Trial Management

Table of Contents

Place, mode and sequence of trial

The Court may in any cause or matter, at any time or from time to time order:

that different questions of fact arising therein be tried by different modes of trial;
that one or more questions of fact be tried before the others;
that one or more issues of fact be tried before any other or others.

The Judge chairing any case management conference or pre-trial conference or the trial Judge may in any cause or matter which is listed for trial in the Commercial List or which is required to be heard in the Competition List, or in Case Management Conference may make an order:

directing that the trial be conducted in particular stages (in this rule, “modules”) and determining the questions, issues or set of questions or issues of fact, or of fact and law, to be the subject of each or any module, and the sequence in which particular modules shall be tried;
specifying the nature of the evidence, or the witnesses, including expert witnesses, required to enable the Court to determine the questions or issues arising in each or any module;
directing the exchange and filing in Court, either in advance of each or any module or following the conclusion of the module concerned, of written submissions on the questions or issues of law arising in that module.

Where a trial is being conducted in accordance with an order so made ), the provisions of the Rules which relate to management of time at trial, expert evidence and preparation for trial, unless the Judge otherwise orders, apply to each module as if it were a separate trial

Adjournments

The court has discretion to adjourn proceedings including of the plenary trial. This may be related to matter such as the health of the parties or witness, change of legal representation and other justifying circumstances. The adjournment may be made on such terms as the judge thinks fit. The judge must exercise his or her functions judicially in accordance with principles of fair procedures.

The court will have regard to factors in considering and adjournment such as

agreement of parties or not
the lateness of the application
the extent of prejudice to the other side
possibility of its tactical use
imposition on the other side
time allocated by the court
disruption of the orderly conduct of the court’s business
dislocation and inconvenience of other litigants
time of the court being absorbed
whether there was already an adequate opportunity to deal with the matter
whether there have been previous adjournments

If an adjournment is sought on the basis of medical needs of a party or witness, evidence medical evidence would be required.

In the case of a witness, an adjournment may be appropriate if the witness is unable to attend, has a reasonable prospect of attending a later adjourned hearing and the other party would suffer no injustice that cannot be remedied by an award of costs.

The general position that is the parties are not entitled to an adjournment merely because criminal proceedings are pending. However, if there is a real prejudice arising from the civil proceedings being determined before the criminal proceedings, the court may agree to an adjournment.

Modular Trials

The 2016 revision of the rules allows for modular trials. The court may in any matter at any time order

different questions of fact arising be tried by different modes of trial
that one or more questions of fact be tried before the others
that one or more issues of fact be tried before any of the others.

The judge in chairing a case management conference or pre-trial conference may make an order

directing the trial to be conducted in modules
that it determine questions, issues and sets of questions of issues of fact of law to be the subject of each such module and
directing the sequence in which particular modules will be tried.

It may

specify the nature of the evidence of the witnesses including expert witnesses required to enable the court to determine the issues arising
direct the exchange and filing in court either in advance of each or any module or following the conclusion of written submissions on the questions or issues of law that arise in that module.

The procedure involves the court exercising its inherent jurisdiction as to how the trial of issues will be conducted. Instead of the whole trial being heard at once, it may determine that it is appropriate to have specific issues tried in sequence. The prospective advantage is that the outcome of the earlier modules may determine and may make the later modules unnecessary and may enable them to be dealt with in a more efficient way.

The most common division is between liability issues and quantum issues. If the issue of liability is determined in favour of the defendant then a trial on the quantum issues will not arise.

Criteria for Modular Trials

The general presumption remains that on straightforward litigation that may last a number of days at most a single trial trying all issues together is the most appropriate. Separating the issues could lead to more time being spent on duplication. However, in more complicated litigation a modular trial may be appropriate.

