Dispute Resolution Update: 2015 Review

09 February 2016

In 2015 we saw a revival of traditional commercial litigation and a move away from financial services and insolvency activity.

Key topics in 2015 included: 

Discovery – The Rise of the Machines

Litigation Funding

The Right to Interrogate

In 2015, the Irish Courts delivered judgments that should assist in speeding up litigation and reducing costs by approving the use of certain technology in the discovery process and reminding practitioners of the Court’s support for and the usefulness of interrogatories.  The availability of third party funding, however, remains unclear. 

Discovery – The Rise of the Machines

The discovery process can be costly and time-consuming, particularly in complex litigation where it can account for up to 50% of the total costs of litigation.

The use of specialist software technology to assist in reviewing significant volumes of electronically stored information has been widely used in other jurisdictions, particularly in North America.  Up until recently, it was unclear if the use of this software was in compliance with party’s discovery obligations under Irish law.

In March 2015, the Irish Commercial Court [1] held for the first time that the use of Technology Assisted Review (“TAR”) and predictive coding discharges a party’s discovery obligations under Irish law, provided the process has sufficient transparency.

The ruling brings Ireland in line with developments in this area in other jurisdictions although there is no industry standard for its use in Ireland.

To read more on this case, please click here for our recent Update.

Litigation Funding

The Irish legal system has been very conservative in allowing the funding of litigation by parties not directly involved.  It was only in 2014 that the principle of After the Event legal costs insurance was recognised in the Irish High Court.  Currently, the issue of funding by a non-party is before the Irish High Court.

Litigation between telecommunications companies Persona/Sigma and the Irish State involves the Court having to determine whether the financial supporting of proceedings by a litigation company in return for a share of the damages is lawful in this country. The Court will have to balance the traditional opposition of the Courts to such practices with the modern commercial reality of parties being involved in worthwhile litigation, which for whatever reason they cannot fund.

A decision is expected shortly and could have a significant impact on how parties fund litigation in this country.

The Right to Interrogate

On 9 November 2015, in McCabe & McCabe v Irish Life Assurance plc [2]the Irish Court of Appeal gave practitioners a timely reminder of an all too forgotten, but a highly useful pre-trial tool of interrogatories.

Interrogatories are formal questions a party serves on its opponent who must answer under oath 'yes' or 'no'.  The questions are designed to assist the requesting party in proving its case or undermining the case of the opposing party so as to expedite the trial and reduce costs.

In delivering the judgment, Kelly J noted that where modern litigation has increased in quantity, complexity and cost, it was “high time” for interrogatories to be used more widely. Kelly J reminded practitioners that interrogatories can be deployed to pose robust questions on “a much wider basis than is generally used.

The judgment is a clear encouragement from the Court of Appeal that genuine attempts to use interrogatories will be supported by the Courts.

What’s on the Horizon for 2016?

Practitioners need to be aware of the options available in Ireland to potentially reduce litigation costs through various methods.

In the area of discovery, the Irish Courts are now catching up with practices in other common law jurisdictions.  It likely that in 2016 the Courts will see an increase in applications regarding the use of technology to speed up and reduce the cost of large discovery.

The availability of third party litigation funding is uncertain and should be clarified by the Courts in 2016.  While the Courts may uphold the principle of such funding, individual agreements will likely be scrutinised in terms of fairness and legality.

For more information, please contact a member of our Dispute Resolution team.

[1] Irish Bank Resolution Corporation Limited & Ors v Sean Quinn & Ors [2015]

[2] 1015 ECA 239

The content of this article is provided for information purposes only and does not constitute legal or other advice. 

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