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Practice Direction HC 97
Practice Direction HC 97 – good for the rainforests

13 Nov 2020 / Practice management Print

Society welcomes new High Court practice direction

Practice Direction HC 97 is beautiful in its simplicity and will save considerable amounts of court time, reduce costs for litigants – and is ecologically friendly.

The best ideas are the simplest. Practice Direction HC 97 may seem unremarkable, but it could save considerable court time, reduce costs for litigants, and even give the rainforests a welcome break!

Every litigation solicitor will be familiar with the need to prepare voluminous books of authorities for contested hearings. This seems superfluous when the same authorities are repeatedly presented for applications that the court regularly deals with.

Bundles of authorities

Unnecessary effort and expense are incurred producing bundles of authorities and opening them to the court, even when the court is already very familiar with them.

The new practice direction solves this problem in proceedings in the High Court (save for the commercial list, where Practice Direction HC 68 continues to apply). It lists the authorities typically required for common procedural motions.

It stipulates that those authorities will be deemed to be available to the High Court judges dealing with such applications, meaning that copies need not be supplied by the parties.

Parties no longer have to copy the same cases every time there is a new motion. The need for books of authorities should be largely eliminated for most such motions.

The practice direction concerns motions seeking:

  • Dismissal for want of prosecution or delay,
  • Discovery,
  • Replies to further and better particulars,
  • Liberty to enter final judgment,
  • Security for costs,
  • Stay pending appeal,
  • Extension of time to appeal,
  • Removal of a lis pendens,
  • Appointment of a receiver,
  • Injunctions, and
  • Costs.

Reducing the volume of authorities to be put before the court should reduce the costs of preparing for such motions. Copying costs will be reduced, as will the cost involved in the parties agreeing the bundle.

Signposting the principles

The practice direction is also useful because, by listing the key authorities on particular issues, the court is signposting the principles that will govern their determination, meaning that less time should be spent opening well-established authorities or arguing over accepted principles.

Oral and written legal submissions should not traverse core authorities in the detail that might be appropriate if dealing with novel issues.

Accordingly, the practice direction may (a) reduce the need for the parties to engage and negotiate as to the authorities required for the hearing, (b) eliminate the need for solicitors to prepare bundles of authorities that a court already knows backwards, and which have been copied to it previously, and (c) reduce the time spent on legal argument – there should be less justification in working through common ground.

The practice direction also highlights to the litigants and their advisors whether the motion should be brought or opposed in the first place.

By focusing on the authorities, litigants can determine at the outset whether an application is likely to succeed, and can also prepare their application in the light of the jurisprudence.

Book of authorities

Of course, issues may arise that are not covered in the standard bundles, and additional authorities may occasionally be required. The practice direction sets out the procedure when filing such supplemental authorities.

Save with leave of the court, there should be no more than eight cases in any book of authorities. Lawyers are also invited to draw the court’s attention to any amendments that might be required to the standard bundles of authorities, so that they can be kept up to date.

The practice direction also envisages that the parties should agree an issue paper concisely stating the issues. If parties can’t agree an issue paper, each party should submit their own paper of no more than 1,000 words.

Filing electronic copies

It also provides for the filing of electronic (as well as paper) copies of written submissions and issue papers in the format specified in detail in the practice direction.

Establishing the premise that the court has already been briefed with the key authorities for common motions should reduce effort and expense, save clients’ money, and reduce the time at hearing. The benefits of avoiding duplicative and voluminous authorities should not be underestimated.

Accordingly, while a very simple idea, the practice direction offers significant benefits both to the courts and to the legal profession and, ultimately, to the clients by reducing the overheads involved in some common contested motions.

Statement of case

Other recent practice directions are also designed to make the operation of the courts more efficient, reducing delays and expense for the parties, and thus improving the administration of justice.

One example is the requirement, in Practice Direction SC 21, for parties to Supreme Court appeals to submit a ‘statement of case’. This is clearly designed to assist the court’s management of the appeal, presumably shortening the time required to hear and dispose of the appeal.

The importance of the new procedure and the assistance that it provides to the Supreme Court is demonstrated by the Chief Justice’s recent written judgment in Protégé International Group (Cyprus) Ltd v Irish Distillers Ltd ([2020] IESC 61), which complimented the parties on the quality of their statement of case.

Future appeals

Parties to future appeals should take note of the court’s preferences as appearing from the judgment.

The Chief Justice observed that he had published the judgment in order to draw attention to what he evidently considered to be an excellent example of such a statement and of a constructive approach to litigation, and he annexed the document to his judgment to stand as a precedent for future appeals.

The Chief Justice commented: “As can be seen from the joint statement, both parties have been able to robustly maintain their respective positions in relation to the substantive issues which will need to be determined on this appeal, but have also engaged constructively so as to agree appropriate steps to enable the appeal to come on for hearing at a time which will, most likely, be less than three months after leave to appeal was given.”

While issued by different courts, both practice directions illustrate the courts’ determination to improve the administration of justice wherever possible, by focusing on the issues and by avoiding unnecessary documentation. Such reforms are welcome from the perspective of all stakeholders – especially the clients, who ultimately bear the cost of court proceedings.

Liam Kennedy
Liam Kennedy SC is a partner and commercial litigator with A&L Goodbody and a member of the Law Society’s Council