I. General

1. In the absence of any agreement in writing between the solicitors of all parties, and subject to these Rules, the witnesses at the trial of any action, or at any assessment of damages, shall be examined viva voce and in open court, but the Court may, at any time for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner; provided that, where it appears to the Court that the other party, bona fide, desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

2. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the Court, to be obtained at the time of making any such application, and in any other case, upon the party desiring to use such evidence giving two days previous notice to the other parties of his intention to read such evidence.

3. Attested copies of all documents filed in the High Court shall be admissible in evidence in all causes and matters and between all persons or parties to the same extent as the originals would be admissible.

II. Examination of witnesses

4. The Court may, in any cause or matter where it shall appear necessary, make any order for the examination upon oath before the Court, or any officer of the Court, or any other person, and at any place, of any witness, and may allow the deposition of such witness to be adduced in evidence on such terms (if any) as the Court may direct.

5.^[1] (1) In this rule and in rule 5A:

“the Regulation” means Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L174/1 of 27 June 2001);

“Member State” means a Member State of the European Union with the exception of Denmark.

(2) The Court may, in any case in which the Regulation applies, on the application of any party or of its own motion, order the issue of:

(a) a request, in Form A in the Annex to the Regulation, to the competent court of another Member State to take evidence; or

(b) a request, in Form I in the Annex to the Regulation, to a central body or competent authority, designated by the Member State concerned in accordance with Article 3(3) of the Regulation, to take evidence directly in that Member State.

(3) Where an order under this rule is sought by a party, the Court may, before making such an order, require that party to file in the Central Office for consideration by the Court a completed draft of Form A or Form I (as appropriate) in the Annex to the Regulation (including any questions sought to be put to any witness, statement of facts about which any witness is sought to be examined, or documents or objects sought to be inspected by the opposing party), together with a certified translation thereof (where necessary) into the official language referred to in Article 5 of the Regulation, and an undertaking to reimburse without delay any fees or costs referred to in Article 18(2) of the Regulation, and to pay any advance or deposit referred to in Article 18(3) of the Regulation.

(4) Where an order under this rule is made of the Court’s own motion, the Court may direct the parties or any of them to reimburse (subject to any order made in that regard by the requested court) any fees or costs referred to in Article 18(2) of the Regulation, and to pay any advance or deposit referred to in Article 18(3) of the Regulation in such shares as it shall direct.

(5) The Court may make such orders and give such directions as seem appropriate for the purposes of Article 12 or Article 17 of the Regulation.

(6) The trial judge may make such order as to fees or costs referred to in Article 18(2) of the Regulation, or as to any costs occasioned by the application of Article 12 or Article 17 of the Regulation as shall seem appropriate, notwithstanding any previous undertaking, order or direction in that regard.

(7) An application under rule 5(2) shall, unless the Court otherwise directs or permits, be made by notice of motion grounded upon an affidavit sworn by or on behalf of the applicant.

5A.^[2] (1) If in any case in which the Regulation does not apply the Court orders that a request to examine witnesses shall issue in lieu of a commission, the forms Nos 1 and 3 in Appendix D, Part II, shall be used for the order and request, respectively.

(2) Where an order is made for the issue of a request to examine a witness or witnesses in any foreign country in which the Regulation does not apply, the following procedure shall be adopted:

(a) the party obtaining such order shall file in the Central Office an undertaking in the Form No 2 in Appendix D, Part II.

(b) such undertaking shall be accompanied by:

(i) a request in the Form No 3 in Appendix D, Part II, with such variations as may be directed in the order for the issue thereof, together with a translation of such request into the language of the country in which the same is to be executed;

(ii) a copy of the interrogatories (if any) to accompany the request and a translation thereof;

(iii) a copy of the cross-interrogatories (if any) and a translation thereof.

(3) Where, in any case in which the Regulation does not apply, an order is made for the examination of a witness or witnesses before the Irish Consular authority in any foreign country, such order shall be in the Form No 4 in Appendix D, Part II.

(4) An application for an order under rule 5A(1) shall, unless the Court otherwise directs or permits, be made by notice of motion grounded upon an affidavit sworn by or on behalf of the applicant.

