Litigation and enforcement in UK (Northern Ireland): overview
A Q&A guide to dispute resolution law in Northern Ireland.
The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.
To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.
This Q&A is part of the global guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-guide.
Main dispute resolution methods
The main method for resolving large commercial disputes in Northern Ireland is civil litigation in the High Court of Northern Ireland. This is an adversarial process, in which a claimant must prove its case on the balance of probabilities in order to succeed.
The rules and procedures for litigation in the High Court are set out in the Rules of the Court of Judicature (Northern Ireland) 1980 (Rules). The procedure is broadly that (see Question 9):
The parties exchange pleadings (the statement of claim, defence and reply).
The parties exchange discovery.
The case is heard by a judge at trial.
The courts actively encourage the exchange of early and full information about prospective legal claims to enable parties to avoid litigation, where possible. Even where litigation cannot be avoided, the majority of cases settle before reaching trial and judgment.
Another popular form of dispute resolution, particularly in complex claims arising out of construction contracts and cross-border disputes, is arbitration.
Arbitration is a private and confidential process where an independent arbitrator(s) finally resolves the issues in dispute.
Arbitration proceedings are governed by the Arbitration Act 1996 and any arbitration agreement made between the parties. The process is a flexible one, even though arbitration proceedings are often conducted in a similar manner to court litigation, with both parties producing detailed written submissions, exchanging all of the relevant documents and having a hearing at which witnesses are called to give evidence and be cross-examined.
ADR is actively encouraged by the courts (see Question 30). In recent years, there has been a dramatic increase in the popularity of mediation as a method of ADR, and the commercial judge regularly encourages parties to consider mediation as part of his directions for the case management of High Court proceedings.
Adjudication is a popular method of ADR within the Northern Irish construction industry and the courts have seen an increase in the number of claims for the enforcement of adjudicators' decisions since the first published adjudication enforcement judgment of the Northern Irish courts was delivered in 2009.
The Limitation (Northern Ireland) Order 1989 sets out the relevant limitation periods under the law of Northern Ireland.
The applicable limitation period will depend on the underlying cause of action of the claim. The most relevant to large commercial disputes are:
A simple contract claim: a limitation period of six years from the date of the breach of contract.
A claim in tort, excluding personal injury and latent damage: a limitation period of six years from the date that the claimant suffers damage.
Defamation: a limitation period of one year from the date on which the cause of action accrues.
Personal injury: a limitation period of three years from the date on which the cause of action accrues or, if later, the claimant's date of knowledge.
Deeds: a limitation period of 12 years from the date on which the cause of action accrues.
A claim for the recovery of land: a limitation period of 12 years from the date on which the cause of action accrues.
Article 11 of the Limitation (Northern Ireland) Order 1989 provides for a special time limit for negligence actions where the material facts relevant to the cause of action are not known to the claimant at the date of the accrual of action. In these cases, the limitation period is three years from the claimant's date of knowledge, subject to an overriding time limit of 15 years from the defendant's negligent act or omission.
Time will not begin to run until the claimant has, or could with reasonable diligence have, discovered the fraud, concealment or mistake, when either:
An action is based upon the fraud of a defendant.
Any fact relevant to the claimant's cause of action has been deliberately concealed from it by the defendant.
The action is for relief from the consequences of a mistake.
Issuing a writ stops time running for that cause of action. Failure to bring a claim within the relevant limitation period means that the defendant can plead that the claim is statute-barred.
The High Court in Belfast is the first instance court that hears complex disputes above a financial limit of GB£30,000.
The relevant divisions of the High Court for commercial disputes are:
The Queen's Bench Division, which deals with claims involving tort (including personal injury claims, accidents at work and medical negligence), breach of contract and defamation. The commercial list is a specialist list within the Queen's Bench Division, in which a designated commercial judge hears disputes where the parties are businesses, usually involving breach of contract or torts.
The Chancery Division, which deals with claims involving bankruptcies and the winding up of companies, land and property matters, including enforcement of mortgages, trusts, partnerships, company and intellectual property.
Where the value of the case is less than GB£30,000, the case is usually commenced in the County Court. There are seven geographical divisions of the County Court in Northern Ireland.
The answers to the following questions relate to procedures that apply in the High Court.
Rights of audience
Rights of audience/requirements
Barristers have rights of audience in every court in Northern Ireland. Solicitors traditionally had rights of audience in the County Courts, but only have limited rights in the higher courts.
