Superior Court Rules

ORDER 36

TRIAL

I. Place, mode and sequence of trial

1. Unless otherwise provided by statute or by these Rules, proceedings in the High Court shall be tried in Dublin save where, having regard to:

(i) the availability of facilities for the trial of the proceedings and

(ii) the desirability of providing a trial date as soon as possible once proceedings are ready for trial,

the President of the High Court, whether in respect of individual proceedings or any category or categories of proceedings, otherwise directs.

[SI 254/16; SI 209/10]

2. (a) Subject to rule 1, an application by any party for a direction that the trial of any proceedings not referred to in paragraph (b) take place at a particular venue shall be made to a Judge promptly after the close of the pleadings and in any event not later than three months prior to the date fixed for trial by motion on notice to the other party or parties to such proceedings or, if such other party or parties consent thereto, by motion ex parte.

(b) In the case of any proceedings referred to in section 1, subsection (1) and (2) of the Courts Act, 1988 -

(i) subject to the other provisions of this rule, notice of trial shall be served for the city or town mentioned in Column 1 of the Table set out hereunder in any case where the Plaintiff resides or the wrong is alleged to have been committed or to have happened in any of the counties mentioned in Column 2 of the said Table opposite the said city or town respectively, and

(ii) the trial of the proceedings concerned shall, save where a direction has been given under paragraph (c) or (d), take place in the city or town concerned.

Column 1 Column 2
1. Dundalk 1. Louth, Meath, Longford, Cavan, Monaghan.
2. Kilkenny 2. Kilkenny, Carlow, Waterford, Tipperary, Offaly, Laois, Wexford.
3. Waterford 3. Waterford, Tipperary, Laois, Carlow, Kilkenny, Wexford.
4. Cork 4. Cork and Kerry.
5. Limerick 5. Limerick, Tipperary, Kerry, Clare.
6. Galway 6. Galway, Mayo, Roscommon, Longford, Westmeath, Offaly, Clare.
7. Sligo 7. Sligo, Donegal, Leitrim, Cavan, Longford, Westmeath, Roscommon, Mayo.

(c) Where he considers that the effective disposal of business generally of the Court so requires, the President of the High Court may direct that the trials of proceedings, or of any particular category of proceedings, or the trial of any particular proceedings which would otherwise take place at a particular city or town in accordance with paragraph (b), shall take place at another city or town specified in that direction.

(d) A party to any proceedings referred to in paragraph (b) may apply for a direction that such proceedings be tried at a city or town other than that for which the proceedings may be, or (where notice of trial has already been served) have been, set down for trial under that paragraph-

(i) with the consent of the other party, and save where the venue sought for the trial is Dublin-

by letter sent after the close of the pleadings to the officer for the time being managing the Central Office, marked ‘for the attention of the Principal Registrar’, enclosing a letter of such consent,

(ii) where the venue sought for the trial is Dublin, or where the other party does not consent-

on application made promptly after the close of the pleadings and in any event not later than three months prior to the date fixed for trial to a Judge designated by the President of the High Court for that purpose, on notice to the other party or parties to such proceedings.

(e) In the case of an application to which paragraph (d)(ii) refers-

(i) two clear days’ notice shall be given unless notice requires to be given personally, in which case four clear days’ notice shall be given,

(ii) notice shall be in writing but shall not require to be given by service of a notice of motion.

(f) A direction given by the President of the High Court under paragraph (c) shall be published in such manner (including by publication on the Courts Service website) as he may direct.

[SI 355/12]

3. A notice of trial shall be served in all actions commenced by plenary summons or adjourned for plenary hearing (other than probate and admiralty actions) and all such actions or matters shall be set down for trial in the Central Office. Motions to set aside a notice of trial shall be brought within four days after service of the notice complained of.

4. The plaintiff in probate and admiralty actions commenced by plenary summons and the petitioner in matrimonial matters commenced by petition, shall apply, by motion on notice to the Master for directions, and the Master, or the court, if the Master shall have placed the motion in the court list, shall fix the time and mode of trial and make any ancillary order with respect of pleadings, particulars, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, settlement of issues, or otherwise, which may be necessary or expedient. Provided that in case the plaintiff in any such probate or admiralty action or the petitioner in any such matrimonial matters shall fail so to apply within 14 days from the delivery of the last pleading, any defendant or any respondent, as the case may be, may apply for directions as aforesaid.