6. The Court may in any cause or matter, at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court may think fit to be produced; provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.

7. Any person wilfully disobeying any order requiring his attendance for the purpose of being examined or producing any document, shall be deemed guilty of contempt of Court, and may be dealt with accordingly.

8. Any person required to attend for the purpose of being examined, or of producing any document, shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court.

9. Where any witness or person is ordered to be examined before any officer of the Court, or before any person appointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the summons, and pleadings, if any, or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties.

10. The examination shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination.

11. The depositions taken before an officer of the Court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, so as to represent as nearly as may be the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as may think fit to attend.  If the witness shall refuse to sign the depositions, the examiner shall sign the same.  The examiner may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination.  Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question.

12. If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed in the Central Office, and thereupon the party requiring the attendance of the witness may apply to the Court ex parte or on the notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be.

13. If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Central Office to be there filed, and the validity of the objection shall be decided by the Court.

14. In any case under rules 12 and 13, the Court shall have power to order the witness to pay any costs occasioned by his refusal or objection.

15. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Central Office, and there filed.

16. The person taking the examination of a witness under this Order may, and if need be shall make, a special report to the Court touching such examination, and the conduct or absence of any witness or other person thereon, and the Court may direct such proceedings and make such order as upon the report it may think just.

17. Except where by this Order otherwise provided or directed by the Court no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court is satisfied that the deponent is dead, or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence saving all just exceptions without proof of the signature to such certificate.

18. Any officer of the Court or other person, directed to take the examination of any witness or person, may administer oaths.

19. Any party in any cause or matter may by subpoena ad testificandum or duces tecum require the attendance of any witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such officer or person for cross-examination.

20. Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial.

21. The practice with reference to the examination, cross-examination, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage.

22. The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may be given in any case.

23. No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the Court be received at the hearing or trial thereof, unless within one month after issue joined or within such longer time as may be allowed by special leave of the Court, notice in writing shall have been given by the party intending to use the same to the opposing party of his intention in that behalf.

24. All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.

III. Subpoena 

25. Where it is intended to apply for the issue of a subpoena, a praecipe for that purpose, in the Form No 1 in Appendix D, Part I, and containing the name or firm and the registered place of business of the solicitor so applying, shall in all cases be delivered and filed at the Central Office.

26. A subpoena shall be in one of the Forms Nos 2 to 5 in Appendix D, Part I.

27. A subpoena for the attendance of a witness before the Master or the Examiner may issue from the Central Office upon a note from the Master or Examiner as the case may be.

28. Every subpoena other than a subpoena duces tecum shall contain three names where necessary or required, but may contain any larger number of names.

29. No more than three persons shall be included in one subpoena duces tecum, and the party applying for the same shall be at liberty to apply for a subpoena for each person if it shall be deemed necessary or desirable.

30.^[3]  No subpoena shall issue for the production of any record in the custody of the Paymaster-General, or other officer of the State, without an order of the Court; and such officer having the custody of any such record shall not be obliged to remove the same under such order from the depository where same is placed without such order, to be served upon him with the subpoena duces tecum.  This rule shall not apply to any action to which section 1(1) and (2) of the Courts Act 1988 applies.

31. Any officer of the Court required to attend with any record or document at any court or place, elsewhere than in Dublin, shall be entitled to require that the solicitor or party desiring his attendance shall deposit with him a sufficient sum of money to answer his just fees, charges and expenses, in respect of such attendance, and undertake to pay any further just fees, charges, and expenses which may not be fully answered by such deposit.

32. In the interval between the issue and service of any subpoena the party applying for the same may correct any error in the names of parties or witnesses, and may have it re-sealed upon leaving a corrected praecipe for such subpoena marked with the words “altered and re-sealed” and signed with the name and registered place of business of the solicitor applying.

33. The service of a subpoena shall be effected by delivering a copy thereof, indorsed with the name and address of the solicitor or party issuing the same, and at the same time producing the original.

