COVID-19: Litigation and Dispute Resolution Update

Critically, while the relevant bodies have introduced necessary closures and restrictions, businesses should rest assured that where urgent matters relating to their organisation arise, the courts will be available to assist them where appropriate. In line with similar developments in the UK (see our recent briefing here), the Irish courts are now facilitating remote hearings where possible. These are currently taking place with media representatives present in court in order to comply with the constitutional imperative that justice be administered in public.

What hearings are still going ahead?

The High Court

A recent statement from the courts has indicated that for the first two weeks of this legal term, only the following types of urgent legal business will be dealt with:

• Injunctions and their enforcement
• Examinerships
• Urgent judicial review applications
• Urgent wardship matters
• Applications for bail
• Applications for extradition
• Habeas Corpus
• Issue of proceedings where the statutory time limit to issue will expire before 5 May 2020

All other motions and cases which had been listed for hearing in this period are adjourned generally with liberty to re-enter.  It also remains possible to obtain consent orders from the High Court in all civil lists where the consent of all of the parties to the litigation has been confirmed to the court by email.  

It has also been made clear that it is hoped that from 27 April the High Court will pilot remote hearings in suitable cases and where they can be conducted in a manner which is fair and where the parties and their representatives can comply with all current Government guidance and direction.

Court of Appeal 

In a recent statement, the Court of Appeal has said that some appeals listed for hearing between 20 April and 1 May 2020 will now be heard remotely, with the relevant court office to contact the parties to ensure that their papers are in order to facilitate this.  All parties with matters listed for hearing in that period are also asked to now make every effort to lodge their submissions and any other necessary documentation so that their appeals are ready to be heard remotely. The court conducted its first remote hearing on 20 April.

Supreme Court

It is intended that, for the time being, much of the work of the Supreme Court will be conducted remotely.  This is detailed in a new practice direction on the conduct of proceedings in that court during the pandemic. The court conducted its first remote hearing on 20 April and updated guidance is expected on the conduct of remote hearings from time to time as experience develops. The Chief Justice made a statement marking the Supreme Court’s first virtual hearing.

Parties are encouraged to file applications for Leave to Appeal using the existing Supreme Court e-filing system. Detailed instructions are also set out in relation to case management procedures, the filing of papers, how the courts will approach remote hearings, the delivery of judgments and the making of orders.

The Workplace Relations Commission ("WRC")

The WRC has postponed all adjudication hearings, conciliation meetings, face-to-face mediations, and on-site inspections until after 5 May 2020. However, it is still providing mediation of individual complaints and conciliating collective disputes by telephone. It has launched a consultation on the conduct of remote hearings. In the interim the WRC remains open for business and parties can submit complaints for adjudication online, while decisions will continue to be issued electronically.

Labour Court

The Labour Court will not hold any physical hearings before 5 May 2020. It is currently exploring options for remote hearings.  Hearings which have previously been cancelled due to the current crisis will be prioritised for remote hearing and the relevant parties will be contacted to see if they are equipped to partake in this type of hearing. In the meantime, the Labour Court will continue to accept appeals via email and post.

Personal Injuries Assessment Board ("PIAB")

PIAB continues to operate and is requesting that, where possible, solicitors and members of the public deal with PIAB electronically. All independent medical examinations previously arranged to take place up to and including 30 April 2020 have been cancelled and no further medical appointments will be scheduled until further notice. 

How does COVID-19 disruption affect limitation periods

While court offices remain open, the relevant limitation period to initiate proceedings as provided for by the Statute of Limitations 1957 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. 

At present, there is one notable exception to these general rules and that is the area of planning law. The normal eight week period for the initiation of judicial review proceedings under the Planning and Development Act 2000 was initially suspended during the period 29 March 2020 to 20 April 2020. In fact, all deadlines under that Act were similarly suspended¹ and the government may permit extensions of this suspension period for successive periods until 9 November 2020. An additional extension to 9 May 2020 is expected in the coming days.

Considerations for potential litigants

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. McCann FitzGerald has published a detailed briefing on commercial contracts and force majeure in the context of COVID-19 which is available here.
• 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 has published a detailed briefing on the doctrine of frustration 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 has published a briefing on seeking injunctive relief before the courts which is available here.
• Businesses may wish to consider a remote mediation of any dispute which arises, using the technology and video conferencing tools which have now become the norm for many.  Critically, in our experience mediation is particularly beneficial in cases where there is some prospect of the parties being able to salvage a commercial relationship and continue working together, which may well be the hope of many involved in difficult situations at this time.  
• 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 has published a briefing “COVID-19: Central Bank of Ireland Sets Out How Insurers Should Approach Claims” which is available here.
• Businesses should also be vigilant of cyber security risks at these time, and McCann FitzGerald has published a briefing “COVID-19 – Increased risk of Cyber Fraud” 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.