5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the court shall otherwise order.

6. In all cases not within rule 5, the party serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within 14 days from the service of notice of trial, or within such time as the court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.

7. The court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.

8. If it be made to appear at any time after the issuing of the proceedings to the satisfaction of the court upon the application of either party that the matter in dispute consists wholly or in part of matters of account which cannot conveniently be tried in the ordinary way, the court upon such application may decide such matter in a summary manner, or order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties or to the Master or Examiner upon such terms as to costs and otherwise as the court shall think reasonable.

9. (1) Subject to the provisions of the preceding rules of this Order, the Court may in any cause or matter, at any time or from time to time order:

(a) that different questions of fact arising therein be tried by different modes of trial;

(b) that one or more questions of fact be tried before the others;

(c) that one or more issues of fact be tried before any other or others.

(2) Subject to the provisions of the preceding rules of this Order, the Judge chairing any case management conference or pre-trial conference (each within the meaning of Order 63A, Order 63B or, as the case may be, Order 63C) or the trial Judge may in any cause or matter:

(a) which is listed for trial in the Commercial List or which is required to be heard in the Competition List, or

(b) in which an order may be made under Order 63C, rule 4,

make an order:

(i) 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;

(ii) 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;

(iii) 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.

(3) Where a trial is being conducted in accordance with an order made under sub-rule (2), the provisions of these Rules which relate to management of time at trial, expert evidence and preparation for trial (including Parts VI and XI of this Order; rules 14 to 22 inclusive of Order 63A; rules 13 to 21 inclusive of Order 63B, and rules 6 to 16 inclusive of Order 63C) shall, unless the Judge otherwise orders, apply to each module as if it were a separate trial.

[SI 254/16]

10. Every trial of any question or issue of fact with a jury shall be by a Judge, unless such trial be specially ordered to be by two or more Judges.

II. Notice of trial and setting down

11. Notice of trial may be given in any cause or matter by the plaintiff or other party in the position of plaintiff. Such notice may be given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial.

12. (a) If the plaintiff in any action does not within three weeks after the close of the pleadings give notice of trial, the defendant may on notice to the plaintiff apply to the court for liberty to give notice of trial, and on the hearing of such application the court may make such order, on such terms, as to the court shall seem just.

(b) If the plaintiff in any action does not within six weeks after the close of the pleadings, or within such extended time as the court may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial (which, in cases where the plaintiff is entitled as of right to a jury, shall be for trial with a jury), or may apply to the court to dismiss the action for want of prosecution; and on the hearing of such application, the court may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the court may seem just.

13. If within 14 days after the order of the Master or the court fixing the time and mode of trial the petitioner shall not enter a matrimonial proceeding for trial, the respondent may enter such proceeding for trial, or may apply to the court to dismiss the petition for want of prosecution.

14. If within 14 days after the order of the Master or the court fixing the time and mode of trial, the plaintiff in a probate or an admiralty action shall not enter the action for trial, the defendant may enter the action for trial.

15. Notice of trial shall state whether it is for the trial of the cause or matter or of issues therein, and shall be in one of the Forms Nos 18, 18A and 19 in Appendix C.

[SI 355/12]

16. Twenty one days’ notice of trial shall be given, unless the party to whom it is given has consented, or is under terms, or has been ordered, to take short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the court. Short notice of trial shall be four days’ notice, unless otherwise ordered.

17. Notice of trial shall be given before setting down the action for trial.

18. Unless, within 14 days after notice of trial is given the action shall be set down by one party or the other, the notice of trial shall be no longer in force.

19. Notice of trial or the setting down or entering for trial shall not be or operate as for any particular sittings; but shall be deemed to be for any day after the expiration of the notice on which the trial may come on in its order upon the list.

20. No notice of trial shall be countermanded except by consent or by leave of the court, which leave may be given subject to such terms as to costs, or otherwise, as may be just.