Private individuals can issue and carry on proceedings in the High Court in person. A corporate body may only issue and carry on proceedings in the High Court by an employee with the leave of the court.
A member of the Bar of England and Wales can apply for temporary membership of the Inn of Court of Northern Ireland and of the Bar of Northern Ireland for the purpose of conducting a particular case or cases that arise out of the same facts or involve the same point of law.
It is rare for foreign lawyers (other than from England and Wales) to conduct large commercial cases in Northern Ireland. However, European lawyers (as defined in the European Communities (Services of Lawyers) Order 1978) may conduct a case provided that they are instructed with, and act in conjunction with, a barrister or solicitor who would ordinarily be entitled to conduct the case.
Fees and funding
Most law firms' fees are calculated on the basis of the time spent by reference to an hourly rate. Largely as a result of the uncertainty about what issues will be raised in large commercial disputes, fixed fees for this type of work are rare. Conditional fee agreements are not permitted in Northern Ireland and so solicitors cannot take on a case on a no-win no-fee basis.
The vast majority of large commercial disputes are privately funded by the parties themselves. These cases are likely to be outside of the scope of the Northern Ireland legal aid scheme. There is limited availability of after-the-event insurance, which is an insurance policy taken out after the event that is the subject matter of the proceedings and covers some or all of the potential costs liabilities in those proceedings. Parties may also have other insurance policies that cover litigation costs and it is generally advisable to seek advice from an insurance broker.
Normally, unless a hearing is required by statute or the Rules to be in private, all proceedings take place in open court and are accessible by the public and the media. A judge has the discretion to direct that such matters (if any) in the proceedings as he may specify be disposed of in chambers. When a judge is sitting in chambers, the sitting is in private and only the parties and their representatives are entitled to be present. Hearings in chambers normally take place in a hearing room rather than in the judge's private room. It is open to either party to raise with the court the question of whether the matter should be heard in chambers if one of the parties wishes the matter to be heard privately.
Pre-action protocols are in force for:
Personal injury actions.
Clinical negligence actions.
The courts actively encourage the exchange of early and full information about prospective legal claims to enable parties to avoid litigation, where possible, and to support the efficient management of proceedings where litigation cannot be avoided. Any failure to comply with a relevant pre-action protocol can be taken into account in the exercise of the court's discretion on costs (see Question 22).
Civil proceedings in the High Court can be commenced by writ. A writ is issued out of the court office upon payment of the relevant fee. A writ is valid in the first instance for 12 months (beginning with the date of its issue) and should be served within that time frame in accordance with the provisions of Order 10 of the Rules.
If the statement of claim is not indorsed on the writ, it should be served on the defendant within six weeks after the defendant(s) enter a memorandum of appearance. The statement of claim is usually signed by the party's solicitor or counsel. No statement of truth is required.
Notice to the defendant and defence
Once the defendant is served with a writ, it must enter a memorandum of appearance (a request to the appropriate office to enter an appearance for the defendant or defendants specified in the memorandum) by submitting an original and two copies to the appropriate office. If the writ is served in Northern Ireland, the time limited for entering a memorandum of appearance is normally 14 days after service of the writ.
If the writ is indorsed with a statement of claim, the defendant should also serve its defence on the claimant within six weeks of the later of the time limited for entering a memorandum of appearance or after the statement of claim is served. If the defence includes a counterclaim, a court fee will be payable.
A reply to any defence must be served by the claimant within 21 days after the service of that defence, and a defence to counterclaim must be served by the claimant within 21 days after the service of the counterclaim.
The pleadings in an action are deemed to be closed at the expiration of 21 days after service of the reply.
After the close of pleadings in an action, the subsequent stages of the litigation include:
Discovery and inspection of documents, which is the process where the parties to the action disclose to each other the documents that are, or have been, in their possession, custody or power relating to matters in question in the action.
The exchange of expert reports, which are used to assist the court to decide on matters within the expert's specialist expertise (see Question 19).
The fixing of a date for the hearing of the action.
Where a case is transferred to the commercial list, the Commercial Judge will issue a set of directions and then sit at regular intervals to progress the case management of the litigation.
A claimant can apply for summary judgment on the ground that the defendant either:
Has no defence to all or part of a claim included in the writ.