Factors to be taken into account include

complexity and likely length of the trial
the need in some cases to insulate a party who was involved in only some of a wide range of issues from the expense of having to be involved in a full trial
the likely relative length and complexity of the modules
the extent of overlap in the evidence of witnesses evidence of witnesses that will be relevant
whether there was a risk that a modular trial could give rise to prejudice.
whether issues can be tried in isolation from others in dispute
whether there is a clear saving in time and costs
whether generally it assists the litigation

Management of time at trial

The Court or an officer of the Court may require any party to proceedings to provide a reasoned estimate of the time likely to be spent in the trial of the proceedings, including a list of the witnesses intended to be called by that party and an estimated time for the examination or cross-examination (as the case may be) of each witness intended to be called by that party or by any other party.

The trial of proceedings shall, as regards the time available for any step or element, be under the control and management of the trial Judge, and the trial Judge may, from time to time, make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the interests of justice.

The trial Judge may:

having regard to the period of time fixed for the trial, and
having considered any materials (including any reports and summaries or statements of the evidence of any witnesses) delivered to him or her in advance of the trial in accordance with any provision of these Rules or any order or direction of the Court, and
having heard the parties,

make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the requirements of justice.

Time Management Orders and Directions

They may include orders fixing or limiting the amount of time allowed to each party for opening and closing the case (including the making of oral submissions on points or issues of law) and for examining and cross-examining each witness, which may include an order allowing each party an amount of time (out of the total time set aside for the trial of the proceedings) for its presentation of its case, which may be used in opening the case, in closing the case, in examining in chief or in re-examining any witness called by that party, and in cross-examining any witnesses called by any other party, and

The may include directions as to

the issues on which the Court requires evidence;
as to the nature of the evidence required to enable such issues to be determined;
as to the manner in which such evidence is to be put before the Court; where written submissions on points or issues of law have been lodged in advance of the trial,
as to whether the Judge shall require any oral submissions on points or issues of law in addition to those written submissions, or requiring the parties or any party at any stage of the trial to identify the issues which arise or remain for determination by the Court and the questions which the Court is required to decide in order to determine each such issue.

For the purposes of considering the making of an order or otherwise, the trial Judge may require counsel for each party (or a party, if appearing in person) to indicate how much time is required by that party to be taken in the examination or cross-examination of each witness, or in any other step in the trial.

The trial Judge may, having regard to any order or direction, allow the time proposed by any party, or may allow such other period of time as the Court considers is consistent with the efficient conduct of the trial and with the requirements of justice.

Time Management; Witnesses

The re-examination of witnesses shall be limited to new matters that were raised for the first time on cross-examination and shall be concise.

A party shall avoid duplicating the same evidence by different witnesses, save where such duplication is necessary for the just determination of the proceedings.

Without prejudice to any other powers conferred on the Court , in any case in which the Court is satisfied that the evidence of a witness called by a party was (in whole or in part) unnecessary for the determination of any question or issue arising in the proceedings, or merely duplicative of the evidence given by another witness called by that party, the Court may:

make an order disallowing (in whole or in part) recovery by a party of the expenses of the witness concerned or the costs occasioned by calling the evidence of the witness concerned, or
order the payment by that party (in whole or in part) of the costs occasioned to any other party by the calling of the witness concerned, provided that no such order shall be made where the Court is satisfied that any duplication of evidence was necessary for the just determination of the proceedings.

Evidence by video link or other means

Where the Court directs in accordance with the Civil Law (Miscellaneous Provisions) Act that a party may participate in the trial of proceedings, or that a witness may give evidence, whether from within or outside the State, through a live video link or by other means, the Court shall give such further directions as to the participation or evidence as are necessary for the efficient conduct of the trial consistently with the requirements of justice.

Evidence given shall be recorded electronically or otherwise as the Court directs.

Mediation

The High Court on the application of any party or of its own motion, may when it considers it appropriate having regard to the circumstances of the case order that proceedings or any issue therein, be adjourned for such time as the Court considers just and convenient may invite the parties to use an ADR process or settle or determine the proceedings or issue. Where the party consent, it may refer the proceedings to such process.

An ADR process means mediation conciliation or other dispute resolution process approved by the Court. It does not include arbitration.

Where the parties decide to use an ADR process, the Court may make an order extending the time for compliance by any party with any provisions of the rules. It may make such further or other orders and give such directions as the Court considers in order to facilitate the effective use of that process.