Defender v HSBC highlights the need for plaintiffs to understand the blameworthiness of all wrongdoers before settling a claim against any of them. This case concerned Defender, a fund which invested with Bernard Madoff and subsequently suffered a loss when Madoff was revealed to be operating the world's largest Ponzi scheme.
The High Court recently dealt with a professional negligence claim following a retainer by a couple of a chartered engineering firm regarding the construction of their home in 2005. The defendants had brought a strike-out claim for a significant delay in the construction proceedings. On the facts of the case and owing to the fact that the defendant had been a professional person, the case was allowed to proceed on a limited basis.
Businesses with experience litigating in Ireland will be familiar with the discovery process and the onerous obligation to disclose all relevant documents which are in their power, possession or procurement. In an age when the volume of electronically stored information continues to increase exponentially, the costs and time involved in complying with discovery orders can often be disproportionate; however, change may be on the horizon.
Straitened times have led to an increase in litigation before the courts involving lay litigants or litigants in person acting without formal legal representation. Notwithstanding that such litigants may not have instructed a solicitor or barrister, they sometimes appear with assistance from a non-legally qualified third party. Recent practice directions across the various levels of the court provide important guidance on the scope of such assistance.
A recent Court of Appeal decision has restored certainty that under Irish law there is no general duty of good faith in the context of commercial contracts. The decision has a wide application and is of interest to all parties across the entire spectrum of commercial contractual arrangements. It clarifies important questions in relation to the proper approach to the interpretation and implication of terms in a commercial contract.
Two new statutory instruments (SI 254/2016 and SI 255/2016), which make wide-ranging reforms to the procedural rules applicable to civil litigation, recently entered into force. However, a number of the rules contained in SI 255 are dependent on the assignment of list judges and registrars to the chancery and non-jury lists. The High Court has stated that it does not intend to assign either list judges or registrars until the necessary resources have been put in place.
In a recent case, the High Court upheld a centuries-old prohibition on litigation funding by a third party in return for a share of the proceeds with the party that has a genuine interest in the case. Both parties sought leave for a leapfrog appeal of the High Court's decision to the Supreme Court. The Supreme Court determined that this case did in fact meet the 'exceptional circumstances' requirement to justify a leapfrog appeal.
The Central Bank's inquiry process received resounding endorsement by the High Court in decisions against two former directors of the Irish Nationwide Building Society, Michael Fingleton and John Stanley Purcell. In July 2015 the Central Bank published a notice of inquiry confirming that it was to investigate alleged regulatory breaches. Fingleton and Purcell brought separate challenges aimed at overturning the decision, but the claims were recently dismissed.
The High Court recently upheld a finding of the Financial Services Ombudsman that an insurer was entitled to avoid a life assurance policy on the grounds of non-disclosure. Significantly, the decision turned on the strength of the proposal form and serves as a useful reminder to insurers of the importance of a well-drafted proposal form.
A recent High Court decision reaffirms that not all cases are appropriate for mediation. Although the Irish courts are supportive of mediation and recognise the benefits that it may bring in the context of a commercial dispute, the court rules pursuant to which proceedings might be adjourned to facilitate mediation will not always be invoked. In considering whether to make an order pursuant to the relevant rule, various factors are relevant to the exercise of the courts' discretion.
A recent High Court decision confirms that cross-examination of deponents of affidavits will not generally be permitted on an interlocutory application. This decision serves as a useful reminder that interlocutory applications typically proceed by way of affidavit evidence only. Accordingly, a party involved in an interlocutory application should think twice before seeking to cross-examine a deponent.
The Irish judiciary has long been cognisant of the rights of all parties to access the courts and have a right to a fair hearing. However, due to straitened economic circumstances, litigation is increasingly conducted by litigants in person, meaning that strict compliance with court procedures is not always possible. The Supreme Court recently offered some guidance with regard to the allocation of court resources and the extent to which litigants might be indulged by the court.
The Irish courts have recognised the possibility of modular trials, where a specific or discrete module of the proceedings might be tried in and of itself, independently of any other aspects of the proceedings, as being appropriate in certain circumstances. It is apparent from existing case law that modular trials constitute an exception to the usual unitary approach to hearings in Ireland. Accordingly, it is only in exceptional cases that a modular trial may be ordered.
The High Court recently confirmed that maintenance and champerty remain part of Irish law. The decision is significant to third-party funders, which face a challenging legal landscape in Ireland. Ultimately, the court concluded that maintenance and champerty continue to be torts and offences in Ireland and, as such, it is prohibited for an entity to fund litigation in which it has no independent or good-faith interest for a share of the profits.
The Court of Appeal has confirmed that although alternative dispute resolution is worthwhile in many cases, it is inappropriate to invite parties to mediate in all cases. The decision identifies the circumstances that a court may consider when faced with an application to issue an invitation to mediate. It is one example of a case in which the novelty of the legal issues involved mean that making the order sought is inappropriate.
A recent High Court decision has confirmed that when faced with an injunction application, the court will examine the precise nature of the order sought in considering whether to grant an injunction, rather than simply relying on how the applicant might characterise it. This arises from the fact that different standards apply, depending on whether the order sought is prohibitory or mandatory in nature.
The Court of Appeal recently considered the extent to which findings of fact made by a trial court can be revisited on appeal. Although the decision is very much confined to its facts, it is important because it recites and applies the relevant case law regarding the extent to which an appellate court may revisit findings of fact and inferences by a trial court.
The High Court has deemed that the question of determining which governing law applies to a dispute should not be dealt with as a separate and distinct matter in isolation from a ruling on the relevant facts. Parties should be mindful that where a dispute arises and there is a question over the applicable law, the Irish courts may require all aspects of the dispute to be determined at the same time.
The Court of Appeal has reminded practitioners that interrogatories – essentially a series of questions involving yes or no answers – should not be disregarded as a litigation tool. Although leave of the court is required in most High Court litigation before interrogatories can be deployed, the decision is a reminder that the test for obtaining such permission is not as difficult to meet as is often perceived.
A recent decision has reaffirmed that a strict test will be applied where a defendant seeks to strike out a claim against it on the basis that no case against the defendant can be demonstrated. The Irish courts have been slow to strike out a plaintiff's case based on the pleadings and this decision shows that it is only in exceptional cases that such an application will prevail.