21. If the party giving notice of trial omits to set down the action within seven days after giving notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under rule 20, set down the action subject to rule 18.

22. The officer having the management of the Central Office for the time being shall be the proper officer to make entries and render accounts of all fines or penal sums imposed by the court.

23. When any cause or matter shall have been adjourned for further consideration, the same may, after the expiration of eight days, and within 14 days from the filing of the Examiner’s certificate, be set down for further consideration, on the written request of the solicitor for the plaintiff or party having the conduct of the proceedings, and after the expiration of such 14 days the cause or matter may be set down by the Registrar on the written request of the solicitor for the plaintiff or for any other party; and in either case, upon production of the judgment or order adjourning further consideration, or a copy thereof and a copy of the Examiner’s certificate or a memorandum of the date when the certificate was filed, indorsed on the request by the proper officer. The request may be in the Form No 27 in Appendix G. The cause or matter when so set down shall not be put into the list for further consideration until after the expiration of six days from the day on which the same was so set down. Notice thereof shall be given to the other parties in the action at least four days before the day for which the same may be so marked for further consideration. Such notice may be in the Form No 28 in Appendix G.

III. Papers for Judge

24. The party desiring to set down the proceedings for trial shall do so by delivering to the proper officer a copy of the notice of trial.

[SI 209/10]

25. The party entering a probate action for trial shall deliver to the proper officer a list with names and dates of all caveats, warnings, citations and appearances lodged, filed, issued or entered down to the date of such delivery and a copy of the order fixing the time and mode of trial.

[SI 209/10]

26. The party entering for trial a matrimonial proceeding commenced by petition shall deliver to the proper officer a copy of the order fixing the time and mode of trial and the issues to be tried.

[SI 209/10]

27. The party entering any proceedings for trial under rule 25 or 26 or his solicitor shall certify that the copy order delivered in accordance with the rule concerned is a true copy.

[SI 209/10]

IV. Proceedings at trial

28. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him.

29. In an action for the recovery of land, in case the title of the plaintiff shall appear to have existed as alleged in the summons at the time of service thereof, but it shall also appear to have expired before the time of trial, the plaintiff shall, notwithstanding, be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the summons, and to a judgment for his costs of suit.

30. In an action for the recovery of land, if the plaintiff appears and the defendant does not appear, the plaintiff shall be entitled to a verdict, without any proof of his title, and in case of an action for the recovery of land, grounded on title, shall be entitled to prove the amount of damages sustained by reason of the loss of the mesne rates and profits, and in case of an action for the recovery of land for non-payment of rent, shall be entitled to prove the amount of rent actually due, and to have a verdict for the same.

31. In cases coming within rule 30, where the action is for the recovery of land for non-payment of rent, the amount of rent due may be proved by the affidavit of the landlord, his agent, receiver or clerk.

32. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but, if he has a counterclaim, then he may prove such counterclaim so far as the burden of proof lies upon him.

33. Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem fit, upon an application made within six days after trial.

34. The Judge may, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he shall think fit.

35. Upon a trial with a jury, the addresses to the jury shall be regulated as follows: the party who begins, or his counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence, if any, and the right to reply shall be the same as heretofore.

36. ......

[Deleted by SI 511/09]

37. The Judge may in all cases disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious, and not relevant to any matter proper to be inquired into in the cause or matter.

38. The Judge may, at or after a trial, direct that judgment be entered for any or either party, or adjourn the case for further consideration before him. No judgment shall be entered after a trial without the order of the Judge.

39. Upon every trial the Registrar or other proper officer shall record all such findings of fact as the Judge may direct and the directions, if any, of the Judge as to judgment, and the certificates, if any, granted by the Judge, in a book to be kept for the purpose.

40. If the Judge shall direct that any judgment be entered for any party, the Registrar or other proper officer shall enter judgment accordingly.

V. Trials with assessors

41. (1) The Court may, on the application of a party or of its own motion and having heard the parties, appoint a person to assist the court in understanding or clarifying a matter, or evidence in relation to a matter, in respect of which that person (in this rule referred to as an “assessor”) has skill and experience.