Has no defence to all or part of a claim included in the writ except as to the amount of any damages claimed.
Order 14 of the Rules sets out the procedure for making an application for summary judgment.
A claimant can enter judgment if a defendant does not file a memorandum of appearance within the time limit set out in the Rules (see Question 9). Order 13 of the Rules sets out the procedure for entering judgment in default of a memorandum of appearance. Judgment can be entered only after the claimant has filed an affidavit proving service of the writ on the defendant.
A claimant can also enter judgment if a defendant does not serve its defence within the time limit set out in the Rules, and the procedure for doing this is set out in Order 19 of the Rules.
Either party can apply to the court, at any stage of the proceedings, to strike-out or amend anything in any pleading on the grounds that either:
It discloses no reasonable cause of action or defence.
It is scandalous, frivolous or vexatious.
It may prejudice, embarrass or delay the fair trial of the action.
It is otherwise an abuse of the process of the court.
Strike-out applications are rarely used.
A defendant can apply for the claimant to provide security for its costs, and the court has discretion concerning both whether to require security for costs and the amount of that security. A defendant can make an application on the following grounds:
The claimant is ordinarily resident outside of Northern Ireland.
The claimant is a nominal claimant and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so.
The claimant's address is not stated or is incorrectly stated in the writ.
The claimant has changed its address during the course of the proceedings with a view to evading the consequences of litigation.
The claimant is a company and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so.
Availability and grounds
An application for an interlocutory injunction can be made at any stage in any proceedings. If the case is urgent, the court can grant an injunction before the commencement of proceedings. The court will grant an interlocutory injunction in circumstances where:
There is a serious question to be tried.
Damages would not be an adequate remedy.
The balance of convenience lies in favour of granting an injunction.
The court will weigh up the prejudice likely to be suffered by the claimant if an interlocutory injunction is not granted against the prejudice likely to be suffered by the defendant if an interlocutory injunction is granted. Where the factors appear to be evenly balanced, the court will take steps to preserve the status quo.
If an application is urgent, it can be made ex parte or the court can abridge the time for service of the application to allow it to be heard on the same day that notice is given. An application can also be made ex parte where there is a need for surprise (see Question 13).
If the application is made ex parte, the applicant has a duty to make full and frank disclosure of all relevant facts known to it. It is usual for a claimant to provide a cross-undertaking in damages when an injunction is granted ex parte.
Mandatory injunctions are available in Northern Ireland but are rarely granted by the courts.
Right to vary or discharge order and appeals
A defendant can apply to the court to set aside an injunction obtained ex parte. The order will usually provide that the defendant can apply to the court at any time to vary or discharge the order.
Where an ex parte order is granted, an early return date will normally be given for the inter-partes hearing.
In other cases, an interlocutory order for an injunction of a master can be appealed to a High Court judge in chambers. An interlocutory order for an injunction of a High Court judge can be appealed to the Court of Appeal, but leave is required.
Availability and grounds
The court has the power to grant a freezing injunction (also called a mareva injunction), which prevents a defendant from disposing of its assets or removing assets from Northern Ireland to make a judgment for damages unenforceable.
The claimant must establish that:
It has a good, or properly arguable, case.
There is a real risk that the defendant will dissipate or remove its assets to frustrate the enforcement of any judgment made against it.
The order will usually provide that the defendant can apply to the court at any time to vary or discharge the order, upon giving 48 hours' notice to the claimant's solicitors.
If an application is urgent, it can be made ex parte or the court can abridge the time for service of the application to allow it to be heard on the same day that notice is given. A mareva injunction is normally obtained ex parte, without prior notice to the defendant, in order to maintain the element of surprise.
The High Court has the power to grant a mareva injunction in support of foreign proceedings (section 25, Civil Jurisdiction and Judgments Act 1982).
Preferential right or lien
A mareva injunction does not create any preferential right or lien in favour of the claimant over the assets covered by the injunction.
Damages as a result
The claimant will usually be required to provide a cross-undertaking in damages for the loss that the defendant may suffer as a result of the mareva injunction between the time of the application and the time of trial.
If there is a doubt as to the efficacy of any cross-undertaking in damages offered by the claimant, the court can order the claimant to provide security or refuse to grant the mareva injunction.
The court has the power to grant a search order (also called an anton piller order), which requires a defendant to allow the claimant's solicitor to enter its premises and search for and seize all items covered by the order.
