Navigate The Professional Disputes Landscape In Ireland – Your Questions Answered

Professional indemnity disputes in Ireland can present many intricacies. Read Clyde & Co's guide to help you navigate the professional disputes landscape.

Executive Summary

The court system in Ireland benefits defendant in PI claims as it requires expert preparation and expert evidence that can contribute significantly to the costs and length of PI disputes. ADR can be used to resolve large PI disputes. The Courts accord primacy to arbitration in commercial agreements, including agreements entered into by professionals. The limitation period applying to professional liability disputes for contractual claims in six years from the date of breach of contract. In terms of Professional liability case funding, contingency fees in matters already in litigation are not allowed under Irish law. Third party litigation funding is also prohibited. PI cases in the High Court's Commercial List take, on average, less than one year to reach trial and judgement due to active case management. PI matters heard in the High Court Non-Jury List will take on average 2-3 years. Under S22 of the Courts Act 1981, the Irish Courts have discretion to order the payment of interest on the hole or any part of any sum awarded to a party in litigation in respect of the whole or any part of the period between the date when the cause of action accrued and the date of the judgement. The standard rule as to who should bear costs is generally that the unsuccessful party is ordered to pay the successful party' costs in Irish litigation. The most common tort action against professionals in Ireland is for negligence. In general, the limitation by professionals of their liability and damages recoverable against them by way of contractual provision is permissible under Irish law. Non-clients can sure a law firm in the tort of negligence or negligent misstatement provided three criteria are satisfied. 1.

Does the court system have features which benefit defendants in PI claims?


The main court for hearing civil commercial claims, including PI claims, in Ireland is the High Court, which has full original jurisdiction to hear all forms of civil dispute, using a common law system. The High Court hears commercial cases where the claim exceeds EUR 75,000, with the Circuit Court dealing with claims between EUR 15,001 - EUR 75,000 and the District Court adjudicating on matters up to EUR 15,000.

Commercial cases such as PI disputes are heard on an adversarial basis before a single judge without a jury, with High Court decisions constituting binding precedent unless overruled by the High Court or a superior Court (Court of Appeal/Supreme Court) subsequently. Appeals are possible from the High Court on points of fact or law to the Court of Appeal, and from the Court of Appeal on points of law to the Supreme Court. Interim remedies, such as injunctions and freezing orders, can also be sought in support of commercial (including PI) proceedings.

Ireland does not currently have a pre-action protocol for PI claims against defendant professionals, so there is no formal requirement that parties engage with each other substantively, whether through ADR or otherwise, prior to formal Court proceedings being commenced.

However, there is a costs-related requirement that a Plaintiff must receive written confirmation from an appropriate expert in the field that the relevant professional has been negligent before commencing proceedings; if not, that will have adverse costs consequences at the end of trial.

Most PI cases - certainly those that involve amounts in excess of €1m - can be admitted on application to the High Court's Commercial List. Cases in that List are case managed by an experienced commercial judge, with deadlines imposed for the exchange of pleadings, discovery, exchanges of witness statements and expert reports. The List generally deals with proceedings from beginning to end within approximately 1 year, compared to over 2 years in the regular High Court Non-Jury List.

Revised Pre-Trial Procedure, and Conduct of High Court Trial, rules were introduced on 1 October 2016 for the High Court Non-Jury List, which is the List into which PI cases are usually allocated.

The Pre-Trial Procedure rules - which essentially provide for judicial pre-trial directions regarding time-limits for exchange of pleadings (with costs consequences for breach), Case Management Conferences, Pre-Trial Conferences, and the preparation/exchange of written witness statements and expert reports at least 30 days prior to trial - have not yet been put into effect pending adequate judicial resourcing. Once in effect, those rules should produce a more structured and efficient pre-trial process for PI cases, thereby benefitting both Plaintiffs and Defendants.

The separate Conduct of Trial rules, which have been operational since 1 October 2016, govern (amongst other things) expert evidence at trial. Specifically, there is now a restriction of expert evidence to "that which is reasonably required to enable the Court to determine the proceedings". To that end, Order 39 Rule 58 of the Rules of the Superior Courts (RSC) provides the List/Trial Judge with wide powers of direction, including the power to order that evidence be given by a single joint expert. Rule 58 further provides that each party may offer evidence from one expert only on a particular issue unless the Court permits otherwise for a "special reason". Parties may now also put concise written questions to an expert retained by another party, or a single joint expert, within twenty-eight days of receipt of an expert report. However, the purpose of the questions can only be for clarification of the report, unless the Court permits otherwise or the other party agrees.

Additionally, under Order 39 Rules 60 and 61 RSC, where the expert reports of the various parties may contradict each other, the Judge chairing the pre-trial conference - via motion on notice from any party, or of his/her own volition - may require that:

the experts meet privately, without the presence of any party or any legal representative, to discuss their proposed evidence; draw up a joint report identifying the evidence that is agreed and disputed between them, to be furnished to the trial Judge and the parties. The Trial Judge, on considering the joint report, may "at any appropriate stage of the trial" apply a "debate among experts" (or "hot tubbing") procedure i.e. each sworn expert first summarises what is agreed and then presents on the points which are not agreed, with a debate following between the experts before the Trial Judge (with the Judge essentially acting as umpire).

Order 36 Rule 42 RSC now also provides, pursuant to the Conduct of Trial rules, that the Court, or an officer of the Court, can require a "reasoned estimate" as regards:

the length of the trial; a list of witnesses intended to be called by that party; and the time for examining and cross-examining witnesses. The Trial Judge is authorised to limit the time allowed for opening and closing statements, examination, cross examination and re-examination of a witness. The overriding objective is to prevent the common scenario of trial estimates being overrun through the manner in which the trial is ultimately conducted.

In sum, as it is expert preparation and expert...

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