Plans for a specialist commercial division within the Circuit Court
IN 1894, the first English Commercial Court was established.
Now, finally, Ireland is to follow suit. The plan is to get the new Commercial Court fully up and running, here, by the start of 2004. A case of better late than never.
In Britain, a whole raft of cases are held before specialist judges, and efforts are underway to overhaul the system even further.
At present, senior members of the Irish judiciary, Courts Service and legal profession are in the throes of devising a set of rules for the proposed Commercial Court, to be headed up by High Court Judge Peter Kelly.
Judge Kelly's new posting will no doubt be welcomed by the civil servants and politicians who have borne the brunt of his criticisms criticisms stemming from defects in the country's creaking child welfare service. The second judge on the court will be Mrs Justice Mary Finlay Geoghegan, a daughter of former Chief Justice Tom Finlay and the wife of Supreme Court Justice Hugh Geoghegan. Both judges are regarded as highly expert in the whole commercial legal field and the idea is that these judges will hear complex cases meriting intensive case management on a continuing basis.
Under the existing, rather flawed system, any judge, regardless of his or her background and expertise, can be assigned a complex case involving corporate litigation. A judge does not know, until the last moment, what case he or she will be assigned, which rules out the possibility of pre-preparation.
The proposal for the Commercial Court arose out of a report published last year by the Committee on Court Practice and Procedure chaired by Supreme Court Judge Susan Denham. According to the committee, "there is merit in establishing a more specialised approach to commercial cases."
What was suggested was not a stand-alone court, but rather a commercial court operating as part of the High Court. To an extent, already judges with particular expertise specialise in those fields. This process would be speeded up and formalised. The committee recommended that the Commercial Court be established gradually.
Eventually, a specialist commercial division within the Circuit Court, dealing with medium-sized actions and sitting more frequently outside the capital will come into being. This should greatly assist business people seeking legal redress.
Recently, in a speech to the Council of the Law Society, Mr Justice Kelly said that he expected that new rules should bring an end to the sort of "trial by ambush" which tends to plague many court proceedings this is where counsel for one party, or other introduces evidence during the course of the trial with the aim of throwing the opposition off guard. The plan is to introduce "case management" where both sides would appoint so-called "plenipotentiaries" with the authority to agree certain matters on their clients' behalf prior to the opening of the trial.
This is important as it means that those attending the case conferences will be expected to be familiar with the case and not junior lawyers who may want to seek an adjournment of the case because they do not have instructions.
According to Judge Kelly, "there would be an early definition of issues and discovery (of documents) would be sharp, focused and defined." The judge should also have the authority to stay proceedings where he, or she believes that matters could be settled through so-called alternative dispute resolution.
"While there would be a certain amount of front loading of expense, trials would be shorter, or would become unnecessary," he told the Law Society.
This proposal fits in with recent suggestions by Justice Minister Michael McDowell that there should be greater resort to mediation across the legal system, with the aim of curbing the explosion in litigation.
It is expected that the Commercial Court will roll out its services on a staged basis, not least because it will occupy limited space to begin with.
