Civil Practice Course Manual PDF - King's Inns 2024-2025

Civil Practice Course Manual © The Honorable Society of King’s Inns 2024-2025 © The Honorable Society of King’s Inns 2024-2025 All course materials are the copyright of King’s Inns and may be used only in connection with the course; use of course materials for any other purpose, or the sha...

Civil Practice Course Manual © The Honorable Society of King’s Inns 2024-2025 © The Honorable Society of King’s Inns 2024-2025 All course materials are the copyright of King’s Inns and may be used only in connection with the course; use of course materials for any other purpose, or the sharing or distribution of course materials, is strictly prohibited and constitutes an offence against discipline and is an actionable breach of King’s Inns’ intellectual property rights. © The Honorable Society of King’s Inns 2024-2025 © The Honorable Society of King’s Inns 2024-2025  Civil Practice Course Manual CHAPTER 1 LIMITATION 1 PART 1 GENERAL PRINCIPLES AND THE PRINCIPAL PERIODS 1 1. BACKGROUND AND RATIONALE 1 2. GENERAL PRINCIPLES 1 3. THE RUNNING OF TIME AND DISABILITY 2 4. THE PRINCIPAL LIMITATION PERIODS. 3 PART 2 ACCRUAL OF THE CAUSE OF ACTION AND ISSUES SPECIFIC TO PARTICULAR CATEGORIES 5 5. SIMPLE CONTRACT AND CONTRACTS UNDER SEAL 5 6. ACTIONS FOUNDED IN TORT 5 7. ACTIONS FOR THE RECOVERY OF LAND 8 8. LACHES 8 PART 3 MISCELLANEOUS: DEATH, FRAUD & MISTAKE, COUNTERCLAIMS 9 9. DEATH 9 10. FRAUD AND MISTAKE 10 11. COUNTERCLAIMS 11 12. CONCLUSION 11 CHAPTER 2 PARTIES TO ACTIONS 13 1. THE IDENTITY OF NECESSARY PARTIES 13 2. ACTIONS AGAINST THE STATE 13 3. THE ATTORNEY GENERAL AS A PARTY 14 4. ACTIONS BY AND AGAINST PARTNERSHIPS 15 5. ACTIONS AGAINST LIMITED LIABILITY PARTNERSHIPS (LEGAL SERVICES) 15 6. PERSONS USING A BUSINESS NAME 16 7. ACTIONS BY AND AGAINST ESTATES AND TRUSTS 16 8. ACTIONS BY AND AGAINST UNINCORPORATED ASSOCIATIONS 16 9. REPRESENTATIVE ACTIONS 17 10. CLASS ACTIONS 18 11. ACTIONS BY AND AGAINST MINORS 18 12. ACTIONS BY AND AGAINST A PERSON WHO LACKS CAPACITY 19 13. O’BYRNE LETTERS 20 CHAPTER 3 COSTS, INITIATING LETTER AND LODGMENTS 23 PART 1 COSTS 23 1. GENERAL PRINCIPLES 23 2. COSTS CONSEQUENCES OF COMMENCING A CLAIM IN A HIGHER COURT / DIFFERENTIAL COSTS ORDERS 26 3. ADJUDICATION OF COSTS AND INDEMNITY PRINCIPLE 30 4. COSTS ORDERS COMMONLY MADE AND THEIR MEANING 30 5. COSTS AND SETTLEMENT 31 6. LEGAL AID 32 © The Honorable Society of King’s Inns 2024-2025 PART 2 INITIATING LETTERS 35 7. INITIATING LETTERS 35 PART 3 LODGMENTS 37 8. OUTLINE 37 9. TIME LIMITS IN HIGH COURT ACTIONS TO WHICH SECTION 1(1) OF THE COURTS ACT 1988 DOES NOT APPLY 37 10. SECTION 1 (1) COURTS ACT 1988 38 11. COSTS CONSEQUENCES 39 12. TRIAL JUDGE 40 13. LODGMENTS (CIRCUIT COURT) 40 14. DEFENCE OF TENDER BEFORE ACTION 41 15. OFFERS OF PAYMENT IN LIEU OF LODGMENT 41 16. CALDERBANK LETTERS 42 CHAPTER 4 PLEADINGS, PRACTICE & PROCEDURE 45 PART 1 INITIATION OF PROCEEDINGS 45 1. THE HIGH COURT 45 2. THE CIRCUIT COURT 48 3. THE DISTRICT COURT 50 4. PERSONAL INJURIES ACTIONS 50 5. ORDER 122 RULES OF THE SUPERIOR COURTS - TIME 51 6. DRAFTING MATTERS - PLEADINGS 53 7. DRAFTING SKILLS GUIDE: STATEMENT OF CLAIM / CIVIL BILL / SUMMONS 87 8. AFFIDAVITS 88 9. DRAFTING – EX-PARTE DOCKETS / NOTICE OF MOTIONS/ AFFIDAVITS 94 10. DRAFTING SKILLS GUIDE: MOTION/EX-PARTE DRAFTING SKILLS GUIDE 102 PART 2 SERVICE 105 11. INTRODUCTION 105 12. THE HIGH COURT 105 13. THE CIRCUIT COURT 115 14. THE DISTRICT COURT 116 15. DRAFTING – SUBSTITUTED SERVICE / SERVICE OUTSIDE THE JURISDICTION 119 PART 3 RENEWAL OF INITIATING DOCUMENTS 127 16. INTRODUCTION 127 17. THE HIGH COURT – RENEWAL OF SUMMONS 127 18. THE CIRCUIT COURT 128 19. THE DISTRICT COURT 129 20. DRAFTING - RENEWAL OF INITIATING DOCUMENTS 131 PART 4 ENTERING AN APPEARANCE 133 21. INTRODUCTION 133 22. THE HIGH COURT 134 23. THE CIRCUIT COURT 136 24. THE DISTRICT COURT 137 PART 5 DEFENCE AND COUNTERCLAIM 139 25. DEFENCE 139 26. COUNTERCLAIM 141 27. INDEMNITY AND CONTRIBUTION 141 28. THE HIGH COURT – DEFENCE, ORDER 21 RSC 141 © The Honorable Society of King’s Inns 2024-2025 29. THE CIRCUIT COURT – DEFENCE, ORDER 15, CCR 143 30. THE DISTRICT COURT – DEFENCE, ORDER 42 DCR 143 31. PERSONAL INJURIES ACTIONS - DEFENCE 144 32. DRAFTING – DEFENCE/COUNTERCLAIM 145 33. DRAFTING SKILLS GUIDE: DEFENCES 152 PART 6 DEFAULT OF PLEADINGS 153 34. INTRODUCTION 153 35. COSTS 153 36. THE HIGH COURT 154 37. THE CIRCUIT COURT 158 38. THE DISTRICT COURT 160 39. DRAFTING – DEFAULT OF PLEADINGS 163 PART 7 FURTHER AND BETTER PARTICULARS 167 40. INTRODUCTION 167 41. PARTICULARS OF CLAIM OR DEFENCE 167 42. THE HIGH COURT 168 43. THE CIRCUIT COURT 169 44. THE DISTRICT COURT 169 45. PERSONAL INJURIES ACTIONS 170 46. DRAFTING - FURTHER AND BETTER PARTICULARS 171 PART 8 THIRD PARTY PROCEDURE 173 47. BASIC PRINCIPLES 173 48. THE HIGH COURT 174 49. THE CIRCUIT COURT 176 50. THE DISTRICT COURT 176 51. DRAFTING - THIRD PARTY PROCEDURE 177 PART 9 PERSONAL INJURIES LITIGATION 179 52. INTRODUCTION 179 53. THE PERSONAL INJURIES RESOLUTION BOARD ACTS 2003 TO 2022 179 54. THE CIVIL LIABILITY AND COURTS ACT 2004 187 55. DRAFTING - PERSONAL INJURIES LITIGATION 193 PART 10 INTRODUCTION TO FAMILY LAW PROCEEDINGS: JUDICIAL SEPARATION & DIVORCE 207 56. JUDICIAL SEPARATION 207 57. DIVORCE 213 58. ANCILLARY RELIEFS – JUDICIAL SEPARATION & DIVORCE 217 59. SEPARATION AGREEMENTS 223 PART 11 DOMESTIC VIOLENCE AND VIOLENCE AGAINST WOMEN 237 60. INTRODUCTION 237 61. NON-LEGISLATIVE DOMESTIC MEASURES TO COMBAT DOMESTIC & GENDER BASED VIOLENCE 247 62. THE ISTANBUL CONVENTION 247 PART 12 AMENDMENT OF PLEADINGS 255 63. INTRODUCTION 255 64. THE HIGH COURT 255 65. THE CIRCUIT COURT 261 66. THE DISTRICT COURT 261 67. DRAFTING 263 © The Honorable Society of King’s Inns 2024-2025 CHAPTER 5 SUMMARY SUMMONS AND SUMMARY JUDGMENT 265 PART 1 HIGH COURT - SUMMARY SUMMONS 265 1. OUTLINE AND AVAILABILITY OF THE PROCEDURE 265 2. A CLAIM FOR A LIQUIDATED SUM 265 3. POSSESSION CLAIMS 266 4. ACCOUNT 266 5. MODE OF BRINGING THE CLAIM 266 6. THE PROCEDURE (JUDGMENT IN THE CENTRAL OFFICE) 267 7. JUDGMENT IN THE MASTER’S COURT 267 8. HEARING (MASTER’S COURT) 267 9. HEARING (JUDGE’S LIST) 268 PART 2 SUMMARY JUDGMENT IN THE CIRCUIT COURT/DISTRICT COURT 271 10. SUMMARY JUDGMENT – CIRCUIT COURT 271 CHAPTER 6 INJUNCTIONS 273 PART 1 GENERAL 273 1. DEFINITIONS 273 2. NATURE 274 3. INTERLOCUTORY INJUNCTIONS 274 4. WHERE THE BALANCE OF CONVENIENCE TEST DOES NOT APPLY 277 5. PRINCIPLES SPECIFIC TO THE GRANTING OF MANDATORY INJUNCTIONS 278 PART 2 MAREVA INJUNCTIONS 281 6. GENERAL 281 7. GUIDELINES 281 8. TERMS AND EFFECT ON THIRD PARTIES 282 9. “WORLDWIDE” MAREVA ORDERS 283 10. ANCILLARY ORDERS 283 11. EUROPEAN ACCOUNT PRESERVATION ORDER (EAPO) 283 PART 3 ANTON PILLER AND BAYER ORDERS 285 12. ANTON PILLER ORDERS 285 13. TERMS 285 14. LIMITATIONS 286 15. THE RESPONDENT’S OPTIONS 286 16. BAYER ORDERS 286 PART 4 INTERLOCUTORY INJUNCTIONS: PROCEDURAL STEPS 287 17. MODE OF BRINGING APPLICATIONS 287 18. MAREVA AND ANTON PILLER ORDERS 287 19. PROOFS REQUIRED WHEN SEEKING THIS TYPE OF ORDER 288 20. COSTS 288 21. DRAFTING THE TERMS OF AN INJUNCTION 289 © The Honorable Society of King’s Inns 2024-2025 CHAPTER 7 PRIVILEGE 293 1. INTRODUCTION 293 2. TYPES OF PRIVILEGE 293 3. PRIVILEGE AND PROCEDURE 316 CHAPTER 8 DISCOVERY 319 PART 1 GENERAL PRINCIPLES 319 1. WHAT IS DISCOVERY AND WHAT ARE ITS AIMS AND PURPOSES? 319 2. WHAT LIMITATIONS EXIST ON THE GRANTING OF DISCOVERY? 320 3. HIGH COURT: AT WHAT STAGE DOES DISCOVERY TAKE PLACE? 321 4. WHAT TEST WILL BE APPLIED BY THE COURT WHEN DECIDING WHETHER TO GRANT DISCOVERY ? 321 5. DOCUMENTS IN THE POSSESSION, POWER OR PROCUREMENT OF A PARTY 326 6. THE CIRCUIT COURT 328 7. THE DISTRICT COURT 329 PART 2 DISCOVERY – PROCEDURE 331 8. VOLUNTARY DISCOVERY (HIGH COURT) ORDER 31 RSC 331 9. COMPULSORY DISCOVERY 332 PART 3 FAILURE TO MAKE DISCOVERY 335 10. FAILURE TO MAKE DISCOVERY 335 PART 4 FURTHER AND BETTER DISCOVERY 337 11. ON WHAT GROUNDS WILL FURTHER AND BETTER DISCOVERY BE ORDERED? 337 12. PROCEDURE FOR FURTHER AND BETTER DISCOVERY 338 PART 5 SPECIAL TYPES OF ORDERS FOR DISCOVERY 339 13. DISCOVERY FROM NON-PARTIES 339 14. DISCLOSURE OF INFORMATION BY A NON-PARTY 340 15. DISCOVERY TO FIND OUT THE IDENTITY OF AN ALLEGED WRONGDOER 342 16. DISCOVERY IN JUDICIAL REVIEW 343 PART 6 THE MASTER’S COURT 345 17. WHO IS THE MASTER AND WHAT ARE HIS FUNCTIONS? 345 18. THE MASTER AND DISCOVERY 347 PART 7 COUNTY REGISTRAR 349 19. ORDER 18 CIRCUIT COURT RULES 349 CHAPTER 9 INSPECTION OF DOCUMENTS 353 1. WHAT IS INSPECTION? 353 2. INSPECTION – PROCEDURE 353 3. ORDER 31 RULE 18(2) AND THE TEST FOR WHAT IS NECESSARY EITHER FOR DISPOSING FAIRLY OF THE CAUSE OR MATTER OR FOR SAVING COSTS 354 4. INSPECTION AND RULE 20 AND RULE 21 357 © The Honorable Society of King’s Inns 2024-2025 CHAPTER 10 INTERROGATORIES 359 1. THE PURPOSE OF INTERROGATORIES 359 2. PROCEDURE RELATING TO INTERROGATORIES 361 3. INTERROGATORIES MUST BE “NECESSARY” 363 4. INTERROGATORIES MUST RELATE TO THE ISSUES IN THE PLEADINGS 364 CHAPTER 11 OPINION AND EXPERT EVIDENCE IN CIVIL LITIGATION 367 1. GENERAL RULE 367 2. EXPERT EVIDENCE 367 3. MATTERS WITHIN THE KNOWLEDGE OF THE COURT 367 4. WHAT CONSTITUTES AN “EXPERT” WITNESS? 