Coronavirus - Access to justice and everyday practicalities - Ireland

• Ireland

• General

23-03-2020

With office closures and social distancing the new normal, necessary adaptations to business practices have been implemented by the Courts Service to ensure continued access to justice for all parties. In this briefing note, we set out an overview of the more pertinent of those measures.

Quick overview

The Courts Service has introduced a number of preventative measures to combat the risk presented by COVID-19. These include measures to ensure that there is a dramatic decrease in the amount of people attending court to facilitate, insofar as is reasonably possible, ‘social distancing’ and avoid over concentration of people in one room or place.

The District Court and the High Court continue to hear urgent civil matters, this includes applications for injunctive relief, enforcement of injunctions and judicial review. For non-urgent matters, proceedings may still be commenced in all court jurisdictions. The Courts Service will continue to accept and issue Summonses or Civil Bills for new cases. All extant non-urgent civil proceedings, including motions, have been adjourned.

The temporary measures

The temporary measures introduced by the Courts Service for each court jurisdiction are as follows:

1. The Supreme Court

- Appeals which are listed between now and 3 April 2020 ¹ (the “end of term”) will be adjourned on consent. New dates will be fixed for a hearing in next court term or when the situation improves.

- The court will adjourn any appeal where there is no consent to do so, unless particular urgency can be demonstrated.

- Judgments will be delivered by one judge and parties will not be required to attend

- All adjournment applications and case management will be dealt with remotely unless absolutely necessary. Communication should be addressed with the Registrar by email at supremecourt@courts.ie .

2. The Court of Appeal

- The Court of Appeal is adopting the same approach as the Supreme Court to adjournment applications, delivery of judgments and case management.

- All adjournment applications are to be dealt with remotely by emailing the Registrar at courtofappealcivil@courts.ie or courtofappealcriminal@courts.ie as applicable.

3.  The High Court

- For the remainder of the current legal term, no new cases or trials will begin even if the trial does not involve oral testimony from witnesses.

- All Non-Jury, Judicial Review, Chancery, Commercial and Family Law cases will be adjourned generally with liberty to re-enter.

- All motions in all lists which are returnable for Monday 23 and Monday 30 March, and Motions in the Judicial Review List returnable for Tuesday 24 or Tuesday 31 March 2020 will be adjourned generally with liberty to re-enter. If motions in those lists are considered urgent by the moving party (for instance an injunctive application) then the relevant Registrar must be notified by email at hcmotions@courts.ie .

- Judges will be available throughout the remainder of the term to hear urgent applications for the following business:

(a) Bail
(b) Extradition
(c) Habeas Corpus
(d) Wardship
(e) Injunctions and their enforcement
(f) Urgent applications for Judicial Review

- The President of the High Court has confirmed that all motions and applications listed for hearing before the Master of the High Court between now and the end of term are adjourned generally with liberty to re-enter ² .

- The Legal Costs Adjudicators Lists and the Taxing Master's list stand adjourned generally, with liberty to re-enter. This does not prevent parties from preparing a bill of cost of seeking to agree matters between themselves.

4. The Circuit Court

- All civil lists will be adjourned to a date after the 20 April 2020 ³ . Parties will be advised of the adjourned dates by the Circuit Court offices.

- A judge will be available to sit on each Circuit to hear urgent applications.

5. The District Court

- All non–urgent District Court civil matters will be adjourned generally with liberty to re-enter either on consent or on notice to the other party.

- Urgent matters include criminal custody cases, protection orders and barring orders applications, and child care orders matters.

- A case which does not come into the defined urgent category can be treated as urgent if a good case can be made.

- A party can email the relevant court office setting out the reasons why the case should be considered urgent. This should be on notice to the other side.

6. Continuity of Services

Court offices will remain open and there will be drop boxes provided for documents.

(a) Filings

In accordance with Order 117A of the Rules of the Superior Court (the “RSC”), the Central Office will accept filings by post.

The Central Office continues to accept filings made in person and has implemented social distancing measures.

(b) Swearing Affidavits, Declarations etc.

Although the court offices are still accepting documents for filing, executing parties may encounter difficulty with the witnessing of such documents by a solicitor or commissioner of oaths. The Law Society of Ireland is currently considering this issue and until an alternative to the traditional method for swearing documents is found, it is recommended that anyone involved in swearing documents follows government guidance on social distancing and hand sanitising when doing so.

(c) Virtual Meetings/Conferences

Section 26 of the Civil Law (Miscellaneous Provisions) Act 2008, allows civil proceedings to be conducted by way of video conferencing.

Under this section an application may be made to the court, or the court may decide itself, that a party may participate in the case, or that a witness may give evidence, from a location outside court and either within or outside the State, by means of a live television link.

The section specifically refers to a “party” rather than “parties”, suggesting that the intention behind the section was to facilitate one party or witness to give evidence remotely, rather than conducting a full hearing of an action by video conferencing. However it may be a possible alternative in the current crisis, and similar measures are being considered in other jurisdictions.

(d) Service of Proceedings

We will continue to serve proceedings, once issued, in accordance with the court rules. There may be some challenges presented in effecting personal service of documents where required by the rules. We understand that certain summon servers in the Republic of Ireland will not be making attempts to effect personal service until 29 March 2020 at the earliest. This date may change as events unfold.

New High Court Practice Directions have been issued relating to:

1. Enduring Powers of Attorney which allows for service by way of pre-paid registered post instead of personal service on the Donor.

2. Wards of Court under which the requirement for personal service of an Order of Inquiry on a Respondent to a wardship application who has a Guardian ad Litem appointed is hereby dispensed with.  Service of the Order of Inquiry may be effected by serving the Guardian ad Litem.

These measures may ultimately be rolled out generally, however further practice directions from the Court Service will be required.

(e) Statute of Limitations

In the event of a closure of court offices, parties will naturally be concerned about the Statute of Limitations, which prescribes time periods within which proceedings must be commenced.  Order 122(3) of the RSC provides

“Where the time for doing any act or taking any proceeding expires on a Saturday, Sunday, or other day on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.”

The matter was considered by Morris J in Poole v O’Sullivan ⁴ who stated:

“That while, as a general rule, a statutory period of time, whether general or special, would, in the absence of any contrary provision, normally be construed as ending at the expiration of the last day of the period, there was a limited but important exception or qualification to that general rule , in that if the act to be done by the person concerned was one for which some action by the court was required, such as issuing a summons, and it was impossible to do that act because the offices of the court were closed for the whole of that day, the period would prima facie be construed as ending not on that day but at the expiration of the next day on which the offices of the court were open and it became possible to do the act”.

Therefore the running of time for the purpose of the Statue of Limitations will remain on-hold until the court office re-opens.

As above, the court's offices currently remain open and, as such, the statute of limitations operates as normal.

How Eversheds Sutherland can help

We remain fully operational during these difficult times and all our lawyers are readily available and contactable at their usual email address or telephone numbers.

If you have any queries or wish to discuss any aspect of this briefing in more detail please get in touch with your usual Eversheds Sutherland contact or:

Pamela O’Neill, Partner and Head of our Dispute Resolution & Litigation Department - pamelaoneill@eversheds-sutherland.ie

Aonghus McClafferty, Associate in our Dispute Resolution & Litigation Department - aonghusmcclafferty@eversheds-sutherland.ie

For support on legal issues facing your business in light of the outbreak of Covid-19, please visit our Coronavirus hub to get our latest information and guidance.

1 The end of the current legal term; the Hilary term

2 Pursuant to section 10 of the Courts (Supplemental Provisions) Act 1961

3 The scheduled start date of the new legal term

4 [1993] 1 IR 484

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