34. The service of any subpoena shall be of no validity if not made within twelve weeks after its date.

IV. Perpetuating testimony 

35. Any person who would under the circumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim.

36. In all actions to perpetuate testimony touching any honour, title, dignity, or office, or any other matter or thing in which the State may have any estate or interest, the Attorney General may be made a defendant, and in all proceedings in which the depositions taken in any such action, in which the Attorney General was so made a defendant, may be offered in evidence, such depositions shall be admissible notwithstanding any objection to such depositions upon the ground that the State was not a party to the action in which such depositions were taken.

37. Witnesses shall not be examined to perpetuate testimony unless an action has been commenced for the purpose.

38. No action to perpetuate the testimony of witnesses shall be set down for trial.

V. Obtaining evidence for foreign tribunals 

39. Where under the Foreign Tribunals Evidence Act 1856, or the Extradition Act 1870, section 24, any civil or commercial matter, or any criminal matter, is pending before a court or tribunal of a foreign country, and it is made to appear to the Court, by commission rogatoire, or letter of request or other evidence as hereinafter provided, that such court or tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court may, on the ex parte application of any person shown to be duly authorised to make the application on behalf of such foreign court or tribunal, and on production of the commission rogatoire, or letter of request, or other evidence pursuant to the Foreign Tribunals Evidence Act 1856, section 2, or such other evidence as the Court may require, make such order or orders as may be necessary to give effect to the intention of the Acts above mentioned in conformity with the Foreign Tribunals Evidence Act 1856, section 1.

40. An order made under rule 39 shall be in the Form No 1 in Appendix D, Part III.

41. The examination may be ordered to be taken before any fit and proper person nominated by the person applying, or before one of the officers of the Court, or such other qualified person, as to the Court may seem fit.

42. (1) Unless otherwise provided in the order for examination, the person before whom the examination is taken shall, on its completion forward the same to the Master, and on receipt thereof the Master shall append thereto a certificate, in the Form No 2 in Appendix D, Part III, duly certified for use out of the jurisdiction and shall forward the depositions so certified, and the commission rogatoire or letter of request (if any) to the Minister for Foreign Affairs for transmission to the foreign court or tribunal requiring the same.

(2) Where the foreign court or tribunal so desires, the deposition shall be sent direct by the Master to the Consul or other official of the foreign government in Ireland for transmission to the foreign court or tribunal.

43. An order made under rule 39 may direct the said examination to be taken in such manner as may be requested by the commission rogatoire or letter of request from the foreign court or tribunal, or therein signified to be in accordance with the practice or requirements of such court or tribunal, or which may, for the same reason, be requested by the applicant for such order.  In the absence of any such special directions being given in the order for examination, the same shall be taken in the manner prescribed in Part II of this Order.

44. Where a commission rogatoire, or letter of request, as mentioned in rule 39, is transmitted to the Chief State Solicitor by the Minister for Foreign Affairs with an intimation that it is desirable that effect should be given to the same without requiring an application to be made to the Court by the agents in Ireland of any of the parties to the action or matter in the foreign country, the Chief State Solicitor may make such applications and take such steps as may be necessary to give effect to such commission rogatoire, or letter of request, in accordance with rules 39 to 43 (inclusive).

VI Disclosure of reports and statements

Definition

45.^[4] (1) (a) “action” includes any claim for damages in respect of any personal injuries to a person howsoever caused (including a claim for fatal injuries brought pursuant to section 48 of the Civil Liability Act 1961) but does not include an action to which section 1(3) of the Courts Act 1988 applies so as to entitle a party to trial by jury in that action.

(b) “the Act” means the Courts and Court Officers Act 1995.

(c) “parties” includes a plaintiff or co-plaintiff, defendant or co-defendant or any third party, counterclaimant or notice party to the action save where the context otherwise requires.

(d) “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.

(e) “report” means a report or reports or statement from accountants, actuaries, architects, dentists, doctors, engineers, occupational therapists, psychologists, psychiatrists, scientists, or any other expert whatsoever intended to be called to give evidence in relation to an issue in an action and containing the substance of the evidence to be adduced and shall also include any maps, drawings, photographs, graphs, charts, calculations or other like matter referred to in any such report.  Any copy report (including a copy report in the form of a letter), copy statement or copy letter however made, recorded or retained from any such expert mentioned above intended to be called to give evidence in relation to an issue or action and containing the substance of the evidence to be adduced, the original of which has been concealed, destroyed, lost, mislaid or is not otherwise readily available, shall also be deemed to be a report for the purposes of this rule.

