High Court orders lay plaintiff to submit witness list and trial time estimates under new case management rules.

[2017] IEHC 252

THE HIGH COURT

Ruling

[2006 No. 6407 P.]

BETWEEN

KEVIN TRACEY AND KAREN TRACEY

PLAINTIFFS

AND

MICHAEL MCDOWELL, THE MINISTER FOR JUSTICE, EQUALITY

AND LAW REFORM, THE ATTORNEY GENERAL, THE COMMISSIONER OF AN GARDA SIOCHANA, THE DIRECTOR OF PUBLIC

PROSECUTIONS, THE CHIEF EXECUTIVE OF THE COURTS SERVICE, BERNARD NEERY, EDWARD FINCUANE, JOHN KEENAN,

PATRICK FLYNN, JOHN COSTELLO,

DERMOT O’CONNELL, DAVID O’BRIEN

DEFENDANTS

RULING of Mr. Justice Eagar on the Case Management of the above case dated the 2nd day of May, 2017

1. An application has been made by Counsel on behalf of the Courts Service in accordance with s. 42 of the Superior Courts (conduct

of trial 2016) (S.I. 254 of 2016). These rules of the court came into operation on 1st October 2016 and the rules are to be construed

together with the Rules of the Superior Courts. The Rules of the Superior Courts are actually amended by the statutory implements.

2. Order 26, rule 42 (1) provides that an officer of the court may require any party to proceedings to provide a reasoned estimate of

the time likely to be spent in the trial of the proceedings, including a list of the witnesses intended to be called by that party and an

estimated time for the examination or cross-examination, as the case may be. Section 42 subsection 2 provides that the Court may

require any party to proceedings to provide a reasoned estimate of the time likely to be spent in the time of the proceedings,

including ga list of the witnesses to be called by that party, and an estimated time for the examination or cross-examination (as the

case may be) of each witness intended to be called by that party or any other party. The trial of the proceedings shall, as regards

the time available for any step or element, be under the control and management of the trial judge, and the trial judge may from time

to time, make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the

interest of justice.

As this Court may not be the trial court nevertheless in accordance with the application made by Counsel on behalf of all of the

defendants (with the exception of the Chief Executive of the Courts Service) the Court is managing these sets of proceedings.

3. The new set of rules were divided with a view to addressing (a) the delays in the preparation of proceedings for trial and (b) the

excessive lengths of trials arising from a failure to identify in advance of trial and where possible, reduce the issues of fact and law in

dispute of the trial. These rules reflect an increasing recognition of the courts’ role in ensuring expeditious disposition of litigation both

under the national legal order and the obligations of the State pursuant to the European Convention on Human Rights.

4. Irvine J. in the Court of Appeal in Cassidy v. the Provincialate [2015] IECA 74 said:

“In some of the more recent decisions concerning prejudicial delay, reference has been made to the constitutional imperative to bring

to an end a culture of delays in litigation so as to ensure the effective administration of justice and the application of procedures

which are fair and just.”

5. As this case relates to events alleged to have occurred on 28th May, 2001 in which proceedings were issued in 2006 it is clearly an

imperative on the court managing the proceedings to actively intervene to ensure expeditious disposal of the case.

6. Case management by this Court should seek to achieve the following outcomes:

(1) achieving an early settlement of the case at issue in the case where this is practicable;

(2) the diversion of cases to alternative methods for the resolution of the dispute where this is likely to be beneficial;

(3) the encouragement of cooperation between the parties and the avoidance of unnecessary combativeness which is

productive of unnecessary additional expense and delay;

(4) the identification and reduction of issues as a basis for appropriate case preparation; and

(5) when settlement cannot be achieved by negotiation progressing cases to trial as speedily and as little costs as is

appropriate.

7. The trial materials include the rule set out in O. 64, r. 42 of the amended rules. In the management of the above case, the Court is

requiring in the first instance the plaintiff to provide a list of witnesses intended to be called by that party and bearing in mind that

the plaintiff is not represented and is a lay litigant to provide an estimate of the time likely to be spent in the trial of the proceedings.

8. The Court is requiring that the plaintiff provide his list of witnesses which he proposes to call in the proceedings (Reference No.

6407P/2006) by the first date of next term which is the 14th June, 2017.

9. The Court would then make an order requiring the defending parties to also indicate a reasonable estimate of time likely to be spent

in the trial of the proceedings and a list of witnesses intended to be called by those parties. By making this order, unless it is complied

with, I will propose to strike out the plaintiffs’ proceedings in relation to 2006/6407P.

10. One issue that appears to have been raised by the plaintiff in this case is the issue of discovery. In relation to the document

provided to the court on 6th February, 2017 by the plaintiff, this Court notes in relation to discovery, that the discovery was ordered

by the Master of the High Court. Discovery was requested from the Courts Service on 6th January, 2009 but no discovery was

obtained. The Court is requiring the plaintiff to make an application to this Court in relation to any application which the plaintiff has

for discovery in this matter by the 14th of June, 2017.

11. The court is only dealing at the moment with the case of 6407 P of 2006 but proposes to have a case management conference in

relation to the further three cases which have been set down for trial by jury bearing 7939 P of 2007, 8488 P of 2007 and 1840 P of

2008. This conference will be heard on Friday the 19th of May, in respect of three cases.

12. The Court will also expect the parties to be ready to deal with issues in relation to the case 11092 P of 2008 and 11094 P of 2008

on that date. If necessary a further date can be set aside for this purpose.