As most standard form construction contracts contain arbitration clauses the provisions of Order 56 of the Rules of the Superior Courts 1986, as amended, (“RSC”) which relate to arbitration deserve close scrutiny.
Order 56 of the Rules of the Superior Courts, as inserted by S.I. 361 of 2010 and amended by S.I. 150 of 2012, sets out the procedure to be followed in respect of applications under the Arbitration Act 2010. Section 9 of the Arbitration Act 2010 provides that the functions of the High Court as set out in that Act and in the UNCITRAL Model Law are to be performed by the President of the High Court or such other judge as may be nominated by the President.
The Honourable Mr Justice Barniville is the current designated Arbitration Judge of the High Court with jurisdiction over all arbitration-related applications which come before the High Court under Ireland’s Arbitration Act 2010. The Arbitration Act 2010 applies the UNCITRAL Model Law to all arbitration proceedings in Ireland; both domestic or international.
Order 56, rule 3 RSC provides that the applications brought under the Arbitration Act 2010 are to be commenced by originating notice of motion. The one exception is in respect of applications to stay proceedings to arbitration under article 8 of the UNCITRAL Model Law, where such applications are brought by motion on notice in the proceedings concerned.
Section 11 of the Arbitration Act 2010 provides that there shall be no appeal from any court determination of a stay application; any determination by the High Court of an application for setting aside an award under Article 34 of the Model Law; or of an application under Chapter VIII of the Model Law for the recognition and enforcement of an award made in an international commercial arbitration or pursuant to the Geneva Convention, New York Convention or Washington Convention.
ADR in Court Proceedings
Order 56A RSC, as substituted by the Rules of the Superior Courts (Mediation) 2018 (S.I. No. 13 of 2018) provides that the High Court, either by its own motion or upon the application of a party to the proceedings, may invite the parties to use mediation, conciliation or another alternative dispute resolution process to settle their dispute and may adjourn the court proceedings to allow for this process to take place.
The rules regulating the Commercial List are set out in Order 63A of the RSC. The Commercial List is currently presided over by the Honourable Mr Justice Haughton. The aim of the Commercial List is to facilitate the efficient and speedy litigation and resolution of commercial disputes. Applications for entry to the Commercial List can be made in respect of “commercial proceedings” as defined in Order 63A, rule 1 RSC. The general threshold for entry to the Commercial List is that the proceedings must involve a claim not less than €1,000,000. An application for entry is made by motion on notice, grounded on an affidavit and accompanied by a certificate from a solicitor certifying that the proceedings are commercial proceedings within the meaning of Order 63A, Rule 1 RSC. Practice Direction HC50 sets out that certain undertakings must be given by the individual solicitor signing such a certificate.
Order 63A, rule 5 RSC gives the court a wide discretion to give such directions and make such orders, including the fixing of time limits, for the conduct of proceedings entered in the Commercial List, as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings.
Non Jury List
If a dispute arises out of a construction contract which does not contain an arbitration clause, or where the parties choose not to rely on the arbitration clause, then such proceedings will ordinarily be heard in the Non-Jury List. The Non-Jury List is currently presided over by the Honourable Mr Justice Noonan.
Prior to obtaining a trial date, parties in the Non-Jury List must comply with High Court Practice Direction 75. The practice direction requires that a party must give one month’s notice prior to filing a certificate of readiness and that the parties obliged to consult with each other during the one-month period to ensure that an accurate certificate of readiness is filed. The certificate of readiness requires the parties to confirm, inter alia, whether it is proposed to call expert witnesses and if so, that such experts have prepared and exchanged reports and that there has been a meeting of those experts (if it is not proposed to exchange reports or hold a meeting, an explanation must be provided).
The Circuit Court Practice Direction CC08 applies to cases whether for breach of contract or recovery of monies where the quality of the building works is in issue. The practice direction requires that the following steps, where applicable, are to be taken before setting the matter down for trial:
Steps to be taken before setting down for trial, where applicable:
Schedule of works and costings to be agreed, if possible, and without admission of liability;
Parties should exchange expert reports to be relied on at trial;
Special damages should be vouched and agreed, where possible, without admission of liability;
Parties should agree a book of photographs to be relied on at trial;
Parties should prepare and file an agreed and numbered book of pleadings and book of correspondence inter partes;
Parties should prepare and file an agreed and numbered book of documents containing the relevant pre-contract correspondence, formal contract (if any), plans, bills of quantities etc, where possible.