Procedure & Evidence

Courts apply their own procedural and evidence rules.  This includes rules relating to the course of court proceedings and methods of execution. Courts may apply the foreign substantive law of another jurisdiction.  However, they will apply their own procedural rules.

The principle that the domestic law applies procedural matters, is a practical necessity.   Although a court may hear of evidence of foreign law and apply it, it cannot as a practical matter ,y apply another jurisdiction\’s procedural rule.

Issues may arise as to what is categorised as procedural or substantive. For example, the statute of limitations is traditionally categorised as a procedural matter in Ireland and the UK.  This arises from the fact that the statute of limitations is not a substantive rule but is a procedural bar to proceedings.

However, the Brussels Regulations and Rome and Rome II Conventions treat it as a substantive rule. Where the rules extinguish rights as a matters of substance, this is treated as the equivalent of a substantive rule, the context of conflicts of law.

Matters of interpretation arise as to the boundary between substantive and procedural rules. Traditionally many common law rules which have become substantive rules originated as procedural devices.

Certain rules of evidence are in effect substantial.  For example, the rule res ipsa loquitur, the matter speaks for itself, applies to the burdens of proof. However, although technically procedural, it may  have a substantive effect.  There is significant support for the proposition that it is substantive, in this context.

There is a distinction between evidence which seeks to interpret a document and evidence that seeks to vary or contradict it.  The former is governed by the relevant law of  the transaction.  The latter is procedural and domestic law applies.

The requirement that  a contract be evidenced in writing is technically a procedural matter  under the Statutes. However, in this context,  it is treated as substantive rather than procedural.

The rules of evidence are procedural.  Questions as to the admissibility of evidence are determined by the domestic law.  Evidence may be allowed, that would be inadmissible under the law of the jurisdiction of the foreign law which apply.

The rule is not strict.  Where compliance with domestic rules of  evidence is  impractical given the manner of proof of particular matters the domestic court may be prepared to bend and waive its own rules.

The burden of proof is a matter to be determined by domestic law.  Generally, the common law requires proof of a claim in a civil case, on the balance of probabilities.

Presumptions arise in the law of evidence. A presumption of fact is a presumed fact,  which arises from proof of another fact.  Most such are logical propositions which can be contradicted by evidence to the contrary.  Accordingly they do not raise significant issues.

There are rebuttable and irrebuttable presumptions of law.  These include, for example, the presumption that a child under seven does not have criminal capacity.  Irrebuttable presumptions are effectively substantive rules for the purpose of conflicts of law.

The more difficult position arises in relation to rebuttable presumptions of law.  These include, for example, that presumption of death where a person has not been heard of for seven years the presumption of legitimacy and the presumption of resulting trusts.

The courts have taken a variety of approaches to such presumptions. The solution they adopt depends on the particular category of presumption involved.  Some presumptions are treated as matters of substantive law.

The procedure in the trial is determined by domestic law.  The capacity and ability of a witness to give evidence is procedural.  This covers the issues of competence, compellability and privilege.

The remedies available are determined by domestic law.  The procedure in the trial and the nature of remedies available turn on domestic law.  Domestic law governs the execution of judgments within the state.

Contracts may be specifically performed under the domestic law, even though the foreign law applicable would not permit such an order.  Conversely an Irish domestic court may not grant the order where it\’s not available under domestic law even if the relevant foreign law would allow it.

Damages are the principal remedy  under the common law system.  Some  aspects of damages are procedural.  The principle that damages apply by way of a once for a lump sum is  determined by the domestic court.

Questions as to the  measure of damages are largely substantive.  Rules of remoteness are matters of substance rather than procedure.  The distinction between the measure of damages and remoteness of damage are blurred in the law of torts / civil wrongs.

Where there are self-help remedies or rights, for example, the right to reject goods, the law of the place of the transaction applies.

The courts cannot take judicial notice of foreign law.  Foreign law must generally be treated and proved as matter of fact whereas it applies.  Ultimately foreign law must be applied and interpreted notwithstanding that it is a matter of fact.

Foreign law is proved by expert evidence.  The general principles applicable to expert testimony apply.  Accordingly evidence may be given, only by a person with expertise in that foreign law.  See generally the principles applicable to expert witnesses.

The courts are reluctant to accept evidence given by persons who have merely studied foreign law.  Practitioners are preferred. A judge or legal practitioner from the state or jurisdiction concerned may appear to give evidence.

