Trial, Witnesses and Order

The Trial

In absence of agreement between the parties and/or their solicitors, the witnesses at the trial are to be examined verbally and in open Court.  The Judge may at any time for reasons as he thinks right, order that any particular fact shall be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Judge thinks reasonable. If the other party bona fide desires the production of the witness for cross-examination and the witness can be produced, an order shall not be made authorising affidavit evidence.

Documents put in evidence shall be marked by the officer of the Court. Unless the Court otherwise directs, they shall be returned to the party tendering the same, as soon as possible after the  after the  hearing.

In any action where it appears necessary for the purposes of justice, an order may be made for the examination on oath before the Court or before an officer in the Circuit Court Office, nominated by the Judge or County Registrar or other suitable person and at convenient place, of any witness or other person.  The order may empower any party to the action, proceeding or matter, to give such examination or deposition in evidence therein on such terms, if any, as the Judge may direct.

Witnesses

Any party desiring the attendance of any person to give evidence or produce books, papers or documents shall apply to the County Registrar for a witness summons.  The summons shall require the person to whom the summons is directed to comply with the requirements thereof at the time and place stated.  The format of a witness summons is prescribed by the Rules.In the case of any difficulty as regarding the issue of a summons, application may be made to Court for the issue of the same and the Judge shall direct the issue and deal with the matter as shall seem just.

Service of a witness summons shall in all cases be personal or by registered post upon the person named therein, unless the Judger or County Registrar shall otherwise order.  If it shall appear that the person served has not been not given reasonable time to enable him to appear in pursuance of the summons or that his reasonable expenses have not been paid or offered, the Judge may set aside or disregard service.

Every witness summons, other than the summons requiring production of documents may be directed and served upon more than one person.

An officer of a court who is required by summons to attend with records of documents outside the county for which he serves, is entitled to require that the party’s solicitor or party desiring his attendance, deposit sufficient monies to meet his charges and expenses in respect of such attendance.

If a person  having been duly summoned to give evidence or produce books, records or documents in his possession which the party requiring his attendance desires to put in evidence,

• fails without lawful excuse to attend or give evidence or to produce such books, papers or documents, unless duly excused or
•  fails to attend or remain in attendance at the hearing,

then the Court may if satisfied that he has been duly summoned and that his reasonable expenses have been tendered, may attach him for contempt.

In such case, the court  may impose a fine for his default and sentence him in default of payment to imprisonment to a term not exceeding one month. The Court may, on cause shown, remit the whole or any part of any fine or imprisonment which it may impose or may order the amount so imposed or any part thereof, to be paid to either party in respect of costs and expenses of any postponement or adjournment rendered necessary by the default of the witness.

EU Regulation Re Evidence

EU Regulation provide for taking of evidence for EU Courts or for domestic Courts in other EU States.  In civil and commercial matters,  the court of a Member State requests the competent court of another Member State to obtain evidence; requests permission to gather evidence themselves in another Member State.

The request should be made to obtain evidence which is intended for use in judicial proceedings, commenced or contemplated. Member States must draw up a list of the courts authorised to obtain evidence and indicate their territorial and/or special jurisdiction. Requests are directly transmitted by the court before which the proceedings are taking place or are planned (the requesting court) to the court of the Member State gathering evidence (the requested court).

Each Member State is to designate a central authority responsible for supplying information to the courts; seeking solutions to any difficulties regarding transmission; forwarding, in exceptional cases, a request to the competent court.The request must be lodged using the form specified in this Regulation, and must contain certain details, such as the name and address of the parties to the proceedings, the nature and subject matter of the case, a description of the taking of evidence to be performed, etc.

The Regulation lays down that requests must be drafted in the official language of the Member State of the requested court or in any other language that the requested Member State has indicated it can accept.

Requests are executed in accordance with the law of the requested Member State. The request must be executed within ninety days of receipt. The execution of a request may be refused only if:

• the request does not fall within the scope of the Regulation (e.g. it concerns criminal and not civil or commercial proceedings);
• the execution of the request does not fall within the functions of the judiciary;
• the request is incomplete;
• a person of whom a hearing has been requested claims a right to refuse, or a prohibition, from giving evidence; the deposit or advance relating to the costs of consulting an expert has not been made;

Where a request is refused, the requested court must notify the requesting court within sixty days of receipt of the request.If permitted by the law of the Member State of the requesting court, representatives of the requesting court have the right to be present when the requested court undertakes the act requested. The parties and, if any, their representatives may also be present.

Consent to Judgment

The defendant may, in accordance with the following procedures, at any stage of the proceedings, consent to judgment being entered against him.  In  cases other than those referred to below, judgment by consent may be  entered only with Order of Court. Judgment by consent without reference to Court may be entered, provided that

• the parties are over age and of mental capacity;
• the consent is in relation to judgment for ejectment, mesne rates, debt, damages for breach of contract or tort, or delivery of specific goods; and
• the consent is to judgment upon the claimant\’s claim without terms or conditions other than as to stay of execution or payment by instalments.

A consent may be to judgment determining only the issue of liability on the claim or on part of it and reserving the right to have other issues determined by the Court.  For example, this may include assessment of damages.

Consent to judgment must be in writing and signed by the defendant so consenting and by a solicitor, if represented by a solicitor.  The form of consent is specified in the Schedule and must be lodged, together with an affidavit verifying execution by the consenting defendant.  Judgment may be entered in the Office against such defendant in the terms of the consent without reference to the Court.

Where the Civil Bill incorporates two separate or distinct causes of action, consent may be given to one, judgment in one and the other may be contested.

Where the claim is for a debt or liquidated sum or for delivery of goods, the defendant may consent to judgment in respect of part of the debt, demand or goods, as the case may be and he may defend the remainder.

The County Registrar may in any case refuse to enter judgment by consent to the Office.  In this case, he shall refer the matter to the Court.

Setting Aside Judgment

Any party against whom a judgment in default of Appearance or Defence has been given, may not later than 10 days after becoming aware of it, serve a motion to vary or set aside the judgment. Service of the motion does not stay the proceedings. save with the leave of the Court and subject to such directions as Court shall deem appropriate.

Every notice shall clearly and briefly set out the reasons why the party applying did not enter an Appearance and did not deliver a Defence, as the case may be, the nature of the fraud, misrepresentation, surprise or mistake relied on and the grounds of Defence to the action in which the said judgment was given.

Unless the Court otherwise directs, the motion shall not be heard until the party applying has complied with the directions of the Court including directions relating to lodgement of  sums, either in respect of the judgment debt, costs awarded against him by the judgment or such further sum, such as security for costs as the Judge shall consider just.

The Judge may, on the hearing of the motion, vary or set aside the judgment in question, upon such terms as to costs or otherwise, including lodging in Court the amount of such judgment or part thereof.  He may give directions and such extensions of time as may be necessary in regard to further conduct of the action.  An order may be made as the Judge considers just in regard to moneys paid into Court by the defendant.