(2) Trials with assessors appointed in accordance with this rule, Order 63B, rule 23 or Order 64, rule 43, shall take place in such manner and upon such terms as the Court shall direct.

(3) The Court may appoint an assessor nominated by the parties or nominated by the Court (having heard the parties), and on such terms as to the payment of the fees of the assessor and otherwise as the Court may direct.

(4) The fees to be paid to an assessor shall be determined by the Court, having heard the parties, in such amount or by such measure as the Court considers reasonable, and shall form part of the costs of the proceedings.

(5) The Court may order any party:

(a) to pay to the assessor, or

(b) to deposit with the Accountant on account of fees to become payable to the assessor,

a specified sum in respect of or on account of an assessor’s fees and, where the Court so orders, the assessor shall not be required to act until the said sum has been paid or, as the case may be, deposited.

(6) An assessor appointed in accordance with this rule, Order 63B, rule 23 or Order 64, rule 43 shall take such part in the proceedings as the Court may direct and in particular the Court may direct an assessor to—

(a) prepare a report for the Court on any matter at issue in the proceedings; and

(b) attend the whole or any part of the trial to advise the Court on any such matter and be available thereafter to assist the Court as aforesaid.

(7) Where an assessor prepares a report for the Court before the trial has begun—

(a) the Court shall cause a copy of the report to be sent to each of the parties; and

(b) any party may use that report at the trial.

(8) Where an assessor provides advice or other information to the Court, the Court shall inform the parties of such advice or information and afford each of them an opportunity to make submissions in respect of it.

[SI 254/16]

VI. Management of time at trial

42. (1) 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.

(2) 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.

(3) The trial Judge may:

(a) having regard to the period of time fixed for the trial, and

(b) 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

(c) 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 which may, without limitation, include:

(I) orders fixing or limiting the amount of time allowed to each party for opening and closing the case (including, subject to paragraph (II)(d), 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

(II) directions:

(a) as to the issues on which the Court requires evidence;

(b) as to the nature of the evidence required to enable such issues to be determined;

(c) as to the manner in which such evidence is to be put before the Court;

(d) 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

(e) 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.

(4) For the purposes of considering the making of an order under sub-rule (3) 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.

(5) The trial Judge may, having regard to any order or direction given in accordance with sub-rule (3), 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.

(6) 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.

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

(8) Without prejudice to any other powers conferred on the Court by Order 99, 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):

(a) unnecessary for the determination of any question or issue arising in the proceedings, or

(b) merely duplicative of the evidence given by another witness called by that party,

the Court may:

(i) make an order disallowing (in whole or in part) recovery by a party of the expenses of the witness con- cerned or the costs occasioned by calling the evidence of the witness concerned, or

(ii) 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.

[SI 254/16]

VII. Reference to Master as to damages

[SI 254/16]

43. The arrangement and regulation of the course of proceeding under a reference to the Master as to damages shall be wholly subject to the control and direction of the Master.

44. The evidence in all cases shall be taken down at the time by the Master, and preserved by him.

45. The result of the inquiry before the Master shall be stated in a certificate signed by him, and such certificate, when settled, shall be engrossed, and when signed shall be filed, and thereupon such certificate shall stand confirmed unless within four days after the filing thereof a notice of motion be served to set aside or vary the same.

46. Every such notice of motion shall specify the grounds on which it is intended to apply to set aside or vary such certificate.

47. Where the Master’s certificate shall stand confirmed under rule 44, or shall on such motion as therein mentioned be confirmed, final judgment may forthwith be entered accordingly.

48. In every action or proceeding in which it shall appear to the court that the amount of damages sought to be recovered is substantially a matter of calculation, the court may direct that the amount for which final judgment is to be entered shall be ascertained by the Master or other proper officer of the court, and the attendance of witnesses and the production of documents before the Master or such officer may be compelled by subpoena, and the Master or such officer may adjourn the inquiry from time to time, and shall certify the amount found by him, and the like proceedings may thereupon be had as to taxation of costs, entering judgment, and otherwise, as upon the finding of a jury.

49. Where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment.

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