S.I. No. 348/1997 - Rules of the Superior Courts (No. 7), 1997

S.I. No. 348 of 1997.

RULES OF THE SUPERIOR COURTS (NO. 7), 1997

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48), and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 20th day of December, 1996

I concur in the making of the annexed Rules of Court.

Dated this 13th day of August, 1997

S.I. No. 348 of 1997:

RULES OF THE SUPERIOR COURTS (NO. 7), 1997

1. The following rules shall be inserted as rules 45 to 52 in Order 39 of the Rules of the Superior Courts after rule 44 thereof:

 "VI DISCLOSURE AND ADMISSION OF REPORTS AND STATEMENTS

Definition

45. (1) ( a ) "action" includes any claim for damages in respect of any personal injuries to a person howsoever caused 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 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 ) "reports" includes reports (including reports in the form of a letter), statements 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 shall also include any maps, drawings, photographs, graphs, charts, calculations or other like matter referred to in any such report.

( f ) The following shall also be deemed to be reports for the purposes of this rule:

 (i) any copy report (including a copy report in the form of a letter), copy statement or copy letter however made, recorded or retained and originating from any such expert referred to above the original of which has been concealed, destroyed, lost, mislaid or is not otherwise readily available; and

 (ii) any report, or statement or note or letter made by any person who is not an expert but which reports, records, notes or conveys any relevant opinion from an expert intended to be called to give evidence in relation to an issue in an action.

( g ) Any report, statement or letter from any private investigator shall not be deemed to be a report within the meaning of these rules.

( h ) "the section" means section 45 of the Courts and Court Officers Act, 1995 .

Disclosure of Reports and Statements

46. (1) A plaintiff in an action shall deliver to the defendant or his solicitor (as the case may be) every report or statement mentioned in section 45 (1) (a) (i) and (ii) of the Act within three months of the service of the notice of trial in respect of the action.

(2) A plaintiff shall deliver to the defendant or his solicitor (as the case may be) the information and the statements referred to in section 45 (1) (a) (iii) (iv) and (v) of the Act within two months after the case being first listed for hearing.

(3) A plaintiff who, subsequent to the delivery required by sub rule (1) above, obtains any report or statement within the meaning of the section or the name and address of any further witness shall within twenty eight days from the receipt thereof by him 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 defendant or his solicitor (as the case may be).

(4) A defendant shall within three months from the date of delivery of any report or statement to him pursuant to sub rule (1) deliver to the plaintiff or his solicitor (as the case may be) every like report or statement within the meaning of the section.

(5) Upon delivery by a plaintiff pursuant to sub rule (2) a defendant shall disclose the information required by section 45 (1) (a) (iii) and (v) of the Act (if appropriate) within two months from the date of such service.

(6) If a defendant receives any report, statement or details of any witnesses within the meaning of the section subsequent to the delivery required by sub rules (4) and (5) above or if no such delivery has taken place he shall deliver or furnish details of such report, statement or witnesses (as the case may be) to the plaintiff or his solicitor within twenty eight days from the date of receipt thereof.

(7) Service of any report, statement or information requiring to be 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 prepaid 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 and shall draw to the attention of the party being served the contents of Rule 47 below. 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.

(8) 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 a report or statement or such witness to give evidence in the action.

Notices to Admit Reports and Statements

47. (1) Any party who has served reports or statements referred to in section 45 (1) (a) (i) and (ii) may, at any stage prior to the trial of the action, serve a notice on the party to whom such reports or statements have been delivered requiring that party to admit in evidence any report or statement without requiring that the expert who has supplied such report or statement be called to give viva voce evidence of such at the trial of the action. Such notice shall be in the Form No. 1 in Appendix D Part IV. If any party on whom such notice shall have been served does not in writing agree to admit the statement or report in evidence within twenty eight days of service of such notice on him, such request will be deemed to have been refused upon the expiry of the said twenty eight days.

(2) Any party on whom a statement or report referred to in section 45 (1) (a) (i) and (ii) has been served may, at any stage prior to the trial of the action, serve a notice in the Form No. 2 in Appendix D Part IV on the party who has delivered such report or statement, giving his consent to the report or statement being admitted in evidence and requesting the party who has served such to consent to the report or statement being admitted in evidence without the necessity to call the author of such statement or report to give viva voce evidence of same as a witness in the trial of the action. Any such notice may be expressed to be subject to any exception specified in the notice. Any party served with such notice shall be deemed to have refused the offer to admit the statement or report as evidence at the trial of such action if he does not indicate in writing his consent so to do within twenty eight days from the service of such notice on him.