368 5. HEARSAY AND EXPERT WITNESSES 368 6. EXPERT EVIDENCE AND TRIAL 368 7. NON-EXPERT OPINION EVIDENCE 369 8. ASSESSORS 369 9. EXPERT EVIDENCE IN PERSONAL INJURIES CASES 369 CHAPTER 12 DISCLOSURE OF EXPERT REPORTS INVOLVING CLAIMS FOR PERSONAL INJURIES 371 1. WHY WAS DISCLOSURE OF EXPERT REPORTS INTRODUCED? 371 2. WHERE ARE THE DISCLOSURE PROVISIONS FOUND? 371 3. DO THE RULES SUPERSEDE THE NECESSITY TO SEEK DISCOVERY? 371 4. WHAT IS THE EFFECT OF THE RULES? 371 5. DO THE RULES APPLY TO ALL EXPERTS AND WITNESSES? 372 6. WHO IS AN EXPERT? 372 7. WHAT MUST A PARTY DISCLOSE? 372 8. WHAT NEED NOT BE DISCLOSED? 372 9. WHEN MUST REPORTS BE EXCHANGED? 373 10. IS THERE A CONTINUING OBLIGATION OF DISCLOSURE? 373 11. CAN A PARTY WITHDRAW AN EXPERT REPORT? 374 12. CAN A PARTY REFUSE TO DISCLOSE A REPORT? 374 13. WHAT IS THE EFFECT OF NON-COMPLIANCE WITH DISCLOSURE OF EXPERT REPORTS 374 14. CAN EVIDENCE BE ADMITTED WHICH HAS NOT BEEN DISCLOSED? 374 CHAPTER 13 SECURITY FOR COSTS 375 1. HIGH COURT - ORDER 29 OF THE RULES OF THE SUPERIOR COURTS / SECURITY FOR COSTS AND INDIVIDUAL PLAINTIFFS 375 2. SUPREME COURT APPEAL – SECURITY FOR COSTS 377 3. COURT OF APPEAL – SECURITY FOR COSTS 378 4. SECURITY FOR COSTS, THE INDIVIDUAL PLAINTIFF AND THE EU 378 5. CORPORATE PLAINTIFFS / SECURITY FOR COSTS /SECTION 52 OF THE COMPANIES ACT 2014 (PREVIOUSLY SECTION 390, COMPANIES ACT 1963) 380 6. SECURITY FOR COSTS, THE CORPORATE PLAINTIFF AND THE EU 384 7. SECURITY FOR COSTS – AMOUNT? 384 © The Honorable Society of King’s Inns 2024-2025 8. FAILURE TO PROVIDE SECURITY – POWER TO DISMISS 385 9. SECURITY FOR COSTS AND DISCOVERY 385 10. THE CIRCUIT COURT – SECURITY FOR COSTS 388 11. AFFIDAVIT TO GROUND THE APPLICATION – DEPONENT 389 12. THE DISTRICT COURT – SECURITY FOR COSTS 389 CHAPTER 14 ENFORCEMENT OF JUDGMENTS 391 1. INTRODUCTION 391 2. ORDER OF GARNISHEE: ORDER 45 RSC ORDER 38 CCR 391 3. JUDGMENT MORTGAGE 394 4. APPOINTMENT OF RECEIVER BY WAY OF EQUITABLE EXECUTION 398 5. ATTACHMENT & COMMITTAL (ORDER 44 RSC) 400 6. INSTALMENT ORDERS (ORDER 51A OF THE DISTRICT COURT RULES) 401 7. JURISDICTION AND RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS (WHERE JUDGMENT HAS BEEN OBTAINED IN A CONTRACTING STATE) 403 8. CHOICE OF COURT (HAGUE CONVENTION) ACT 2015 403 CHAPTER 15 TRIAL 405 1. INTRODUCTION 405 2. PRE-TRIAL MATTERS AND ADVICE ON PROOFS 405 3. PLACE OF TRIAL 407 4. NOTICE OF TRIAL: SEE RSC ORDER 36 407 5. SETTING DOWN A CASE FOR TRIAL 408 6. CALLOVER OF CASES 410 7. MODES OF TRIAL WITHIN A TRIAL (HIGH COURT) 410 8. PRELIMINARY LEGAL ISSUES 410 9. WHO WILL HEAR THE CASE? 411 10. PUBLIC JUSTICE 412 11. WITNESSES 413 12. THE SEQUENCE OF TRIAL 416 13. APPLICATION FOR A NON-SUIT 419 14. ADJOURNMENT 419 15. NON APPEARANCE 419 CHAPTER 16 APPEAL/EIRE CONTINENTAL TRADING COMPANY LTD V. CLONMEL FOODS LIMITED IR 170 421 1. APPLICATION OF EIRE CONTINENTAL PRINCIPLES – SOME CASE LAW: 427 2. LENGTH OF TIME TO APPEAL 428 © The Honorable Society of King’s Inns 2024-2025 CHAPTER 17 JUDICIAL REVIEW APPLICATIONS: COURT PROCEDURE 431 PART 1 BASIC PRINCIPLES 431 1. INTRODUCTION 431 2. BODIES AND DECISIONS SUBJECT TO JUDICIAL REVIEW 432 3. REMEDIES AVAILABLE IN JUDICIAL REVIEW 434 PART 2 APPLICATION FOR LEAVE 437 4. APPLICATION FOR LEAVE/ ORDER 84 FILTER MECHANISM 437 5. DISCRETIONARY NATURE OF REMEDIES 444 PART 3 PRACTICE AND PROCEDURE IN JUDICIAL REVIEW APPLICATIONS 445 6. INTRODUCTION 445 7. OBTAINING LEAVE 445 8. PROCEDURE WHERE LEAVE HAS BEEN GRANTED 447 9. ORDER 84 OF THE RULES OF THE SUPERIOR COURTS 451 10. PRACTICE DIRECTIONS 463 PART 4 IMPACT OF THE COMMERCIAL COURT ON JUDICIAL REVIEW PROCEEDINGS 477 11. HC93 - COMMERCIAL LIST (PRACTICE DIRECTION) 478 CHAPTER 18 NEGOTIATION 481 1. CASE PREPARATION 481 2. INTRODUCTION TO STRATEGY AND TACTICS 487 3. NEGOTIATION SKILLS GUIDE 491 4. NEGOTIATION SKILLS GUIDE IN DETAIL 492 5. EXTRACT FROM THE CODE OF CONDUCT OF THE BAR OF IRELAND 495 See separate links on Moodle to SI254/2016: Rules of the Superior Courts (Conduct of Trials) 2016 [in operation 1/10/2016] SI255/2016: Rules of the Superior Courts (Chancery and Non-Jury Actions and other designated proceedings: Pre-Trial Procedures) 2016. [Not in operation as yet] Notice on Courts.ie re SI 255 of 2016 © The Honorable Society of King’s Inns 2024-2025  1 CHAPTER 1 LIMITATION PART 1 GENERAL PRINCIPLES AND THE PRINCIPAL PERIODS 1. BACKGROUND AND RATIONALE Limitation is the creation of statute. The common law did not provide for any limit on the period in which legal claims might be brought. Equity on the other hand did introduce (and maintains) a degree of control by virtue of the doctrine of laches. The principal legislation governing the limitation of actions is the Statute of Limitations, 1957 which will be referred to in this text as “the Act”, as amended by the Statute of Limitations (Amendment) Act 1991 and the Statute of Limitations (Amendment) Act 2000. Many other Acts, such as the Civil Liability Act 1961, the Liability for Defective Products Act 1991, and the Civil Liability and Courts Act 2004 also prescribe limitation periods. This chapter will deal with the limitation periods for some of the more common types of actions and the key factors involved in identifying the appropriate limitation period for an action. The concept of limitation is founded on public policy. Thus, public policy dictates that parties to litigation should have a degree of certainty as to their position and in particular prospective Defendants should not be subject to possible claims remaining outstanding against them for inordinately long periods of time. Equally a long period of time between accrual of a cause of action and the trial is likely to have a detrimental effect on the memory of witnesses with the result that a just and efficient outcome is prejudiced. Accordingly, the legislature has provided for fixed and readily identifiable periods for the commencement of most actions save for those which seek purely equitable remedies to which, however, the doctrine of laches applies. Limitation is of fundamental importance to practitioners. A thorough understanding of its operation is an essential pre-requisite to competent practice. 2. GENERAL PRINCIPLES Limitation bars not the right but the remedy. Thus, the mere fact that the limitation period has expired does not mean that the cause of action has been extinguished. This has very important consequences, for example: Limitation must be pleaded as a specific defence by the Defendant. Where the limitation period has expired, if the Plaintiff can enforce his right other than by action (for example where a lien has arisen) he is free to pursue his right in that manner. This is further illustrated in relation to appropriation of debts. Thus where, for example, a Defendant owes to the Plaintiff two separate debts one of which is statute barred and the other which is not and pays some of the money due without specifically stating that it is paid in satisfaction of the non statute-barred debt, the Plaintiff is entitled to appropriate that money (subject to Section 69 (2) of the Act) in satisfaction of the statute-barred debt and to pursue the debt which is within the limitation period by way of action. The expiry of the © The Honorable Society of King’s Inns 2024-2025  2 limitation period does not extinguish the debt merely the Plaintiff’s means to recover it by way of court action. Note of caution: if initiating a claim close to the end of the time limited by statute a plaintiff should then proceed with expedition once proceedings have commenced – see McNamee v. Boyce IESC 2017 24 where the Supreme Court affirmed the decision of the Court of Appeal dismissing the plaintiff’s claim on grounds of inordinate and inexcusable delay in the manner in which the plaintiff pursued her claim. 3. THE RUNNING OF TIME AND DISABILITY As a general rule time starts to run for the purposes of limitation on the accrual of the cause of action or, in certain circumstances discussed below, from the date of knowledge of the cause of action. Time ceases to run once proceedings have been commenced (that is to say upon issue of the originating process). This is not true of cases of disability on the basis that the person in whom the cause of action is vested ought to be capable of realising that the cause of action has arisen and of acting upon it. Thus Section 48 (1) lists the categories of persons who are, for the purposes of the Act, under a disability: (i) infants; (ii)persons of unsound mind. Section 49 (1) provides the operative provisions in respect of persons acting under a disability. Thus if upon the day on which the cause of action accrued the person to whom it accrued was under a disability, the action may be brought, notwithstanding the expiry of the principal limitation period, at any time before the expiration of six years (two in the case of personal injuries) from the date upon which the person under the disability either ceased to be under a disability or died, whichever first occurred. It would seem, given the wording of the section, that where the disability arose on the day after the date of accrual the section would not apply. However, where an accident gave rise to both the cause of action and the disability the section applies (see Rohan v. Bord na Mona 2 IR 425 and Kirby v. Leather 1965 2 WLR 