An order for the remittal or transfer of proceedings from the High Court to the County Court can also be made. Applications for the remittal of proceedings are normally made by defendants.
The remedies available at the full trial stage include:
Specific performance of an obligation.
Rescission of a contract or deed.
An account of profits.
An order for sale of property.
A claimant must prove its case on the balance of probabilities in order to succeed. Damages are generally compensatory but the court can award exemplary damages, which are punitive rather than compensatory, where a defendant deliberately and recklessly disregards a claimant's rights.
Any party to an action must discover to the other party those documents that are, or have been, in his possession, custody or power relating to any matters in question in the cause or matter irrespective of whether the documents are helpful or harmful to that party's case.
The rules governing the discovery process are set in Order 24 of the Rules. The parties to an action between whom pleadings are closed must make discovery by exchanging lists of documents within 14 days after the pleadings in the action are deemed to be closed (see Question 9). A party can, at any time within one month after the pleadings in the action are deemed to be closed, serve on the other a notice requiring it to make an affidavit verifying its list.
If a party does not comply with its discovery obligations, the opposing party can apply to the court for an order that the action be dismissed or that the defence be struck out and judgment entered. However, the court will normally make an "unless order" (an order compelling the party to complete discovery within a certain time frame) before imposing such a draconian sanction.
A document will only be protected by the law of privilege if it falls within one of the accepted categories. The most relevant of these are as follows:
Legal advice privilege. Protection is afforded to confidential communications between a solicitor, barrister, trainee or paralegal and their client that came into existence for the purposes of giving or obtaining legal advice.
Privilege can be asserted by the client's successors in title and extends to direct and indirect communications between solicitor and client. Additionally, it extends to all documents generated for the purposes of giving or obtaining legal advice and all the working papers and associated drafts.
Litigation privilege. Litigation privilege is significantly wider than legal advice privilege on the basis that from the time when litigation is in "prospect" or "pending", all communications between a solicitor, or his agent, and a third party will be protected.
These communications will only be protected if they came into existence for the sole or dominant purpose of giving or obtaining advice in regard to the litigation or collecting evidence for use in the litigation.
"Without prejudice" privilege. This applies to communications made between parties, or their solicitor or agent, in a genuine attempt to resolve the dispute.
Communications made between co-defendants for the purposes of exploring a compromise, or negotiating a settlement, are also protected.
Communications between in-house lawyers and the company are also regarded as privileged if they were made for the purpose of giving legal advice.
Other non-disclosure situations
Either party can request that the court take steps to safeguard confidential information if this is deemed to be appropriate but documents will not be regarded as privileged solely on the basis of their confidentiality. Parties can also agree measures to protect the confidentiality in documents such as confidentiality undertakings or controlled circulation.
Examination of witnesses
Witnesses of fact typically give oral evidence in open court. While a witness statement is not a pre-requisite to giving oral evidence at trial, the court can direct witness statements or evidence by affidavit, and will often do so in relation to disputes of fact.
The court can order that the affidavit of any witness can be taken as his or her evidence at the trial without requiring the witness to appear to give oral evidence but either party can apply for an order that the witness attend for cross-examination. Where such an order is made and the witness does not attend, the affidavit will not be used as evidence without the leave of the court.
Right to cross-examine
Opposing counsel can question any witness who is called regardless of whether they have been examined in chief. There is a further opportunity for examination of the witness by the party's legal representative to address any issues raised in cross-examination.
Third party experts
Parties usually instruct their own experts, though consideration should always be given to the instruction of a single joint expert. The appointment of a single joint expert does not prevent the parties from instructing their own expert, but that expert's fees may not be recoverable. The court can also appoint an expert.
In the commercial list, a party intending to call an expert witness, or to serve an expert's report, should notify that intention to the commercial judge at the earliest opportunity and be prepared to justify the need for retaining that expert.
Role of experts
An expert witness always owes a duty to the party who instructs them. However, where an expert has been instructed to prepare evidence for the purposes of court proceedings, the expert owes a duty to assist the court on matters within their expertise, and that duty overrides the duty owed to the instructing party.
Right of reply
In the commercial list, the court generally directs that expert reports be exchanged as soon as practicable, normally after the discovery of documents. Following the exchange of reports, which can be either sequential or simultaneous, the experts are usually directed to meet to attempt to agree evidence, identify and, if possible, reduce disputed issues in relation to both liability and quantum. The experts' meeting is minuted.