(f) “the section” means section 45 of the Courts and Court Officers Act 1995.

Disclosure of reports and statements

46. (1) The plaintiff in an action shall furnish to the other party or parties or their respective solicitors (as the case may be) a schedule listing all reports from expert witnesses intended to be called within one month of the service of the notice of trial in respect of the action or within such further time as may be agreed by the parties or permitted by the Court.

Within seven days of receipt of the plaintiff’s schedule, the defendant or any other party or parties shall furnish to the plaintiff or any other party or parties a schedule listing all reports from expert witnesses intended to be called.  Within seven days of the receipt of the schedule of the defendant or other party or parties, the parties shall exchange copies of the reports listed in the relevant schedule.

(2) The parties in an action shall exchange with the other party or parties or their respective solicitors (as the case may be) the information and statements referred to in section 45(1)(a)(iii), (iv) and (v) within one month of the service of the notice of trial or within such further time as may be agreed by the parties or permitted by the Court.

(3) In any case where a party or his solicitor certifies in writing that no report exists which requires to be exchanged pursuant to subrule 1, any other party shall, on the expiry of the time fixed, agreed or permitted (as the case may be) deliver any report within the meaning of the section to all other parties to the proceedings.

(4) Any party who, subsequent to the delivery required by subrule (1) above, obtains any report within the meaning of the section or the name and address of any further witness, shall forthwith deliver a copy of any such report or statement or details of the name and address of any such witness (as the case may be) to the other party or parties or their respective solicitors (as the case may be).

(5) Service of any report, statement or information requiring to be exchanged or delivered may be effected by letter in writing enclosing the report, statement or information required to be delivered by virtue of the section and may be sent by ordinary pre-paid post or in any other manner in which service is authorised by these rules.  Such letter shall specifically state that the service is for the purpose of complying with the requirements of section 45 of the Act and these rules.  The Court may on application to it by any party to an action or of its own motion require that an affidavit or affidavits be filed by any party in relation to proof of disclosure and service required by these rules in any case in which it appears to the Court necessary so to do.

(6) Any party who has previously delivered any report or statement or details of a witness may withdraw reliance on such by confirming by letter in writing that he does not now intend to call the author of such report or statement or such witness to give evidence in the action.  In such event the same privilege (if any) which existed in relation to such report or statement shall be deemed to have always applied to it notwithstanding any exchange or delivery which may have taken place.

Motion for directions

47. When any party alleges that any other party to an action has failed to comply with the requirements of rule 46 or any provision thereof application may be made to the Court by motion on notice seeking the directions of the Court in relation to any such alleged default.  Such motion shall be grounded upon the affidavit of the party concerned and on the hearing of such motion the Court may, if satisfied that the party alleged to be in default has failed to comply with all or any of the requirements of the section or these rules, direct compliance with such requirement(s) forthwith or within such period as the Court may fix or may make such other order as the justice of the case may require including an order providing that in default of such compliance the party in default be prohibited from adducing such evidence or that in default of such compliance the claim or defence (as the case may be) be struck out and may make such further order in relation to costs as seems meet.

Non-compliance with the rules

48. If at any stage of the hearing of an action it appears to the Court that there has been non compliance with any provision of the section or these rules, the Court may, having heard any such evidence as may be adduced by the parties in relation to such non-compliance, make such order as it deems fit including an order prohibiting the adducing of evidence in relation to which such non compliance relates or may adjourn the action to permit compliance with the provisions of the section or these rules (as the case may be), and on such terms and conditions as seem appropriate and may make such order as to costs as appears just in the circumstances.

Actions transferred from the Circuit Court

49. In relation to any actions transferred from the Circuit Court into the High Court the parties shall within one month of the order adopting the proceedings exchange a schedule of reports and the reports in the manner provided for in rule 46(1) and the provisions of this Part shall apply mutatis mutandis.