318). Thus, a person will be under a disability where the disability pre-dated or occurred on the same day as the cause of action but not if it occurred thereafter. The Statute of Limitations (Amendment) Act 2000 provides that in cases of sexual abuse committed at a time when the Plaintiff had not yet reached full age or cases where the claim is for negligence or breach of duty against some body or person who was not the abuser, the Plaintiff shall be under a disability while he or she is suffering from any psychological injury that was caused in whole or part by the abuser and is of such significance that his or her will or ability to make a reasoned decision to bring such an action is impaired (inserted at Section 48A of the Act). Note: Time to be disregarded in specific instances Note: section 50, Personal Injuries Resolution Board Acts 2003 to 2022in reckoning the time period for proceedings to which the Act applies, the period beginning on the date of the making of an application for an assessment and ending six months after the date of the issue of an authorisation shall be disregarded in so far as it relates to one or more of the respondents named at the time of the application. This is contingent upon provision of the required information listed in sections 3(b) and 3(c) of the Personal Injuries Resolution Board Acts 2003 to 2022. © The Honorable Society of King’s Inns 2024-2025  3 Note: section 18, Mediation Act 2017 in reckoning the time period for proceedings to which the Act applies, for the purpose of a limitation period specified by the Statutes of Limitations, the period beginning on the day on which an agreement to mediate is signed and ending on the day which is 30 days after either (a) a mediation settlement is signed by the parties and the mediator, or (b) the mediation is terminated, whichever first occurs, shall be disregarded. 4. THE PRINCIPAL LIMITATION PERIODS. Cause of Action Period Section Simple contract 6 years 11 (1) (a) Contract under seal 12 years 11 (5) (specialty) Tort (excluding personal 6 years 11 (2) injury) Personal Injury 2 years 3 (1) 1991 Act as amended by section 7 of the Civil Liability and Courts Act 2004. Clinical Negligence* Currently 2 years (see as above – 1991 Act. Personal Injury above). To change to 3 years* *S. 221, Legal Services Regulation Act 2015 amends *Section is not commenced at Statute of Limitation time of writing (Amendment) Act 1991. Defamation 1 year (or such longer S.38, Defamation Act 2009 period as the court may direct not exceeding 2 years) Recovery of land 12 years (30 years in the 13 (2) case of the State) Claim to personal estate of 6 years 45 (1) deceased person (as beneficiary) Claims for non-fraudulent 6 years 43 (1) breach of trust The day upon which the cause of action accrues is to be included in computing the above periods (see McGuinness v. Armstrong Patents Ltd IR 289). © The Honorable Society of King’s Inns 2024-2025  4 © The Honorable Society of King’s Inns 2024-2025  5 PART 2 ACCRUAL OF THE CAUSE OF ACTION AND ISSUES SPECIFIC TO PARTICULAR CATEGORIES 5. SIMPLE CONTRACT AND CONTRACTS UNDER SEAL The cause of action accrues in contract on the date of the breach of the contract (see Irish Equine Foundation Limited v. Robinson 2 IR 442) and time for the purposes of the Statute of Limitations runs from the time of the occurrence of that breach. Each contract will, of course be different, and thus the question of breach will depend upon the nature of the obligation and how it is to be performed. Section 56, however, in effect operates to extend the primary limitation period in cases of debt where the debtor acknowledges the debt. Thus, where the acknowledgement that a debt is due is made in writing and signed by the person acknowledging it, the cause of action is deemed to accrue on the date of the acknowledgement and not before. Similarly, Section 65 (1) provides that where any right of action to recover a debt has accrued and the debtor makes a part payment towards that debt, the cause of action shall be deemed to have accrued on the date of the part payment. Thus, it will be seen that in cases of debt although (being based on contract) subject to the primary limitation periods in question, the cause of action will be deemed to have accrued on the date of acknowledgement or part payment even if upon that date the primary limitation period has expired. 6. ACTIONS FOUNDED IN TORT In torts which are actionable in themselves and without proof of damage (for example assault, trespass to land or goods) time will run from the date of the act complained of. In torts which are actionable only upon actual damage the cause of action is complete, and time will thus begin to run only when the damage occurs (Hegarty v. O’Loughran 1 IR 148). Accordingly in the latter type of action while there will be many cases (particularly personal injuries cases) where the act complained of and the damage caused by it occurs at the same time, there will be others where there is a gap between the breach of duty and the loss caused by it. The question as to when damage occurs and thus when time begins to run is, as can be seen from the body of case law surrounding the question, not always easy to determine. In Hegarty v. O’Loughran the Supreme Court held that time did not begin to run until a provable injury capable of attracting compensation occurred to the Plaintiff. This gives rise to a problem, from the Plaintiff’s perspective, in relation to claims where damage has occurred, but which has remained latent or not discovered until the limitation period has expired (Cartledge v. E. Jopling & Sons Limited, Pirelli General Cable Works Ltd v. Oscar Faber & Partners and Tuohy v. Courtney (No.2)1963 AC 758). The 1991 Act was introduced to reduce the unfairness to a Plaintiff who fails to discover the existence of a claim until the primary limitation period has expired but only in relation to © The Honorable Society of King’s Inns 2024-2025  6 claims for personal injuries. The 1991 Act provided that the limitation period will run either from the date of accrual or from the “date of knowledge” whichever is the later. What constitutes knowledge for the purpose of the 1991 Act is set out in Section 2 (1) (a) to (e) and a Plaintiff must possess them all before he is fixed with knowledge. Subsections (2) and (3) have the effect of imputing to the Plaintiff knowledge of which he might reasonably have been expected to be aware from facts ascertainable by him with the help of an expert which it is reasonable for him to seek (Gough v. Neary 3 IR 92, Bolger v. O’Brien 2 IR 431). He is not, however, fixed with knowledge of a fact which can be ascertained only with the help of such an expert so long as he has taken all reasonable steps to obtain and where appropriate to act on the advice. The Plaintiff’s date of knowledge is only relevant to a claim for damages in respect of personal injuries as specified in Section 3 of the Statute of Limitations (Amendment) Act 1991. The Supreme Court considered the date of knowledge in the case of O’Sullivan v. Ireland & Ors IESC 33. The majority judgment was delivered by Finlay Geoghegan J, with O’Donnell J dissenting. In considering Section 2 of the 1991 Act, Finlay Geoghegan J at paragraphs 28 to 30 of the judgment suggests a 2 or 3 step test. At paragraph 32: The advantage, in practical terms, of the two or three step approach I am suggesting in determining a plaintiff’s date of knowledge for the purposes of s. 2 of the 1991 Act and distinguishing between actual knowledge and constructive knowledge, if necessary, is that the Court in the first step, in relation to the date of actual knowledge, is not required to consider issues such as whether or not a plaintiff was put on inquiry of certain facts or whether the plaintiff acted reasonably in ascertaining facts or seeking expert advice. Those are issues which may have to be considered but only if, a court is required to determine the date upon which a plaintiff is to be imputed with first having constructive knowledge, i.e. knowledge of facts he might reasonably have been expected to acquire in accordance with subs. (2). The issues which a court has to consider in determining the date upon which a plaintiff first had actual knowledge are all questions of fact as to what a plaintiff did or did not know on a given date. The limitation period for actions arising in tort, other than claims for damages in a personal injuries action, is six years from the date of accrual of the cause of action (Section 11(2) 1957 Act). In such cases the limitation period begins to run when the damage has been caused by the Defendant’s wrongful act even where the Plaintiff is unaware of the damage. In Irish Equine Foundation Limited v. Robinson IR 442, Geoghegan J was dealing with the construction of an equine centre where a final certificate had issued in November 1987 and proceedings were issued in January 1996. The plaintiffs claimed that as there had been no manifestation of damage until the leaks occurred the limitation period only ran from that time. However, it was held that the defects in the building could have been detected by experts at any stage after the construction of the building. The defects had manifested