knowledge | 20 March 2020 |
COVID-19: Litigation and Dispute Resolution Update
The outbreak of Covid-19 (Coronavirus) in Ireland has led to a necessary scaling back in the work of the courts and of other bodies charged with resolving disputes in a number of business contexts. This briefing is to provide some practical guidance on the position of the courts and of litigation generally and on issues that businesses are likely to face. This briefing is up to date as of 20 March 2020 and will be updated as further developments arise.
Critically, while the relevant bodies have introduced a necessary scaling back in some circumstances, businesses should rest assured that where urgent matters relating to their business arise, the courts will be available to assist them where appropriate.
What hearings and in-person litigation activity are still going ahead?
The Superior Courts
The latest statement issued by the Courts Service1 sets out the position of each court jurisdiction:
- In the High Court as of 18 March 2020, all Non Jury, Judicial Review, Chancery, Commercial and Family Law cases are adjourned generally with liberty to re-enter – that effectively means that all matters currently listed for hearing are no longer going ahead. For the remainder of this court term (which ends on 3 April 2020), judges are available to deal with urgent applications in respect of six types of business: bail matters; extradition matters; habeas corpus; wardship; injunctions and their enforcement; and urgent applications for Judicial Review. We also understand that the High Court will likewise deal with urgent examinership applications and urgent winding up petitions. All matters adjourned in light of these directions will be given new dates for hearing when the High Court lists are re-instated. There is, as of yet, no indication as to when this will be but in any event it will not be before the Easter vacation, which is from 3 April 2020 to 20 April 2020.
The position of the Court of Appeal and of the Supreme Court is that all matters listed for hearing up to the end of the legal term on 3 April will be adjourned on consent. Adjournment applications are being dealt with remotely via email. Where a party does not consent to adjournment, that party must demonstrate particular urgency by writing to the relevant Registrar. The parties to a case are not required to attend court for the delivery of judgment. New Court of Appeal and Supreme Court hearing dates “will be fixed for hearing at the earliest possible available opportunity when the situation sufficiently improves”.
At the current time, it is unclear how long these restrictions will continue. It is worth noting that section 26 of the Civil Law (Miscellaneous Provisions) Act 2008 authorises the conduct of civil proceedings by videolink. This could facilitate the hearing of certain actions. However, as of yet, there is no indication that this provision will be relied on, except in the case of bail where it is already in routine use.
The Workplace Relations Commission ("WRC")
The WRC has postponed all adjudication hearings, conciliation meetings, face to face mediations, and on-site inspections from 13 March until 29 March 2020. However, in the interim the WRC remains open for business and parties can submit complaints for adjudication online.2
The Labour Court has suspended all scheduled hearings until 29 March 2020. Appeals and referrals can be submitted to email@example.com up to 12 midnight on the 42nd day following the making of a decision by the Adjudication Officer.
Personal Injuries Assessment Board ("PIAB")
PIAB continues to operate via the usual methods (post, email, phone and website) and will post any change on its website. All independent medical examinations arranged from 18 March up to and including 30 April 2020 have been cancelled.
How does Covid-19 disruption affect limitation periods?
The position of the Courts Service is that all court offices remain open (with logistical changes to allow for social distancing) which will facilitate the lodging and filing of documents in all proceedings. Those arrangements as they stand mean that the majority of court hearings are adjourned for now, but the relevant limitation period to initiate proceedings as provided for by the Statute of Limitations 1957 or by other statutory regimes is unaffected. Similarly, procedural rules concerning the time limits for making filings or lodging documents in the relevant court office are unaffected as long as all offices remain open.
If the current position is reviewed and court offices are closed or made temporarily unavailable or other restrictions are introduced, statutory limitation periods may have to be paused so that time does not run while court offices are unavailable to parties and practitioners and time starts to run again when the relevant office re-opens. The Rules of the Superior Courts already provide that if the last day on which a plaintiff may initiate proceedings within the limitation period falls on a day when the court offices are closed, the plaintiff has until the end of the next day when the court offices are open within which to issue proceedings.3 McCann FitzGerald will continue to provide updates on any changes in this regard, and in particular if there is any specific statutory amendment.
Issues going forward
Where the implications of Covid-19 affect commercial obligations and there is a potential for litigation, clients should be mindful of the following considerations:
- The contract containing those obligations may contain a force majeure clause which, if applicable in the circumstances, has the effect of suspending the parties’ mutual obligations affected by Covid-19 as the external trigger, until that event subsides. A force majeure clause will only be applicable however if there is some specific reason linked to Covid-19 that prevents performance of a particular obligation under the contract. Force majeure will provide a defence to a breach of contract claim against the party in default. It is advisable generally that notice of intention to rely on a force majeure clause be served on the other party in the manner provided for in that contract. For their part, the party facing a breach should take steps to mitigate the potential harm that they might suffer as a result of the breach, by putting contingency arrangements in place to the extent possible.
- Where a contract is silent on force majeure or the clause is not applicable, the doctrine of frustration may come into play in the alternative. Frustration is established where a situation outside the control of the parties prevents the performance of the contract and was both unforeseen and unforeseeable. The effect of frustration differs from force majeure in that it fully discharges the entirety of an otherwise valid contract and it is difficult to prove in practice. McCann FitzGerald have published a detailed briefing on commercial contracts and force majeure in the context of Covid-19 which is available here.
- Businesses requiring injunctive relief in the High Court come within the class of specified applications which the High Court will continue to hear while other matters are adjourned. McCann FitzGerald have published a briefing “Covid-19: Seeking injunctive relief before the courts” which is available here.
- A critical issue will be the extent of any cover that a business has under any relevant insurance policy, that might be triggered as a consequence of the current circumstances, and McCann FitzGerald have published a briefing “Covid 19 – Issues Around Insurance Cover for Business” which is available here.
How can we help?
The Disputes Group at McCann FitzGerald is ready and willing to assist clients in addressing all of their concerns at this difficult time, whether that arises in respect of regulatory and/or litigation issues business may face in responding to Covid-19. Alternatively, your usual contact in McCann FitzGerald will be pleased to provide further information.
- Courts Service Announcement of 16 March 2020 - https://beta.courts.ie/content/covid-19-statements-president-each-jurisdiction-updated-monday-16th-march-630pm.
- Order 122 rule 3, Rules of the Superior Courts, Poole v Sullivan  1 IR 484.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.