Parties can rely upon the expert's written report at trial, particularly if doing so will not compromise a party's presentation of its case, but it is commonplace for experts to be called to give oral evidence. Unless the court orders otherwise, the number of expert witnesses who can be called by any party to give oral evidence at trial is limited to two medical experts and one other expert.
The commercial judge has directed, in certain cases, that experts give their evidence concurrently, where experts from the same discipline give evidence at the same time. The process, commonly termed "hot tubbing", allows the judge to question all of the experts simultaneously.
An expert's fees are paid by the party who has instructed the expert. Arrangements where the amount or payment of the expert's fees is dependent on the outcome of the case are not permitted.
The court may require a party instructing an expert to produce a costs budget, setting out the projected costs of engaging an expert to produce a report and to attend as a witness. Where the court directs a costs budget, an expert's report and his evidence will not be admitted unless the costs budget has been approved by the court.
In most cases, a judgment, order or decision of a master can be appealed to a High Court judge in chambers.
A High Court judgment can be appealed to the Northern Ireland Court of Appeal. Order 59 of the Rules sets out the procedure. An appeal to the Court of Appeal is brought by way of a "notice of appeal". Leave is required to appeal a judge's interlocutory order but not a final order.
Grounds for appeal
The grounds of an appeal should be set out in the notice of appeal and can include that the decision is either:
Wrong. To prove that a decision is "wrong", the appellant will have to demonstrate an error of law, an error of fact or an error in the exercise of the court's discretion.
Unjust because of a serious procedural or other irregularity.
Notice of an appeal to a High Court judge in chambers must be issued within five days after the judgment, order or decision.
The time limits for serving a notice of appeal are set out in Order 59 of the Rules. The most relevant are within:
21 days in the case of an interlocutory order.
21 days in the case of a summary judgment.
28 days in the case of an order in proceedings under the Insolvency (Northern Ireland) Order 1989.
Six weeks in the case of other final orders.
Where numerous parties have the same interest in a claim, proceedings can be brought by one party as representative of all (representative action). The procedure relating to representative actions is set out in Order 15 of the Rules. Representative actions are "opt in" proceedings. Any judgment obtained in a representative action will be binding on all of the parties represented by the claimant, but will not be enforceable against a non-party except by leave of the court.
Representative actions are funded in the same ways as other litigation (see Question 6), with the parties represented by the claimant usually agreeing a percentage contribution to the costs.
Where more than one action giving rise to the same or similar question of fact or law is brought in the same division, the court has the power to order that the actions either:
Be heard together.
Be heard consecutively.
The general rule is that a successful party should recover its costs (including court fees and the reasonable costs of its solicitor, barrister and any expert) from an unsuccessful party. However, the court can depart from that rule and has a wide discretion to determine by whom and to what extent costs are to be paid. When exercising its discretion, the court will consider:
Any payment of money into court and the amount of that payment.
The conduct of the parties.
The reasonableness of calling witnesses to give oral evidence.
The court can also take the terms of a without prejudice save as to costs letter into account in exercising its discretion, but it is not a substitute for a payment into court, where a payment into court is appropriate.
Taxation of costs is a judicial process to determine the amount of costs to be paid, where the amount of the costs cannot be agreed between the parties. The amount of costs that any party will be entitled to recover is the amount allowed after taxation on the standard basis, unless it appears to the court to be appropriate to order costs to be taxed on the indemnity basis. The indemnity basis is a more generous basis of taxation.
Order 22 of the Rules provides for a formal procedure where a party can make a payment of money into court (commonly referred to as a lodgement) that the payer believes is a reasonable figure to settle a case, but which the other party will not accept. If the other party does not "beat the lodgement" by being awarded a higher sum by the judge, they may not have all their costs paid by the losing party and may have to pay the costs of the other party from the date of the lodgement.
Enforcement of a local judgment
A judgment creditor can apply to the Enforcement of Judgments Office (EJO) for enforcement of a local judgment. The EJO has responsibility for enforcing court orders for the recovery of money, property and goods. The EJO's powers are provided for in the Judgments Enforcement (Northern Ireland) Order 1981. The most frequent orders made by the EJO include:
An attachment of earnings order, where deductions are made by an employer from a judgment debtor's wage or salary and sent to the EJO.