themselves from the time the building had been erected and the statutory period commenced from then. Geoghegan J commented as follows: It is obvious from those dates that the action in contract is clearly statute barred. It is trite law that the limitation period commences on the date of © The Honorable Society of King’s Inns 2024-2025  7 the breach of contract and not on the date when the damage is caused. In other words, a breach of contract per se gives rise to a cause of action. The only question which I have to consider, therefore is whether the action in so far as it is founded on tort, (i.e. the tort of negligence) is likewise statute barred. The contention of the plaintiff is that there was no damage, or at least no damage manifested itself, until the ingress of water through the ceiling of the centre in late 1991. If the period commenced on that date then, quite obviously, the action in so far as it is founded on tort is not statute barred. It is common case that discoverability, as such, cannot be relevant in considering what is the appropriate commencement date in respect of the limitation period. On this point at least, the view of the House of the Lords taken in Pirelli v. Oscar Faber and Partners 2 A.C. 1, represents Irish Law also. This is quite clear from the decision of the Supreme Court in Hegarty v. O’Loughran 1 I.R. 148, even though that particular case dealt with personal injuries and not damage to a building. The reasoning contained in the several judgments in Hegarty v. O’Loughran and the criticism voiced of the decision of Carroll J. in Morgan v. Park Development I.L.R.M. 156, indicate beyond doubt that the Supreme Court rejects the discoverability test no matter what the nature of the damage claimed is. In Hegarty v. D & S Flanagan Brothers Ballymore Limited & Anor. IEHC 263, Birmingham J, 31st May 2013, the High Court granted an order striking out a claim as against an engineer, where cracking was discovered in a house in 2001 and the engineer was joined to the action in 2012, on grounds that the claim was clearly statute barred and there were no circumstances in which the defendant would be debarred from relying on the limitation period. Birmingham J citing the above decision in Irish Equine Foundation stated: In my view the case law in this jurisdiction points to a very clear, albeit very harsh, conclusion. The time-limit on negligence actions begins to accrue on the date on which damage manifests itself, and not from the date on which the damage is discovered. Brandley v. Deane IECA 54 is a recent case concerning the accrual of a cause of action in negligence where the Plaintiff was seeking relief in respect of property damage. Ryan P. in the Court of Appeal stated at Paragraph 19 ….the parties are not in dispute about some fundamental points. It is agreed that the test is not based on discoverability; that is appropriate to personal injury actions by reason of the amendment of the Statute of Limitations, but it does not arise in regard to property damage of this kind. The question is when did the plaintiffs suffer damage by reason of the negligence of the defendants? When was the tort of negligence complete?” The matter was appealed to the Supreme Court who were asked to determine the question - when does time run for the purpose of the Statute of Limitations in property damage claims? See Brandley v. Deane 2 IR 741- the question was answered by McKechnie J as follows (at paragraphs 110/111): ….if one is to consider the dates of occurrence,manifestation and discoverability as three distinct concepts, which is how they were treated in Hegarty v. O’Loughran and is how I believe they ought to be treated, then the clear answer to the question posed by the Court may be given. © The Honorable Society of King’s Inns 2024-2025  8 In my view, time begins to run from the date of manifestation of damage, which means it runs from the time that the damage was capable of being discovered and capable of being proved by the plaintiff. This was the conclusion reached in respect of personal injuries claims in Hegarty v. O’Loughran 1 I.R. 148. The case law since then is ambiguous as to whether such a commencement date should or indeed has been transposed to property damage claims. However, for the reasons articulated up to this point of the judgment, I am satisfied that the date of manifestation of damage is also the appropriate start point in property damage claims, and the 1957 Act should be construed accordingly. McKechnie J stated (as part of his summary at paragraph 139) …”from a reading of the case law, I understand “manifest” to mean the date on which damage is capable of being discovered and proved by a Plaintiff” Thus, in property damages cases time runs from date of manifestation of the damage - not from the discoverability of the latent defect but from the consequent damage caused by that latent defect. In Cantrell v. AIB IESC 71 (a case which concerned the negligent mis-selling of a financial product), the Supreme Court held that in such claims the limitation period only begins to run when the risk renders the product less valuable. The Court concluded (at paragraph 132) that damage for the accrual of a cause of action must "bear a close relationship to the layperson's understanding of that term. That is real actual damage, which a person would consider commencing proceedings for". Note: in the Cantrell v. AIB judgment O’Donnell J goes into some detail on the history/development of case law on accrual of a cause of action before dealing with the nature of the specific case before the court. 7. ACTIONS FOR THE RECOVERY OF LAND The effect of a failure on the part of a landowner dispossessed of his land to bring an action for its recovery within the limitation period is the extinguishment of his title. Time will run from the date upon which a person who has no title to the land enters into possession which is adverse to that of the owner. The landowner must thus commence proceedings within twelve years of the date of the adverse possession. Land is given a wide definition and includes any action for a declaration as to title and proceedings by a mortgagee for the delivery of possession of land by a mortgagor (but in the latter regard note the effect of acknowledgement and part payment of the debt as set out above). 8. LACHES Section 11 (9) excludes from the scope of the section any claim for specific performance of a contract or for an injunction or for other equitable relief but goes on to state that nothing © The Honorable Society of King’s Inns 2024-2025  9 in the subsection shall be construed as preventing a Court from applying by analogy any provision of this section in a similar manner to the corresponding enactment repealed by the Act (Nelson v. Rye 1 WLR 1378). Thus, while the Act does not specifically make provision for equitable claims the doctrine of laches continues to have effect in that field. Unlike statutory periods of limitation delay in itself is not enough to bar an equitable claim under the doctrine. The delay must be such that the Plaintiff is deemed to have acquiesced in the action complained of or that the delay has caused the Defendant to alter his position in reliance of the status quo. It should be noted that, given equity’s flexibility, there may be other circumstances arising which would make it unjust for the Plaintiff to institute proceedings after the delay and thus trigger the doctrine (JH v. WJH (Unreported, 20 December 1979 (HC)); Allcard v. Skinner (1887) 36 CH D 145; Lindsay Petroleum Co. v. Hurd (1874) LR 5 PC 221) Unlike the statutory provisions no fixed period of delay is recognised by the Courts although where possible or appropriate a statutory limitation period will be applied by way of analogy. PART 3 MISCELLANEOUS: DEATH, FRAUD & MISTAKE, COUNTERCLAIMS 9. DEATH All causes of action vested in a deceased person or maintainable against him at the date of his death survive for the benefit of his estate or against it as the case may be (see Civil Liability Act 1961, Sections 7 and 8). The limitation period itself (save as set out below in cases of action against the deceased’s estate) is not affected and continues as normal. Section 9 (2) of the Civil Liability Act 1961 provides, however, that no proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either: They were commenced within the appropriate limitation period and were pending as at the date of death, or They were commenced within the appropriate limitation period or within two years after death whichever period expires first. With regard to fatal Injuries Section 48, Civil Liability Act 1961 (as amended) provides that where the death of a person is caused by the wrongful act of another which would, but for that party’s death, have entitled him to bring an action in respect of the wrongful act the wrongdoer will be liable in damages to the dependants of the deceased. Such an action (and there can be only one) must be brought either within two years of the date of death or the date of knowledge of the person for whose benefit the action is brought whichever period is the later. The cause of action under Section 48, being one that can only accrue at the date of death of the deceased, cannot be one that becomes statute-barred before the date of death but is nonetheless interlinked See Hewitt v. The Health Service Executive 2 IR 649, Hogan J at paragraph 42: © The Honorable Society of King’s Inns 2024-2025  10 the plaintiff’s cause of action under s. 48 of the 1961 Act is a separate cause of action which is different from that which might have been maintained by his late wife immediately prior to her death, this cannot take from the fact that the two causes of action are nonetheless interlinked. It is clear from the language of s. 48(1) of the 1961 Act that the right to recover under s. 48 is dependent on showing that the deceased could have, but for death, successfully maintained that action and recovered damages in respect thereof. These conditions are simply not satisfied where the underlying cause of action is itself statute barred immediately prior to the death of the deceased. 