The Future of Litigation is Here

The Covid-19 pandemic has changed, or dramatically accelerated the rate of change, in working practices for people in all sector of the economy. As the Court Service announces plans to ramp up the facilities to hear cases remotely and with a number of high profile cases having recently been directed to remote hearing in the Commercial List of the High Court, despite objection by some parties, we take a look at some significant changes to practice and procedure in civil litigation in Ireland which have been put on a statutory footing by the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the Act”), the relevant sections of which came into effect on 21 August 2020. This article will focus on the civil law aspects which are defined in the Act as being anything other than criminal proceedings.

Remote Hearings

The first provision of note in the Act is Section 11, which deals with remote hearings. A remote hearing is defined as one in which one or more of the participants participates from a location other than the court itself, whether within or outside the State, by means of electronic communications technology that enables real time transmission and real time two-way audio-visual or audio communication.

Essentially, the Act provides that a court can, on its own initiative, or at the request of a party, direct that any proceedings (or any part) be heard remotely. The court can nominate the electronic technology (real time two-way audio-visual or audio communication) to be used and may give any ancillary directions. A remote hearing should not proceed where the court considers that a remote hearing would be unfair to any of the parties or otherwise be contrary to the interests of justice. The Act permits the making of rules of court to govern the conduct of remote hearings. Where a remote hearing is to take place, the court will have all of the powers (including in relation to the attendance of witnesses and the production of documents) which it usually would have at a normal, in-person hearing.

A person who participates in remote hearings from a location other than the court itself, whether within or outside the State, by means of electronic communications technology, is deemed to be present and they benefit from the same immunities and privileges and are subject to the same obligations and liabilities as if it were not a remote hearing. Recording remote proceedings without the court’s consent or interference with the technology or is a criminal offence which will be taken to have been committed within the State (even though the person may be located outside the State).

District Court or Circuit Court Judges hearing cases remotely are deemed to be present at a sitting of the District Court or Circuit Court in which they would otherwise have been sitting and may exercise, while in any place in the State, any power conferred on them.

The Act permits the publication of practice directions in the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise costs. A practice direction may provide for such incidental, supplementary and consequential matters, including in respect of a failure to comply with a direction.

Business Records

Another innovation in the Act is that any record in document form (unless privileged) compiled in the ordinary course of business (including a business which has ceased to exist) will be presumed to be admissible as evidence of the truth of the facts asserted in the document where the document complies with the certain requirements. This applies to copies of records where the original has been not still in existence so long as the court is satisfied with its reliability. The presumption of admissibility does not apply to documents where the party seeking to rely on the document could not compel the author of the document to give evidence. The presumption of admissibility would generally not apply to information compiled for the purposes or in contemplation of any criminal investigation, any investigation or inquiry carried out pursuant to or under any enactment, civil or criminal proceedings, or proceedings of a disciplinary nature. There are some stated exceptions to the non-presumption of admissibility but the rule generally applies.

The presumption of admissibility apples to business records in document form that originate from outside the State notwithstanding the fact that any person who may act on behalf of the business concerned is not compellable to give evidence in a court in the State.

In order to avail of the presumption of admissibility, unless the court allows it, the party seeking to rely on the document must serve a copy of the document on the other party or at least 21 days before the trial, notify the other parties of their intention to give the information in evidence and give them a copy of the document. The receiving party may not object to the admissibility of the document unless they have served a notice of objection at least 7 days before the trial date.

Business records may not be admitted as evidence if, having had regard to all the circumstances (such as reliability, authenticity and absence of opportunity to controvert the evidence), the court is of the opinion that in the interests of justice the information should not to be admitted. Where business records are admitted as evidence, evidence may be given of the author’s credibility or that they had made other statements inconsistent with the record.

Electronic Filing

The Act provides for the making of rules of court relating to the filing of documents, the making of an application to court or the issuing of proceedings or judgments by electronic means.

Statements of Truth

The Act also provides for the making of rules of court to allow a “statement of truth” in respect of any evidence which would otherwise be given on, or a document or information to be verified by, affidavit or statutory declaration. The statement of truth may be in electronic form, must contain a statement that the person making the statement of truth has an honest belief that the facts stated therein are true, may be signed by the person entering his or her name in an electronic format or otherwise electronically as may be permitted by rules of court, and must comply with any other requirements as to its content, verification, authentication or form as may be prescribed by the rules of court. A person who makes, or causes to be made, a statement in a statement of truth without an honest belief as to the truth of that statement is guilty of an offence.

Commentary

For a system that has been traditionally conservative, the modernising reforms introduced by the Act have dramatically altered civil litigation practice in Ireland and signal a forward-looking approach to embracing the benefits of technology. The reforms should result in efficiencies which are likely to reduce the duration and overall costs of litigation. The prospect of evidence being given remotely and business records being admitted without the old formal proofs may have a transformative effect on how proceedings are conducted. It will be interesting to watch the courts’ interpretation and implementation of these new provisions. While there may be caution and even resistance from some quarters, this is the future and there will be no going back.