(3) Any party who has served a statement referred to in section 45 (1) (a) (iv) and (v) may, at any stage prior to the trial of the action, serve a notice on the party to whom the statement has been delivered requiring that party to admit, in the case of statements referred to in section 45 (1) (a) (iv), all items of special damage referred to in the statement without the necessity of giving viva voce evidence of such at the trial, and in the case of the statement from the Department of Social, Community and Family Affairs referred to in section 45 (1) (a) (v), the payments as referred to therein without the necessity of giving viva voce evidence of such at the trial. Such notice shall be as nearly as possible in the Form referred to in sub rule (1). The provisions of sub rule (1) and (2) relating to the steps to be taken after the service of a notice under sub rule (1) shall apply to notices served under this sub rule.

Motion for Directions

48. (1) When any party alleges that any other party to an action has failed to comply with the requirements of rule 46 or 47 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 requirement of the section or these rules, direct compliance with such requirement 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.

(2) In any case in which the Court is satisfied that the solicitor for any party concerned has acted unreasonably or has unduly delayed in failing to comply with a requirement under the section or in failing to comply with any request contained in a notice served under the preceding rules or who has otherwise been in default without reasonable excuse therefor, the Court may order that such solicitor personally bear any of the costs incurred as a result of such failure, delay or default as have or may be awarded to any other party.

Non-Compliance with the Rules

49. 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 case 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.

Objection to the Admission in Evidence of Documents

50. In any case in which objection is taken to the admission in evidence of any report or statement (or any part thereof) to which the section applies and such objection is based upon the ground that such document contains hearsay evidence, the parties may by agreement exclude that part of the document to which objection is taken or in default of such agreement the party objecting to the admission of such evidence may apply to the Court either prior to or at the trial of the action by motion on notice seeking an order that that portion of the report or statement to which the objection relates be excluded from being admitted in evidence under the preceding rules or for an order that such matter to which objection is taken be proved by admissible evidence in the ordinary way at the trial of such action.

Costs

51. The costs of proof of any fact, opinion or other matter contained in a report or statement delivered pursuant to these rules or proved by a witness of whom details have been furnished shall be at the discretion of the Court irrespective of the outcome of such action.

Exceptions

52. (1) In any case application may be made to the Court ex parte by any party for an order that in the interests of justice the provision 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 or may adjourn such application in order that notice of the application in a form and manner to be determined by the Court be given to the party who will or may be affected by the order that is proposed and may make such further order in relation to costs as appears 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."

2. The following shall be inserted as Forms No. 1 and 2 respectively of Part IV of Appendix D to the Rules of the Superior Courts:

"0.39,r.47(1)

PART IV

Notices requesting the admission of evidence contained in a report or statement.

FORM NO. 1

1. Notice requesting the Admission in Evidence of an Expert Report or Statement.

[TITLE OF ACTION]

TAKE NOTICE that as party to the above entitled action and having served the reports and statements set out in the Schedule hereto in pursuance of section 45 (1) (a) (i) and (ii) of the Courts and Court Officers Act, 1995 and pursuant to Order 39, rule 46 the [Insert Plaintiff/Defendant as the case may be] hereby requires you to agree to admit in evidence the contents of the said reports or statements without the necessity to call the author or authors of such reports or statements to give viva voce evidence at the trial of the above entitled action.

AND FURTHER TAKE NOTICE that if you fail or refuse to agree in writing to such request within twenty eight days from the date hereof you will be deemed to have refused such request which may result in an application being made to the Court for an order for the costs of proof of such irrespective of the outcome of such action.

SCHEDULE OF REPORTS AND STATEMENTS

FORM NO. 2

[TITLE OF ACTION]

0.39,r.47(2)

TAKE NOTICE that A.B., on whom the statements and reports set out in Schedule hereto has been served, hereby consents to the contents of the said reports and statements being admitted in evidence and hereby requests XY to consent in writing to the contents of the said reports or statements being admitted in evidence without the necessity to call the author or authors of such statements or reports to give evidence of same in the trial of the action and that you are hereby requested to give such consent within twenty eight days from the date of service hereof.

AND FURTHER TAKE NOTICE that if you fail or refuse to consent in writing to the said request within twenty eight days from the date hereof you will be deemed to have refused such request which may result in an application to the Court for an order disallowing the costs of proof of such.

SCHEDULE OF REPORTS AND STATEMENTS

3. This rule shall come into operation on the 1st day of September 1997.

4. This rule shall be construed together with the Rules of the Superior Courts, 1986 1997 and may be cited as the Rules of the Superior Courts (No. 7) of 1997.

EXPLANATORY NOTE

This rule comes into operation on the 1st day of September, 1997 and provides for an addition to Order 39 of new rules 45 to 52 to make provision regarding disclosure and admission of reports and statements pursuant to section 45 of the Courts and Courts Officers Act, 1995.