10. FRAUD AND MISTAKE Any time limit fixed under the Act does not run in cases in which either the cause of action is based upon the fraud of the Defendant or his agent or where the cause of action has been concealed by the Defendant or his agent until the Plaintiff has either discovered the fraud or could, with reasonable diligence have discovered the fraud (McDonald v. McBain 1 IR 284; Heffernan v. O’Herlihy & Co. IEHC 211). Fraud, in this context, is given a wide definition and extends beyond the ambit of fraud or deceit at common law to include equitable fraud or unconscionable conduct (Kitchen v. Royal Air Force Association 1 WLR 563). This in turn generally involves circumstances which give rise to a fiduciary or special relationship but the extent to which such a relationship is required is not altogether clear from the authorities (Morgan v. Park Developments Limited 1983 ILRM 156). In short, the courts will look at each case on its facts and determine whether, in the circumstances which apply, the Defendant’s conduct is sufficiently unconscionable to prevent time running. Section 72 (1) provides that where the Plaintiff’s claim is for relief from the consequences of a mistake time does not begin to run until the Plaintiff has discovered his mistake or could have done so with reasonable diligence. It is vital to note that mistake in this context does not mean a mistake of the Plaintiff as to his rights. It has been held that mistake must be a vital part of the cause of action itself (although some commentators have criticised this interpretation as being unnecessarily restrictive and the point may not be settled). In this regard see Phillips-Higgins v. Harper 1 Q.B. 411 and Re Diplock Ch 465). For example, in a restitutionary claim to recover money paid under a mistake of fact time will not run until either the mistake was discovered or until the Plaintiff could, with reasonable diligence, have discovered the mistake. In Kearns & Fallon v. McCann Fitzgerald IEHC 85 Peart J at page 6 of the judgment stated as follows - Section 72 of the Act here is clearly intended to apply to a situation where a plaintiff seeks relief from the consequences of a mistake in the context for example of a contract entered into as a result of a mistake and where the action is seeking relief by way of rescission or rectification. The present action by the plaintiffs is an action for damages arising from an alleged negligent act by the defendants, and it is clearly only an action in tort to which the case referred to has no relevance. The alleged error by the defendants cannot be equated with a mistake in the context of s. 72 of the Act. © The Honorable Society of King’s Inns 2024-2025  11 11. COUNTERCLAIMS Any claim by way of set-off or counterclaim is deemed to be a separate action and to have been commenced upon the same date as the action in which such claims are pleaded (Section 6 of the Act). Thus, where a claim for damages raised by way of counterclaim arising out of the same incident as the Plaintiff’s claim, was not brought originally on service of the defence but by amendment after the primary period had expired, the claim was held not to be statute barred (Strick v. Tracey Unreported 10th June 1993 (HC)). 12. CONCLUSION This section is designed as a pathfinder only and accordingly covers basic concepts and the principal periods of limitation. It does not deal specifically with all causes of action (for example, employment, judicial review and trusts and succession matters). Students will therefore need to be familiar with the legislation and case law concerning limitation periods and be aware of the periods not dealt with. © The Honorable Society of King’s Inns 2024-2025  12 © The Honorable Society of King’s Inns 2024-2025  13 CHAPTER 2 PARTIES TO ACTIONS 1. THE IDENTITY OF NECESSARY PARTIES Clearly a Plaintiff must join every party necessary in order to ensure that the action is properly constituted. It is important not only that each party is properly identified but also correctly named in the action. In most cases it is not difficult to identify and name the correct party but there are many instances where the issue is less straightforward. The following sections identify the most common of these. The rules governing the joinder of parties to proceedings is governed by Order 15 of the Rules of the Superior Courts and Order 6 of the Rules of the Circuit Court, Order 43 District Court Rules. See the recent judgment of the Supreme Court in Hickey v. McGowan 2 IR 196 on inter alia vicarious liability, the joinder of parties and the consequences of failure to join the correct defendants to an action. While the case dealt with a range of legal issues in respect of the parties sued – of relevance here is that it dealt with Section 35(1)(i) of the Civil Liability Act 1961 which provides that, for the purpose of determining contributory negligence - “where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become statute barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer”. [emphasis added]. Thus, where a wrong has been committed against a Plaintiff by a number of concurrent wrongdoers and the Plaintiff, when bringing his action in respect of that wrong, does not sue one of them within the relevant statutory period, then the Plaintiff must bear that loss i.e. Section 35(1)(i) provides that the liability of that concurrent wrongdoer shall be deemed to be contributory negligence on the part of the Plaintiff. See also Kehoe v. RTE IEHC 340 in relation to Section 35(1)(i) and defamation proceedings. 2. ACTIONS AGAINST THE STATE Where the claim is against the State the proper Defendants are Ireland and the Attorney General. The Attorney General is joined as the Law Officer of the State and in order to facilitate proper service. It is only appropriate to bring an action against the Government where the wrong complained of arises out of an act or decision of the executive and the Government is being sued collectively. In this case there are two ways in which the parties may be identified: It is usual to name the following as Defendants: (1) The Taoiseach. (2) The Tánaiste. (3) Each Minister who is a member of the government should be named individually and according to his or her office and title. (4) The Attorney General. (5) Ireland. It is also permissible to name the Government of Ireland. © The Honorable Society of King’s Inns 2024-2025  14 Each Minister of the Government is a corporation sole with perpetual succession. Any proceedings taken by or against a Department of State are taken in the name of the appropriate Minister. As regards the defence forces, claims are generally made against the Minister for Defence, Ireland and the Attorney General save where the damage or loss arises in connection with a mechanically propelled vehicle in which case (by virtue of Section 59, Civil Liability Act 1961 as amended by SI 418/2011) the appropriate Defendant is the Minister for Public Expenditure and Reform (previously the Minister for Finance)). Similarly, where claims are brought against the An Garda Síochána or against a prison, Ireland and the Attorney General will be parties. However, in these cases the Commissioner of an Garda Síochána or the Governor of the relevant prison must be joined. The Minister for Justice may or may not be joined depending on whether the issues in the proceedings raise questions which fall within the remit of the Minister. Generally, practitioners must use their own judgment in determining whether or not to join the relevant Minister. Claims relating to schools or teachers should be brought against the Board of Management of a school and practitioners should think carefully as to whether it is appropriate to join the Minister for Education. The Minister for Education is not responsible for the management of individual schools and is not the employer of individual teachers (see O’Keeffe v. Hickey 2 IR 302; Hickey v. McGowan 2 IR 196). 