A range of important decisions were handed down by the Irish courts this year. We examine three key decisions that are relevant for those engaged in commercial disputes. For organisations or individuals who may find themselves navigating contentious scenarios, they offer valuable insights and guidance for future legal strategies.
Non-compliance with the Mediation Act will have cost consequences
Legal costs are relevant to all parties involved in disputes. While the general rule is that the losing party is typically responsible for the winner’s costs on a party-and-party basis, exceptions to this principle can and do arise. One noteworthy decision this year saw a successful party's recoverable costs reduced. The reduction was imposed because the party’s solicitor failed to comply with their statutory obligation under the Mediation Act to advise their client, prior to issuing legal proceedings, about the option of mediation as an alternative means of resolving the dispute. The ruling underscores the courts’ commitment to ensuring parties adhere to their pre-litigation obligations regarding mediation.
The importance of expert witness impartiality is confirmed
Many disputes require the gathering and presentation of expert evidence. There is a growing body of case law outlining the obligations and expectations placed on expert witnesses. Parties who need to rely on expert evidence to support their case should understand that the expert’s duty is to the court first and foremost. Independence and impartiality are critical. An expert witness who advocates for the party retaining them or who expresses strong views on the case may actually do that party a disservice.
Beware of not progressing arbitration
Although the default mechanism is to litigate disputes before the courts, many parties’ contractual arrangements provide for arbitration. If a court refers a case to arbitration at the request of one party, it will expect that party to progress the arbitration to a conclusion. Failure to do so may result in the stay of the court proceedings pending arbitration being lifted.
Conclusion
Lawyers are obligated to advise clients about mediation before proceedings are commenced. Failure to do so will likely have adverse cost consequences for their client.
The courts have also reiterated that expert witnesses are not to be mouthpieces for the party retaining them and, if they are, their evidence will carry less weight and may be disregarded.
For those with arbitration clauses in their agreements, it is important to note that if the court is asked to stay proceedings in favour of arbitration, the applicant is expected to advance the arbitration.
Outlook in 2025
Looking ahead to 2025, the Irish dispute resolution landscape is set to evolve further with a continued emphasis on alternative dispute resolution mechanisms, including mediation and arbitration. Failure to advise clients of the option to mediate a dispute before issuing legal proceedings will have direct cost consequences for the plaintiff party.
The independence and impartiality of expert witnesses will be closely scrutinised by the courts. As more and more cases involve the instruction of experts, it is important that the experts and the parties instructing them know what the expert’s duties are and that they are complied with.
With increased regulation across a number of industry sectors and more significant fines imposed on the non-compliant, the number and complexity of regulatory disputes will continue to grow in this jurisdiction.
For more information and expert advice on commercial disputes, contact a member of our Commercial Disputes team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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