Exceptions

50. (1) In any case application may be made to the Court by motion on notice by any party for an order that in the interests of justice the provisions of rule 46 shall not apply in relation to any particular report or statement (or portion thereof), which is in the possession of such party and which he maintains should not be disclosed and served as required.  The Court may, upon such application, make such order as to it seems just.

(2) In any case in which there has been non compliance by any party with any relevant requirement of the section or these rules, such party, in the absence of the consent of the other party or parties may apply by motion on notice to the Court for an order seeking the leave of the Court permitting the adducing of such evidence as has not been disclosed and the Court may make such order on such application as appears just in the circumstances.

Application of rules 45 to 50

51. Rules 45 to 50 inclusive shall not apply to proceedings instituted before the 1st day of September 1997 or to any report or statement coming into existence before that date for the purposes of any proceedings (whether instituted before or after that date).

VII. Proof of foreign public, diplomatic and consular documents of member states of the European Communities

52.^{[5] [6]}  (1) 52. (1) In this rule:

“Central Authority” means the Central Authority of a Member State of the European Union designated in accordance with Article 15 of the 2016 Regulation to fulfil functions relating to the application of the 2016 Regulation;

the “2016 Regulation” means Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012;

“public documents” has the same meaning as in Article 3 of the 2016 Regulation and “public document” shall be construed accordingly.

(2) A document which purports to be a public document to which the 2016 Regulation applies (or a certified copy, within the meaning of Article 3(7) of the 2016 Regulation, of a public document) shall, without proof of any formal procedure for certifying the authenticity of a signature, the capacity in which the person signing the document has acted or, where appropriate, the identity of the seal or stamp which it bears, be admissible in evidence as such if otherwise admissible.

(3) In any case in which the Court has a reasonable doubt as to the authenticity of a public document or certified copy produced in accordance with sub-rule (2), it may direct the taking of any step permitted by Article 14 of the 2016 Regulation to dispel such doubt. In any such case the Court shall in its directions set out the grounds upon which they are based.

52A. ^[7]  (1) In this rule:

“Central Authority” means the Central Authority of a Contracting State designated in accordance with Article 5 of the Convention;

the “Convention” means the Convention Abolishing the Legalisation of Documents in the Member States of the European Communities done at Brussels on the 25th May, 1987;

a “Contracting State” means a State which is a party to the Convention other than the State and includes a State which has made a declaration pursuant to Article 6(3) of the Convention;

“document” means and includes any document or documents which are public documents within the meaning of Article 1 of the Convention, but does not include a “public document” within the meaning of rule 52, to which the 2016 Regulation applies.

(2) A document which purports to be a public document within the meaning of Article 1 of the Convention shall, without proof of any formal procedure for certifying the authenticity of a signature, the capacity in which the person signing the document has acted, or where appropriate, the identity of the seal or stamp which it bears, be admissible in evidence as such if otherwise admissible.

(3) In any case in which the Court has serious doubts, with good reason, in relation to any document which is produced as to the authenticity of the signature, the capacity in which the person signing the document has acted, or the identity or seal of the stamp which it bears, it may direct that such information as it thinks relevant be requested in accordance with Article 4 of the Convention from the Central Authority of the State from which the act or document emanated. In any such case the Court shall in its directions set out the grounds upon which they are based.

(4) The provisions of Order 40, rule 7 shall apply mutatis mutandis, where applicable and to the extent required in relation to the taking of judicial notice of the seal or signature as the case may be, of any diplomatic or consular representative or agent, judge, court or notary public lawfully authorised to administer oaths in any of the Contracting States.

(5) This Part shall apply to any document to which the 2016 Regulation or the Convention applies and Parts VIII and IX shall not apply thereto.

VIII. Proof of foreign diplomatic and consular documents

53. (1) In this Part:

“the Convention” means the European Convention on the Abolition of Legalisation of Documents Executed by Diplomatic Agents or Consular Officers done at London on the 7th June 1968;

“a Contracting State” means a State which is a party to the Convention other than the State;

“document” means and includes any document or documents to which Article 2 of the Convention applies.