3. THE ATTORNEY GENERAL AS A PARTY The Attorney General is also a necessary party to certain types of action. First s/he must be a party to an action where the constitutionality of any law is challenged in an action. If s/he is not already a party, the party having carriage of the proceedings must serve a notice upon the Attorney General (see Order 60 Rule 1 RSC). Furthermore, if in any action the interpretation of the Constitution is or becomes an issue, Order 60 Rule 2 obliges the party having carriage of the action, if the court so directs, to serve a notice on the Attorney General. The notice must state the nature of the proceedings in which the question arises and contentions being made by the parties. Service upon the Attorney General entitles him or her to become a party (a notice party) to the action with regard to the constitutional question in issue. Order 60A, Rule 2 RSC requires that notice be served on the Attorney General and the Human Rights and Equality Commission where proceedings seek a declaration of incompatibility with the European Convention on Human Rights in accordance with Section 5(1) of the European Convention on Human Rights Act 2003. In addition to questions of constitutionality, the Attorney General is the guardian of public rights (which by their nature do not vest in an individual) and thus when such rights exist and are the subject of litigation the Attorney General, as the legal representative of the general public, must become a party to the action in question. The types of public rights are varied but the most common are public rights of way (although there is now a duty imposed by statute on local authorities in this regard) and public interest matters generally (see the Campus Oil Ltd v. Minister for Industry and Energy (No. 2) IR 88). © The Honorable Society of King’s Inns 2024-2025  15 As public rights do not vest in individuals, an individual has no right to bring an action seeking to enforce a public right. In such cases an interested party may commence a relator action or convert an existing improperly constituted action into a relator action. That is to say cases brought by the Attorney General in respect of public rights at the “relation” of a member of the public. In such cases the Attorney General is the sole Plaintiff although the relator and his solicitors have carriage of the action. The relator must undertake to pay the costs of the proceedings and undertake to pay any damages. Although the relator has carriage of the action the Attorney General is the Plaintiff and he must be kept informed of the action’s progress and his consent is required for any major steps, such as amendment of the pleadings, which the relator proposes to take. 4. ACTIONS BY AND AGAINST PARTNERSHIPS Partners in a firm may bring or defend proceedings in the name of each partner who was a partner in the firm at the time the cause of action accrued. The firm may also be sued in the firm name (see RSC Order 14, CCR Order 8). This is in essence shorthand for naming all the partners in the firm. Partnerships are not separate legal entities and a fresh partnership arises on each change of partners in a firm. Accordingly, care is required to ensure that the firm name used is that which existed as at the date of accrual of the cause of action. Similarly, if the partners are named individually they must have been the partners who were partners as at the date of accrual. The rules make provision for the disclosure of partners’ names on application to the court by motion should identity present a problem. Where the names of the partners are used the heading of the action should indicate the business name. For example, if the partners in a firm of solicitors are sued individually the following is appropriate: Peter Smith and Edward Jones practising under the name [or under the style and title] of Penny & Farthing Solicitors or, if suing in the name of the respective firm Penny Farthing Solicitors (A Firm) If suing in the name of the respective firm (see above), then in the paragraph of the claim describing the Plaintiff, each of the individual partners (who were partners at the material time) should be named. 5. ACTIONS AGAINST LIMITED LIABILITY PARTNERSHIPS (LEGAL SERVICES) The Legal Services Regulation Act 2015 provides for Limited Liability Partnerships (LLPs). The Act provides that a partnership of solicitors may apply to operate with limited liability in respect of debts, obligations or liabilities of the LLP. Under the Act a “relevant business” is required to apply to the Legal Services Regulatory Authority (LSRA) for authorisation to operate as such. If suing a relevant business with authorisation to operate as an LLP - using the previous example – the following would be appropriate: © The Honorable Society of King’s Inns 2024-2025  16 Penny Farthing Solicitors LLP Following the commencement of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 (see Part 10), the LSRA confirmed that it would commence consultations on regulations to introduce partnerships between barristers and solicitors, or between groups of barristers, as envisioned by the LSRA Act 2015. Section 100 of the Legal Services Regulation Act 2015 has not yet been commenced, but the LSRA has announced that it is due to be commenced in Autumn 2024. It has also announced that the Legal Services Regulation Act 2015 (Legal Partnerships) Regulations 2024, under Section 116, are due to be introduced in Autumn 2024. The LSRA has published the draft regulations: https://www.lsra.ie/wp-content/uploads/2024/08/Draft-Legal-Services-Regulation-Act- 2015-Legal-Partnerships-Regulations-2024.pdf 6. PERSONS USING A BUSINESS NAME Order 14, Rule 11 RSC and Order 8, Rule 7 CCR provide that any person carrying on business under a name other than his or her own name which is not registered pursuant to the Registration of Business Names Act 1963), may be sued in such name. For example: John Murphy trading as Murphy Supplies 7. ACTIONS BY AND AGAINST ESTATES AND TRUSTS Trustees, executors and administrators may sue and be sued in their own name without joining in the beneficiaries under the trust or estate (unless the court orders otherwise). The proceedings should make clear, however, that such parties are suing or being sued in a representative capacity and not personally. Where they are suing or are being sued in both capacities (i.e. personal and representative) this should be made clear in the summons or pleading. Particular care is needed when a trustee, executor or administrator is joined as a party to an action (either as Plaintiff or Defendant). While the costs of proceedings will generally come out of the trust or estate this is not so where the trustee, executor or administrator has acted unreasonably in bringing or defending an action. In such cases the office holder may end up bearing the costs personally. Trustees and executors must also be careful to act neutrally between beneficiaries, as taking an active part in a dispute between beneficiaries will particularly expose the office holder to the risk of a personal costs order. 8. ACTIONS BY AND AGAINST UNINCORPORATED ASSOCIATIONS Unincorporated associations have no legal existence and if an action is to be brought or defended it must be through its trustee\office holders. This requires an identification of the persons in question. Note, however, the judgment of Charleton J in Sandymount & Merrion Residents Association v. An Bord Pleanala IEHC 291 (approved by Clarke J in the Supreme Court – IESC 51). Charleton J acknowledged the traditional position, at © The Honorable Society of King’s Inns 2024-2025  17 common law, that an unincorporated body does not have legal personality and, thus, cannot bring either a public or private law action. However, he held that this inability is capable of being removed by legislation granting capacity to such bodies [the legislation in that instance being Section 50A of the Planning & Development Act 2000 (as amended)]. See Hickey v. McGowan 2 IR 196. 9. REPRESENTATIVE ACTIONS Both the RSC (Order 15 Rule 9) and the CCR (Order 6 Rule 10) make provision for representative actions. These are actions where numerous persons have an interest in a cause or matter in the same capacity. Order 15 Rule 9 allows for both a representative plaintiff and, where authorised by the court, a representative defendant. In such instances a motion is brought naming all the interested persons seeking the court’s authorisation for a named individual or individuals to bring an action representing the class of persons interested in the same matter. The consent of the person who is willing to act in the representative capacity must, of course, be obtained and the court will need to be satisfied that such consent exists. Once the order is made the representative may sue on behalf of all those named in the grounding affidavit and the action binds them accordingly as if they were individually named as parties. Where such an order is in force the indorsement of claim must identify the capacity in which the representative party brings or defends an action. In Grace v. Hendrick IEHC 320, the plaintiff sought an order directing the second named defendant to defend the plaintiff’s intended personal injuries proceedings on behalf of all living members of the Congregation of Christian Brothers members during a specified period. The second defendant did not consent to act in a representative capacity. Hyland J held that Order 15 Rule 9 did not allow a court to order an unwilling defendant to act in a representative capacity on behalf of other unnamed and unidentified defendants. However, Hyland