Installment orders under which fixed weekly or monthly payments are required to be made to the EJO, for onward payment to the judgment creditor, until the debt is paid.
An order charging land, allowing any profit from the sale of a judgment debtor's real property to be used to pay the judgment debt before the debtor receives any money.
An order appointing a receiver over the judgment debtor's assets.
Garnishee orders, which allow the EJO to take money directly from a judgment debtor's bank account to pay the judgment debt.
The EJO also has the right to seize property and sell it off at auction using the proceeds to pay the outstanding debt. A judgment creditor can also commence insolvency proceedings against the debtor. If an individual is adjudicated bankrupt or, in the case of a company, a winding-up order is made, the judgment debtor's assets will be distributed among its creditors in accordance with insolvency law.
The court will ordinarily always respect the parties' choice of governing law in a contract unless it is considered to be contrary to public policy, illegal or made in bad faith. The party relying on the foreign law will have the burden of establishing the substance of the foreign law and will normally use the assistance of experts in the relevant foreign law.
The court will respect the choice of jurisdiction in a contract. In the case of an exclusive jurisdiction clause, the claimant must demonstrate clearly and precisely that the defendant agreed to the choice of jurisdiction.
If the choice of jurisdiction is non-exclusive, the court can claim jurisdiction. The relevant rules on jurisdiction are principally found in:
Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation).
Regulation (EU) 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters (recast) (Recast Brussels Regulation).
Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention) (signed in Lugano on 30 October 2007).
Civil Jurisdiction and Judgments Act 1982.
The default means of service is personal service on a defendant. However, subject to the provisions of the Rules, service can be effected either:
By leaving the document at the proper address of the person to be served.
Under section 1139 of the Companies Act 2006, a document can be served on a company registered in Northern Ireland by leaving it at, or sending it by post to, the company's registered office.
Where the documents to be served emanate from an EU member state, service is regulated by Regulation (EC) 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters (Service of Documents Regulation). The primary means of service under the Service of Documents Regulation is through the Master (Queen's Bench and Appeals). The documents to be served should be sent to the Master (Queen's Bench and Appeals) with a translation into English or a language that the defendant will understand.
Article 14 of the Service of Documents Regulation also provides for service by registered letter with acknowledgement of receipt or equivalent.
The UK is also a party to the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention) and other bilateral service conventions. The procedure for service under the Hague Service Convention is set out in Order 69 of the Rules and is carried out by sending a written request for service to the Master (Queen's Bench and Appeals).
An application for the taking of evidence from a witness in Northern Ireland for use in foreign proceedings must be made under the Evidence (Proceedings in Other Jurisdictions) Act 1975. The procedure governing the application is contained in Order 70 of the Rules. The application must be made ex parte and must be supported by affidavit, which should state:
The name and address of the witness to be examined.
A schedule of topics for witness examination.
Whether or not the witness is required to produce documents relevant to the foreign proceedings and, if so, a schedule detailing these.
The name of the examiner (or a request that an examiner of the court be appointed).
It is also possible for the examination of the witness to be carried out by the requesting party's legal representative who is engaged in the foreign proceedings. In that case the affidavit must include a statement that the examiner is a fit and proper person to conduct the examination of the witness.
The UK is a signatory of the HCCH Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 (Hague Evidence Convention), which applies where the requesting court is also a signatory.
Enforcement of a foreign judgment
Judgments from England, Wales and Scotland can be enforced in Northern Ireland under the Civil Jurisdiction and Judgments Act 1982.
Judgments from EU member states can be enforced in Northern Ireland under the Brussels Regulation.
Judgments from EU member states (save for Denmark) given in proceedings commenced on or after 10 January 2015 can be enforced in Northern Ireland under the Recast Brussels Regulation.
Judgments from EU member states and Iceland, Switzerland and Norway can be enforced in Northern Ireland under the New Lugano Convention.
The UK is also party to bilateral treaties, which provide for the reciprocal recognition of judgments. The Administration of Justice Act 1920 (1920 Act) covers the enforcement of judgments from countries including:
British Virgin Islands.
The Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) covers the enforcement of judgments from countries including:
The procedure for enforcing a judgment under the 1920 Act or the 1933 Act is set out in Order 71 of the Rules.