(2) A document which purports to have been executed by the diplomatic agents or consular officers of a Contracting State shall, without proof of any formality used to certify the authenticity of the signature on such a document, the capacity in which the person signing such a document has acted, and where appropriate, the identity of the seal or stamp which such document bears, be admissible without such proof if otherwise admissible.

(3) The Court may, where necessary, give such directions as to the verification of the authenticity of any document as it thinks fit.

(4) This Part shall not apply to any document to which Part VII applies.

IX. Proof of foreign public documents

54. ^[8]  (1) In this Part:

“an apostille” means an apostille issued in pursuance of the Convention and conforming to the model set out in the annex to the Convention;

“the Convention” means the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents done at The Hague on the 5th October 1961;

“a Contracting State” means a State which is a party to the Convention other than the State.

(2) A document which purports to be an apostille duly issued and executed in a Contracting State in accordance with the Convention shall without further proof be deemed to be such and shall be admissible as evidence of the facts stated therein unless the contrary is shown.

(3) This Part shall not apply to any document to which Part VII or VIII applies.

X. Evidence by video link or other means

55. (1) Where the Court directs in accordance with section 26 of the Civil Law (Miscellaneous Provisions) Act 2008 that a party may participate in the trial of proceedings, or that a witness may give evidence, whether from within or outside the State, through a live video link or by other means, the Court shall give such further directions as to the participation or evidence as are necessary for the efficient conduct of the trial consistently with the requirements of justice.

(2) Evidence given in accordance with sub-rule (1) shall be recorded electronically or otherwise as the Court directs.

XI. Expert Evidence

56. (1) Rules 59 to 61 inclusive apply to proceedings:

(a) which is listed for trial in the Commercial List or which is required to be heard in the Competition List, or

(b) in which an order may be made under Order 63C, rule 4.

(2) In this rule and rules 57 to 61 inclusive:

reference to a “case management conference” or a “pre-trial conference” is a reference to such a conference fixed in accordance with the provisions of Order 63A, Order 63B, or as the case may be, Order 63C;

the “evidence” of an expert witness includes testimony as to fact and the expression of any opinion;

“expert” means an expert witness.

57. (1) It is the duty of an expert to assist the Court as to matters within his or her field of expertise. This duty overrides any obligation to any party paying the fee of the expert.

(2) Every report of an expert delivered pursuant to these Rules or to any order or direction of the Court shall:

(a) contain a statement acknowledging the duty mentioned in sub-rule (1);

(b) disclose any financial or economic interest of the expert, or of any person connected with the expert, in any business or economic activity of the party retaining that expert, including any sponsorship of or contribution to any research of the expert or of any University, institution or other body with which the expert was, is or will be connected, other than any fee agreed for the preparation by the expert of the report provided or to be provided in the proceedings concerned and any fee and expenses due in connection with the participation of the expert in the proceedings concerned.

58. (1) Expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings.

(2) A Judge may—

(a) of his own motion and after hearing the parties, or

(b) on the application of a party by motion on notice to the other party or parties,

make any of the following orders or give any of the following directions as to expert evidence:

(i) requiring each party intending or proposing to offer expert evidence to identify–

(a) the field in which expert evidence is required; and

(b) where practicable, the name of the proposed expert;

(ii) determining the fields of expertise in which, or the proposed experts by whom, evidence may be given at trial;

(iii) fixing the time or times at which a report setting out the key elements of the of the evidence of each expert intended or proposed to be offered by each party shall be delivered to each other party concerned or exchanged and in default of such order being made, the provisions of sub-rules (1) to (5) inclusive of rule 46 shall apply to every such report;

(iv) where two or more parties (in this rule, the “relevant parties”) wish to offer expert evidence on a particular issue, direct that the evidence on that issue is to be given by a single joint expert (in this rule, the “single joint expert”);

(v) where the relevant parties cannot agree who should be the single joint expert—

(a) select the expert from a list prepared or identified by the relevant parties; or

(b) direct that the expert be selected in such other manner as the Court directs;

(vi) as to the terms on which and manner in which the single joint expert is to be instructed;

(vii) requiring any party:

(a) to pay to the single joint expert, or

(b) to deposit with the Accountant on account of fees to become payable to the single joint expert,

a specified sum in respect of or on account of a single joint expert’s fees and, where the Court so orders, the single joint expert shall not be required to act until the said sum has been paid or, as the case may be, deposited.