J did order the second named defendant to disclosure full names and addresses of all living members of the Congregation of Christian Brothers members during a specified period. Although not stated in Order 15 Rule 9, there is a long-standing common law bar on representative actions in tort actions, as held by the Supreme Court in Moore v. Attorney General (No. 3) IR 471. Moore has not been overturned; however, the “blunt” position has been question in obiter comments by O’Donnell J in the Supreme Court in Hickey v. McGowan 2 IR 196. Moore was applied more recently by the High Court in Merriman v. Burke IEHC 118. In the Circuit Court, Order 6 Rule 10 provides that no representative action may be brought where the action is founded in tort. In other cases, where there are numerous persons who have the same interest in an action or matter, they may sue on behalf of or for the benefit of all interested persons. In the case of a representative defendant, they have to be authorised by the court to defend on behalf of all defendants. © The Honorable Society of King’s Inns 2024-2025  18 10. CLASS ACTIONS There is no overarching system for collective redress or class actions in existence in Ireland at present. EU Directive 2020/1828 “Representative actions for the protection of collective interests of consumers” was published in the Official Journal (OJ) on the 4th December 2020. It repeals Directive 2009/22/EC. Recital 7 of 2020/1828 states that its purpose is to ensure that at Union and national level at least one effective and efficient procedural mechanism for representative actions for injunctive measures and for redress measures is available to consumers in all Member States. Each Member State is to designate at least one ‘Qualified Entity’ to bring such actions (national and cross border) on behalf of consumers. Directive 2020/1828 was implemented into Irish law by the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 which was signed by the President on 11 July 2023. The Act was commenced on 30 April 2024 by Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Commencement) Order 2024 (SI No. 181 of 2024). The Act creates a new civil litigation mechanism whereby a designated ‘Qualified Entity’ may bring domestic or cross-border representative actions, on behalf of groups of consumers, to pursue breaches of EU and Irish consumer protection law. Qualified Entities will be designated by the Minister for Enterprise, Trade and Employment following an application process. The body or organisation must be independent, non-profit making, and it must have a “legitimate interest in protecting consumer interests”. The Bill Digest (available on oireachtas.ie) indicates that organisations likely to be designated as Qualified Entities include those with existing supervisory or enforcement competence in the financial services industry, for example the Central Bank of Ireland, Competition and Consumer Protection Commission and the Financial Services and Pensions Ombudsman. The Representative Actions Act 2023 appears to envision future third-party funding of class actions “insofar as permitted in accordance with law” (see section 27) but does not provide a mechanism whereby such third-party funding can be provided. It may be that further legislative reform is needed to provide for third-party funding of class or representative actions in Irish law. Regulations set out the forms to be used under the Act (Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Prescribed Forms) Regulations 2024 (S.I. No. 182 of 2024) and the maximum fee to be charged by a Qualified Entity (Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Section 29) (Maximum Fee) Regulations 2024 (S.I. No. 183 of 2024). 11. ACTIONS BY AND AGAINST MINORS Special rules apply in relation to actions by and against persons who are under 18 years of age (minors) and persons who are under a disability. Neither group is regarded as sui juris and thus cannot bring or defend proceedings on their own. © The Honorable Society of King’s Inns 2024-2025  19 Minors bring an action by their “next friend” (see Order 15 RSC, Order 6 CCR, Order 43 DCR) and defend through a “guardian ad litem”. The next friend or guardian is an adult person who consents to act in such capacity. e.g. Mary Doe, a minor (suing by her mother and next friend Deirdre Doe [or defending by her guardian ad litem Deirdre Doe]). Where proceedings are brought on behalf of a minor the consent of the next friend should be filed in the Central Office/Circuit Court Office at the same time the summons/civil bill is issued. Where the minor comes of age prior to the action concluding the next friend or guardian may apply on affidavit for a certificate that the Plaintiff or Defendant may continue to prosecute or defend the action in his/her own name. In the High Court such an application is made to the Central Office (Order 15, Rule 16) seeking to amend the title to the proceedings to describe the party lately an infant as proceeding or defending in his own name. Order 19 of the Circuit Court Rules (side bar orders) provides for a similar application to be made to the Circuit Court Office and the order is made by the County Registrar. The evidence required is usually production of the minor’s birth certificate. For the District Court see Order 43, Rule 14. Such applications must be made before the former minor may continue the action in his own name. If application is not made the action continues in the name of the next friend or guardian notwithstanding the coming of age of the former minor. 12. ACTIONS BY AND AGAINST A PERSON WHO LACKS CAPACITY The Assisted Decision-Making (Capacity) Act 2015 was commenced in April 2023. The Lunacy Regulation (Ireland) Act 1871 has been repealed by the 2015 Act. The 2015 Act provides that all wards of court must be reviewed and dealt with under the Act within a three-year period of its commencement. Until a ward of court is reviewed and discharged from wardship, the procedure remains that the ward may sue or defend by his or her committee of the estate (appointed by the Court). The 2015 Act provides that an order can be sought for the appointment of a decision- making representative to institute, prosecute or defend proceedings. Order 15, Rule 17 RSC now provides (SI No. 261 of 2023): “17.(1) In this rule, the “2015 Act” means the Assisted Decision-Making (Capacity) Act 2015 , and expressions used have the meanings assigned to them by the 2015 Act. (2) Where a decision-making representation order in respect of a relevant person authorises a decision-making representative to institute, prosecute or defend proceedings, the decision-making representative may institute, prosecute or defend such proceedings, and service of such proceedings on the decision-making representative shall be good and sufficient service. (3) Where notification of lack of capacity has been accepted in respect of a registered enduring power of attorney made by a relevant person as the donor, which power includes authority to act on the donor’s behalf in relation to the institution, prosecution or defence of proceedings, the attorney may institute, prosecute or defend such proceedings, and service of such proceedings on the attorney shall be good and sufficient service. © The Honorable Society of King’s Inns 2024-2025  20 (4) Where a registered enduring power under the Act of 1996, made by a relevant person as the donor, includes authority to act on the donor’s behalf in relation to the institution, prosecution or defence of proceedings, the attorney under the Act of 1996 may institute, prosecute or defend such proceedings, and service of such proceedings on the attorney under the Act of 1996 shall be good and sufficient service. (5) Where a registered co-decision-making agreement in force in respect of an intending party or party to proceedings as the appointer provides for the making jointly by the appointer and a co-decision-maker of decisions concerning proceedings, the originating document or defence, and each subsequent document delivered on behalf of that party in such proceedings shall state that the decision to issue and deliver same was made jointly by the appointer and co-decision-maker. (6) Where any issue arises as to, or arising from, the capacity of any adult party to proceedings, the Court may, of its own motion having heard the parties, or on the application by motion on notice of any party, or person sufficiently interested, make such orders or give such directions concerning the further conduct of the proceedings as are necessary in the interests of justice. (7) A ward of court may sue or defend by his or her committee.”; Circuit Court: see Order 6 as amended by SI 201 of 2023. District Court Rules: see Order 43. 