Where none of the above provisions apply, money judgments from other jurisdictions, including the US, may still be enforceable at common law. The foreign judgment will only be enforced in circumstances where:
The foreign court had jurisdiction.
The foreign judgment was not obtained by fraud.
The foreign judgment is not contrary to public policy or natural justice.
The foreign judgment is final and conclusive.
The foreign judgment is for a definite sum of money.
Alternative dispute resolution
The vast majority of disputes settle before trial and judgment. The main ADR methods used in Northern Ireland are:
Joint consultation. The most popular method of ADR is a form of without prejudice negotiation in which the parties are represented by their solicitors and barristers. Although the process is flexible, discussion is normally advanced by the solicitors and barristers, who report back to their clients. The process is only binding where the parties reach a mutually acceptable compromise.
Mediation. A confidential and consensual process in which an independent third party assists the parties to resolve their dispute. The process is only binding where the parties reach a mutually acceptable compromise. The mediator cannot impose an outcome on the parties.
Adjudication. Parties to a construction contract have a statutory right to refer a dispute to adjudication. The adjudicator's decision is binding on an interim basis, that is, until the dispute is finally determined by arbitration, litigation or agreement.
Expert determination. The resolution of a dispute by an expert, such as an accountant or surveyor, who makes a final and binding determination of the dispute. The process is most usually provided for as the dispute resolution method in commercial agreements and is often seen in shareholder agreements and leases.
Parties should consider whether some form of ADR would be more suitable than litigation and, if so, endeavour to agree which form to adopt. However, no party can be forced to mediate or enter into any form of ADR.
ADR is actively encouraged by the courts. Where the parties decide to use an ADR process, the court will ordinarily facilitate the effective use of that process. The court can order that proceedings or any issue be adjourned and invite the parties to use an ADR process to settle or determine the proceedings or issue. Where the parties consent, the court can refer the proceedings to an ADR process.
An unreasonable refusal to engage in an ADR process can be taken into account in the exercise of the court's discretion on costs (see Question 22).
The procedures for giving evidence will depend on the method of ADR. The parties can agree the procedure for giving evidence at the outset.
In mediation, it is common for the parties to exchange position papers supported by copies of the key documents on which they will rely. Documents exchanged in the context of mediation are confidential.
In adjudication, the referring party typically serves copies of all of the documents on which it relies with the referral notice. Copies are sent to the adjudicator and the responding party. Similarly, the responding party will serve copies of all of the documents on which it relies along with its response to the referral.
Without prejudice privilege attaches to documents produced or discussions that are held to explore settlement.
How costs are dealt with will depend on the method of ADR. For example:
If a case settles by way of a joint consultation, the agreement reached between the parties will include an express provision setting out who will pay the costs.
In mediation, it is common for the parties to agree to pay their own legal costs but split the costs of the mediation (for example, the mediator's fees and venue expenses).
In adjudication, the parties normally pay their own legal costs while the adjudicator will decide which party should pay his fees and expenses.
The main bodies offering ADR services are:
The Dispute Resolution Service, which provides advice and information about mediation and is administered by the Law Society of Northern Ireland (www.mediatorsni.com).
The Barrister Mediation Service, which provides information about mediation and access to a pool of barristers who are accredited mediators (www.barofni.com/page/barrister-mediation-service).
Centre for Effective Dispute Resolution (CEDR) and CEDR Ireland, based in London and Dublin respectively, are acknowledged as leading authorities on mediation and ADR (www.cedr.com).
Proposals for reform
In September 2015 the Lord Chief Justice of Northern Ireland announced a wide-ranging review of civil justice in Northern Ireland, which will be the first comprehensive review of the civil justice system in Northern Ireland since 2000. It is expected that the review will be completed by no later than September 2017 and will cover areas including:
The jurisdiction of the County Court.
The use of mediation and other forms of dispute resolution.
Opportunities to streamline court procedures and improve case management.
The use of modern technology in the court process.
The Northern Ireland Courts and Tribunals Service has proposed to increase the court fees payable at certain key stages in proceedings. A public consultation on the proposed increase closed on 8 June 2016, with the proposed way forward expected to be confirmed in August 2016.
Northern Ireland Courts and Tribunal Service (NICTS)
Description. Judgments of the Northern Ireland High Court and Court of Appeal are published on the NICTS website, which is maintained by the NICTS. The website also provides information and guidance on the Northern Ireland Courts and an up-to-date electronic copy of the Rules.