In some case the evidence of non-lawyers will be accepted.  Evidence may be given by diplomatic representatives, ambassadors, bank officials, merchants et cetera. However, they are not preferred, and the best evidence is that of legal experts.

Each side may introduce evidence as to the law concerned.  However, witnesses in each case are experts and owe duties to the court.

A party may admit foreign law.  He may, for example, admit that his conduct in another jurisdiction is illegal, However, if  the remark is simply casual and in passing, this will be unusually insufficient to constitute an  admission.

The witness may exhibit and refer to foreign statute. The evidence must come from the witness and not from the foreign textbook to which reference is made  .

Generally a court may not interpret the foreign law.  However, the court may be more willing to interpret a foreign document.

Where uncontradicted evidence of law is offered the courts will generally accept it.  However, the witnesses\’ qualifications and credibility must be unimpeached. If  the evidence is false and unreliable, the court may reject it. Where there is a conflict of evidence, the court must determine the position as best as it can be using the material at its disposal.

Foreign law may be admitted.  This may more readily be done where the question is one of interpreting a statute.    There is said to be presumption that foreign law is presumed to be the same as Irish law in the absence of proof to the contrary. Where a foreign law is not proved,  the court may apply Irish law.  This may be done for pragmatic reasons. This approach has been criticised.

The courts may refuse to apply certain foreign laws where they are against public policy.  Traditionally the courts have also refused to enforce foreign revenue laws.  This has changed particularly in the context of EU legislation.

The courts do not apply a foreign criminal or penal law.  This is a very well established principle.  See separately in relation to criminal law. There are provisions for extradition and for the  European Arrest Warrant,  by which persons may be brought before the criminal courts of another state.

Generally, criminal laws are enforced by the state and the objective is to punish misconduct or noncompliance. Traditionally criminal laws did not apply outside a state’s  boundaries.  However, legislation has provided that a range of criminal offences including those in relation to terrorism, drug dealing and crimes against children, may be prosecuted within the state although the criminal acts occur abroad.

A penal law may not be apparent on its face.  The court must consider whether it is penal in substance. If the law has the characteristics of a criminal or penal law, then it may be so categorised.

Many offences are regulatory in nature. Many have penalties attached but that does not necessarily mean that they will be categorised as penal. Where the penalties are enforceable by the state on behalf of the community at large, they are more likely to be categorised as penal.

There may be cases where it is difficult to draw a distinction between a private remedy and a public or  penal remedy.  The fact that compensation may be awarded for a crime does not make it penal, even if there is a punitive element.

Foreign actions to enforce contempt of court have been held penal. The position may differ under EU Enforcement of Judgments legislation.

Foreign penal rules based on discriminatory basis will not be enforced.  Laws based on providing penalties and incapacities based on race, creed, gender et cetera will not be enforced.

Traditionally countries do not enforce each other\’s revenue law.  Revenue laws were traditionally regarded as quasi-penal. The scope of what comprises a revenue debt may be unclear.  It may include property taxes, income taxes, value added taxes and a range of other taxes with no direct counterpart in the state.

Where persons that are outside the jurisdiction practical issues may arise in compelling evidence.  The courts may request foreign courts to take evidence for proceedings before them. The Irish courts may order the examination of a witness abroad on commission on such terms as they order.  In this case the order is effective only if the addressee is willing to comply.

Evidence on commission may be admissible if it is essential for the proceedings and the witness can\’t be produced. Evidence on commission may be ordered if the witness can\’t afford or cannot practically come to give evidence, for sufficient reason.

A letter of request may be issued by a court to a court in another state requesting examination of a witness. Some international conventions apply.  Evidence requested by foreign tribunals is governed by the Foreign Tribunals Evidence Act 1856.

In the case of inward request, the request may be channelled by diplomatic means to the Department of Foreign Affairs.  An application may be made to a judge of the High Court. The order may direct the examination to be made, for example before a District Judge.   The High Court may give all directions as to the time, place, and manner of such examination, and all other matters connected therewith, as may appear reasonable and just. Any such Order may be enforced as a domestic court order

The Irish courts will refuse requests where it will be contrary to domestic public policy. The Act allows witnesses the same powers to refuse to answer questions if it would incriminate themselves as applied in domestic proceedings.

The rules of the superior courts  provide for the procedure for examination of a witness before an Irish consul in a foreign country with which there is a convention. There is a bilateral consular Convention with United States.

The Hague Conference on Private International Law adapted a convention undertaking of evidence abroad in civil and commercial matters.  The convention seeks to facilitate taking of evidence abroad check if the Ireland has ratified the convention.