13. O’BYRNE LETTERS Quite often there are several possible Defendants to an action and the Plaintiff is unclear as to which of them is liable. In these circumstances the Plaintiff should write to each of the potential Defendants calling on them to admit liability/exonerate the other or others from liability. Such letters proceed to warn the recipients that if this process is not carried out the Plaintiff will sue each of them. If the unsuccessful Defendant has failed to exonerate the others, at the conclusion of the trial the successful Defendants’ costs will be paid not by the Plaintiff but by the unsuccessful Defendant. © The Honorable Society of King’s Inns 2024-2025  21 SAMPLE O’BYRNE LETTER The Manager Model Supermarket Model Shopping Centre Dublin 200 [date] Re: John Smith Dear , We write to advise you that we act on behalf of John Smith. Our client advises us that he attended at your shop in Model Shopping Centre on the 20 th day of September last at approximately 4.15pm. Our client has been frequenting this establishment for years and is recognised by some staff members there. After taking a small trolley, our client proceeded to do some shopping, and when finished, went to the cashier with a few items in his trolley. He had a non-transparent plastic bag with him and put same at the end of the conveyor belt whilst putting his groceries on the conveyor belt at the express checkout and waited to pay for them. Our client was standing at the end of the checkout and was packing his groceries into his bag after he had paid for same when he was approached by a security guard on your premises and falsely accused of not paying for a box of biscuits which he wrongly believed to be in our client’s bag. The security guard shouted at him “Stop, thief”. You did not pay for that box of biscuits in your bag”. Our client was most shocked and asked the security guard if he was serious. The security guard on three occasions requested that our client empty out the contents of his bag. He declined on each occasion and whilst the security guard blocked his exit path, he placed his hand on his shopping trolley and insisted that he open the bag. Our client, who was most distressed at this stage, opened his bag and showed the security guard its contents. There was no box of biscuits in his bag. Our client was most embarrassed and upset as this scene was being witnessed by numerous customers and staff members. As you are aware this allegation was utterly malicious and false and constitutes a clear defamation of our client’s reputation and good name. Our client is an 84-year old man who has been deeply distressed by the whole episode. He has had to attend his G.P. on a number of occasions due to the trauma of the incident © The Honorable Society of King’s Inns 2024-2025  22 Our client is unable to say whether you or Squeaky Clean Security Company Limited was to blame for the incident. We, therefore, call on you to write to us within 28 days confirming that you accept liability for the incident and agreeing to compensate our client in full. A letter in similar terms is being sent to Squeaky Clean Security Company. If we do not receive an admission of liability from one or other of you, we have instructions to issue proceedings on our client’s behalf against both you and Squeaky Clean Security Company Limited without further notice. If our client’s claim against you succeeds and Squeaky Clean Security Company Limited is not held liable and an order is made dismissing the claim against that company with costs, an application will be made to the trial judge for an order that, in addition to damages and our client’s costs, you should pay to our client such sum as he may have to pay in respect of the costs of Squeaky Clean Security Company Limited. This letter will be produced at the hearing of that application. Yours , Solicitors © The Honorable Society of King’s Inns 2024-2025  23 CHAPTER 3 COSTS, INITIATING LETTER AND LODGMENTS PART 1 COSTS 1. GENERAL PRINCIPLES The issue of costs is of central importance in litigation. Very often a possible settlement of the issues at stake in a case will founder because agreement cannot be reached on costs. An understanding as to the incidence of costs is vital in practice. Costs in litigation are specifically at the discretion of the Court (see Legal Services Regulation Act 2015, Sections 168 and 169 and Rules of the Superior Courts, Order 99 Rule 1 (2), Circuit Court Rules, Order 66 (1)), Order 53 District Court Rules That discretion will, however, be exercised in favour of the winning party save where there is good reason to depart from that principle in whole or in part. Legal Services Regulation Act 2015 – Sections 168 and 169: Power to award legal costs 168. (1) Subject to the provisions of this Part, a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings— (a) order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings, or (b) where proceedings before the court concern the estate of a deceased individual, or the property of a trust, order that the costs of or incidental to the proceedings of one or more parties to the proceedings be paid out of the property of the estate or trust. (2) Without prejudice to subsection (1), the order may include an order that a party shall pay— (a) a portion of another party’s costs, (b) costs from or until a specified date, including a date before the proceedings were commenced, (c) costs relating to one or more particular steps in the proceedings, (d) where a party is partially successful in the proceedings, costs relating to the successful element or elements of the proceedings, and (e) interest on costs from or until a specified date, including a date before the judgment. (3) Nothing in this Part shall be construed as— (a) restricting any right of action for the tort of maintenance, or (b) restricting any right of a trustee, mortgagee or other person, existing on the day on which this section commences, to be paid costs out of a particular estate or fund to which he or she would be entitled under any rule of law or equity. © The Honorable Society of King’s Inns 2024-2025  24 Costs to follow event 169. (1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including— (a) conduct before and during the proceedings, (b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings, (c) the manner in which the parties conducted all or any part of their cases, (d) whether a successful party exaggerated his or her claim, (e) whether a party made a payment into court and the date of that payment, (f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and (g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation. (2) Where the court orders that a party who is entirely successful in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, it shall give reasons for that order. (3) Where a party succeeds against one or more than one of the parties to civil proceedings but not against all of them, the court may order, to the extent that the court considers that it is proper to do so in all the circumstances, that— (a) the successful party pay any or all of the costs of the party against whom he or she has not succeeded, or (b) the party or more than one of the parties against whom the successful party has succeeded pay not only the costs of the successful party but also any or all of the costs that the successful party is liable to pay under paragraph (a). (4) Unless the court before which civil proceedings were commenced orders otherwise, or the parties to those proceedings agree otherwise, a party who discontinues or abandons the proceedings after they are commenced (including discontinuance or abandonment of an appeal) is liable to pay the reasonable costs of every other party who has incurred costs in the defence of the civil proceedings concerned until the discontinuance or abandonment. © The Honorable Society of King’s Inns 2024-2025  25 (5) Nothing in this Part shall be construed as affecting section 50B of the Planning and Development Act 2000 or Part 2 of the Environment (Miscellaneous Provisions) Act 2011. Right to Costs - Order 99 Rule 2 (2) provides that: 2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules: (1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively. (2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules. (3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application. (4) An award of costs shall include any sum payable by the party in favour of whom such an award is made by way of value added tax on such costs, where and only where such party establishes that such sum is not otherwise recoverable. (5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded. 3.(1) The High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicable. (2) For the purposes of section 169(1)(f) of the 2015 Act, an offer to settle includes any offer in writing made without prejudice save as to the issue of costs. Interlocutory applications very often result in separate costs orders which are either dealt with on the conclusion of the interlocutory hearing or which are sometimes reserved until the conclusion of the trial. Order 99, Rule 2(3) as inserted by SI 584 of 2019, appears to remove the discretion of the Court in relation to the costs of interlocutory applications except in cases where it is not possible to justly adjudicate upon liability for costs, in which case, presumably, the costs should be reserved to the trial Judge on the basis that the determination of the substantive action will produce an “event”. Further, Order 99, Rule 3(1) provides that the Superior Courts in considering the awarding of costs of any action or any step in any proceedings, shall have regard to the matters set out in Section 169(1) of the 2015 Act [see above].