendant with the amended summons in the same manner as the original defendants unless the court has otherwise ordered. The pleadings must be amended as necessary.

An application may be made to the Master by one-sided application where there has been a change in the parties by reason of a transfer of an interest in the matter concerned.  This may arise where new trustees are appointed.  It may occur by reason of a death or other event occurring after the commencement of litigation, which causes a transmission of the interest or liability or by reason of a person having an interest, coming into existence after commencement.

Where it becomes necessary or desirable that a person not already a party should be made a party or that a person be removed as a party, an application can be made for an order to amend the pleadings.

Intervention

In certain types of proceedings, an application may be made by certain persons to allow them intervene in the proceedings.  The primary purpose of the intervention is to enable the interveners assist the court or assert their interests in the matter.

Various rules permit intervention in proceedings, principally in matrimonial, probate, shipping and admiralty matters or claims for land.  The characteristic in each case is that the matters to be adjudicated upon, affect the status of a person or thing that the other parties may have a legitimate interest.

Representatives

In exceptional cases, the court has power to appoint a so-called amicus curiae.  This is a third party to the litigation, who calls the attention of the court to some matters, considerations and  legal principles which may otherwise be overlooked.  The purpose is to assist the determination of the court.

There may be exceptional circumstances, where matters are of such public importance and of general implications, that a representative body may be entitled to appoint an amicus curiae to ensure a person with a  bona fide interest in the issue before the court, is in a position to put forward legal arguments and supporting materials.  This has only occurred in highly exceptional circumstance where matters of public interest are involved.

Generally, parties are entitled to be represented by whomsoever they chose.  Generally, a person may not represent another, unless he is a regulated and practising solicitor or barrister.  Exceptionally, the courts allow a lay litigant to assist in the presentation of court proceedings as so-called “Mc-Kenzie friend”.

Lawyers

Originally, only barristers had rights of audience in the higher courts.  However, solicitors now have rights of audience and may argue cases in all courts.  In practice, almost all High Court cases are argued by a barrister, instructed by a solicitor.  The same is true of the vast majority of Circuit Court cases.  Barristers have effectively retained their specialist role as court advocates.  In the District Courts, cases are usually conducted by solicitors acting  alone withuut a barrister.

A party may change solicitor at any time.  Notes of the change must be filed in the High Court offices.  The notice must be served on the parties.  In other cases, where difficulties arise, such as where solicitor dies, ceases to be qualified or becomes bankrupt, where no notice of change is made, any other party may apply to court for an order that the solicitor has ceased to act.

The solicitor himself may come off record.  He must apply for a court order to permit him to do so.  The court will exercise discretion in the matter. The solicitor makes the application giving notice to the client and the other parties. The application must be based on affidavitt, setting out the basis on which he wishes to come off record.

A barrister may not be directly instructed by a member of the public. He must be instructed by a solicitor, patent or trademark agent.

Litigants may appear on their own behalf.  This does not apply to companies. They must appoint a solicitor.  Where a litigant appears in person, the courts will take this into consideration and will attempt to accommodate the litigant.  The person appearing in person will generally be allowed to greater latitude.

A Mc-Kenzie Friend may be permitted to give advice and assist a lay litigant during proceedings.  He may be any  person attends as a friend of a party. He may take notes and quietly make suggestions and advice.  He cannot demand to take part in the proceedings as an advocate.  His role is limited to assisting the lay litigant.

Multiple Claims and Parties

A claimant may take proceedings against number of distinct parties.  He may choose to have a number of proceedings held together.  The court may order that the proceedings be either held together or may order separate trials. Where a defendant claims that the claimant has united separate claims which cannot be conveniently disposed up together, he may apply to court for an order limiting the proceedings to certain claims or having them heard separately. The court is an element of discretion and will consider the particular circumstances.

The court rules allow a person who is sued to set up a counterclaim or set up against the claim.  The counterclaim need not necessarily relate to the claim as such.  If it is wholly separate then, an application, may be made to have it tried separately.

Where the counterclaim cannot be conveniently disposed of in the relevant proceedings, the courts on the application of the plaintiff, may order that counterclaim should be dealt with in a separate independent action.  The court may make such orders as is appropriate or just.

Where the claimant himself does not seek to unite actions in a single proceeding, another party may apply to court to have the proceedings consolidated.  The same broad principles as above apply.  The courts will consider whether there are common legal and factual issues to be tried.  It will consider whether there will be substantial saving of expense and inconvenience and that there is no likelihood of confusion or miscarriage of justice.

Where there are common factors in proceedings, but they should not be heard together, the courts may arrange to hear them simultaneously or consecutively.  Where there are number of cases raising similar issues, the courts may permit them to be heard in a test case, while other cases are stayed pending the outcome.

Remitting Cases

The High Court has powers to remit cases to the Circuit Court where they are more appropriate to that jurisdiction. Equally, cases may be transferred from the Circuit Court to the High Court where the latter is a more appropriate forum.

Where proceedings are pending in the High Court which could have been commenced in the circuit court any person, party may apply before the commencement of the trial to have the case remitted to the Circuit Court.  The High Court may remit the action as it thinks fit. The case may be transmitted to the Circuit Court or even the District Court.  The court decides the appropriate Circuit or District to which the case should be appropriately remitted.

The courts are not to remit cases, if in all the circumstances and notwithstanding that it could have been commenced in a lower court, it is reasonable that it should be commenced in the High Court.  This may be appropriate if a novel or important point of law are raised.

A claim for a money sum may not be remitted without the plaintiff’s consent unless the defendant satisfies the High Court that he has a good defence or discloses facts which are sufficient to enable him to defend.

For an action for a unfixed sum is transferred to the Circuit Court, that  court has power to award amounts in excess of its normal maximum jurisdiction limit.