British and Irish Legal Information Institute (Bailii)
Description. Northern Irish case law and legislation is available on the website maintained by Bailii, a not-for-profit charitable trust. The website's database is regularly updated.
Description. Original and up-to-date Northern Irish legislation is available on this website, which is maintained by the National Archives. The website's database is regularly updated.
Brendan Fox, Partner
Professional qualifications. Solicitor, Northern Ireland
Areas of practice. Litigation and dispute resolution; infrastructure and construction; IP and technology.
- Representing a private limited company in an arbitration under the ICC rules in relation to a cross-border dispute.
- Acting for several major financial institutions in relation to multi-million pound claims against solicitors, surveyors and valuers.
- Representing a public limited company in High Court proceedings arising out of a challenge to a public procurement.
- Advising a provider of water and sewerage services through several adjudications and arbitrations.
- Representing a shopping centre owner in High Court litigation against a major retail tenant challenging a restrictive covenant as being in restraint of trade.
- Advising several main contractors in connection with disputes with sub-contractors.
- Acting for a private limited company in a challenge to the jurisdiction of the Northern Irish courts to determine a commercial dispute.
John Dugdale, Associate
Professional qualifications. Solicitor, Northern Ireland, England & Wales
Areas of practice. Litigation and dispute resolution; infrastructure and construction.
- Acting for a specialist subcontractor in the successful enforcement of an adjudicator's decision.
- Representing a housing association in an adjudication commenced by a main contractor which alleged an entitlement to an extension of time and damages.
- Advising one of the UK's largest shopping centre owners in the successful defence of an application by a tenant for an interlocutory injunction restraining the re-development of a centre. The tenant's allegations included derogation from grant, breach of a quiet enjoyment covenant and nuisance.
- Representing a firm of architects and their professional indemnity insurers in the defence of High Court proceedings arising out of alleged defective design in the re-development of commercial premises.
- Advising a consultant in relation to High Court proceedings and a related mediation arising out of the design and construction of a public facility.
- Representing a public limited company in High Court proceedings against a contractor, which involved allegations of repudiatory breach and wrongful termination of a contract. The proceedings were settled following a mediation.
- Advising a contractor in connection with arbitration proceedings arising out of alleged defective workmanship in the restoration of a landmark ecclesiastical building.
Ciaran O'Shiel, Solicitor
Professional qualifications. Solicitor, Northern Ireland
Areas of practice. Litigation and dispute resolution; IP and technology.
- Advising a global manufacturer and supplier of mining vessels in respect of patent infringement issues across UK territorial waters.
- Representing an online shipping company in High Court proceedings arising out of trade mark infringement and malicious falsehood and breaches of the Comparative Advertising Directive in keyword advertising.
- Acting for a market leading manufacturer on a multi-jurisdictional patent infringement claim that included successfully opposing an application to stay High Court proceedings on the basis of revocation proceedings that had been commenced in the UKIPO.
- Representing a multinational technology company in relation to a challenge to the jurisdiction of the courts of Northern Ireland to hear claims relating to privacy, data protection and defamation.
- Advising a global pharmaceutical company on the procedural aspects of the taking of evidence in Northern Ireland for use in foreign proceedings.
- Acting for a worldwide retailer on successful High Court proceedings involving allegations of passing off, copyright and trade mark infringement.
- Advising one of the world's leading manufacturers on the termination of an international supply contract.
Stuart Nevin, Solicitor
Professional qualifications. Solicitor, Northern Ireland, England & Wales
Areas of practice. Litigation and dispute resolution; banking and finance.
- Advising a private limited company in relation to the service of Northern Irish High Court proceedings in Norway under the Hague Service Convention.
- Representing a local manufacturer on High Court proceedings involving a challenge to the jurisdiction of the Northern Ireland courts and the application of the Brussels Regulation.
- Representing a public limited company in High Court proceedings for the recovery of land.
- Acting for a director and minority shareholder in relation to High Court proceedings arising out of his investment in a private limited company, which were eventually resolved by mediation.
- Acting for a firm of independent financial advisors in the defence of High Court proceedings concerning allegations of professional negligence in investment advice.
- Acting for a public body in the defence of High Court proceedings concerning a challenge to the procurement of a high value framework agreement.
- Advising the landlords of numerous commercial premises in respect of the recovery of rent and service charge arrears.