(3) Save where the Court for special reason so permits, each party may offer evidence from one expert only in a particular field of expertise on a particular issue. Such permission shall not be granted unless the Court is satisfied that the evidence of an additional expert is unavoidable in order to do justice between the parties.

59. (1) A party may put a concise written question or questions concerning the content of an expert's report to—

(a) an expert instructed by another party; or

(b) a single joint expert appointed pursuant to agreement of the parties or pursuant to order made in accordance with rule 58(2)(iv).

(2) An expert shall not be obliged to answer any written questions put in accordance with sub-rule (1) which are disproportionate, unnecessary for the determination of any matter at issue in the proceedings or not within the expert’s field of expertise. If necessary, a party or single joint expert may apply by motion on notice for a ruling on any issue arising from such written questions.

(3) Written questions under sub-rule (1)—

(a) may be put once only;

(b) shall be put within 28 days of service of the expert’s report; and

(c) shall be for the purpose only of clarification of the report, unless in any case—

(i) the Court permits otherwise, or

(ii) the other party who has instructed the expert concerned agrees.

(4) An expert’s answers to questions put in accordance with sub-rule (1) shall be treated as part of the expert’s report.

(5) Where—

(a) a party has put a written question to an expert instructed by another party; and

(b) the expert does not (in the absence of a ruling that he is not obliged to do so) answer that question,

the Court may make one or both of the following orders in relation to the party who instructed the expert—

(i) that the party may not rely on any, or a specified part, of the evidence of that expert; or

(ii) that the party may not recover any, or a specified part, of the fees and expenses of that expert from any other party.

60. Where two or more parties intend to call experts who, according to their reports as exchanged between the parties or filed in Court, may contradict each other as to evidence, then:

(i) following application by any party by motion on notice to the Judge chairing and regulating the pre-trial conference, or of that Judge's own motion, in any case in which such a conference is to be held, or

(ii) following application by any party by motion on notice to the trial Judge in any case, or

(iii) where so ordered by the trial Judge, having heard the parties, in the absence of any such motion,

the Judge concerned may order that the procedure set out in rule 61 be applied where that Judge considers it necessary in the interests of justice.

61. (1) Where an order has been made under rule 60, the experts shall be required to meet privately, without the presence of any party or any legal representative of any party, and to discuss with each other their proposed evidence.

(2) Following the meeting referred to in sub-rule (1), the experts shall be required to draw up a written statement (in this rule, the “joint report”) identifying such evidence as is agreed between or among them and such evidence as is not agreed. The joint report shall be lodged in Court to be furnished to the trial Judge in advance of the trial and a copy shall be provided to each of the parties.

(3) Upon a consideration of the joint report, the trial Judge may, at any appropriate stage of the trial:

(a) require any opposing experts to be examined and cross-examined (either on the whole or on a specified part of their evidence) one after another, in such order as the trial Judge shall direct, or

(b) apply the “debate among experts” procedure in accordance with sub-rule (4).

(4) Where the “debate among experts” procedure is applied, each of two or more contradicting experts shall be sworn in order to testify at the same time. When sworn, each expert, in such order as the trial Judge shall determine, and without being examined by, or by counsel for, any party, shall give an outline of the evidence that is agreed between or among them. The experts shall then, in such order as the trial Judge shall determine, present the evidence on which they are not agreed the one with the other or others. Following such presentation, the experts may, subject to the directions of the trial Judge in that regard, be required to debate the points which are not agreed between or among them, the one with the other or others.

(5) When the “debate among experts” in accordance with sub-rule (4) is complete, examination in chief by counsel, if deemed necessary by the trial Judge, and cross examination by counsel on such matters as the Judge directs, or if the Judge so directs, general cross examination shall be allowed, as may re-examination.