Until recently the rules for conducting commercial litigation in Ireland were deceptively similar to those in England and Wales. Recent changes in each jurisdiction have been driven by identical concerns (making litigation faster, cheaper and more responsive to the needs of the parties), but these challenges have been addressed in different ways, accentuating the differences between the neighbouring systems.

Traditionally the obvious similarities between the Irish and English jurisdictions included a shared common law heritage and a similar procedural code, with virtually identical law on many issues such as discovery. The substantive law, whether derived from statute or from case law was also similar in many respects, although the jurisdictions diverged on various issues of both substantive law and procedure.

Procedural differences included the Irish absence of any pre-trial exchange of factual or expert witness statements or case management, differences in the rules for making or increasing lodgements, a less stringent Irish approach to compliance with the time scales stipulated in the Rules of Court and a different pleading style.

The Irish courts would generally take a more benign approach to delay or to belated amendments to pleadings and while costs orders would sometimes be used as a sanction against a party in default or adopting an obstructive position, this was much less common than in England. Moreover, any cost awards in Ireland would be against the party in default, not their legal advisers as in England in appropriate cases.

The English courts would also be more robust in their approach to striking out proceedings on various grounds, with the different Irish approach being due, at least in part, to the different constitutional position in Ireland. Discovery was similar in many respects, but sometimes diverged, such as in respect of legal professional privilege. Another important difference was the absence of a commercial court in Ireland, although in practice this gap was filled by the Chancery Court, which generally resolved the larger commercial claims.

While generally the development of the procedural code was more developed in England than in Ireland, this was not always the case. For example, there was a jurisdiction in Ireland to secure discovery from persons who were not parties to litigation long before such interlocutory remedies were offered in England.

Just as the rules of many sports have changed to respond to the requirements of broadcasters, advertisers and viewers, so the procedural rules in Ireland and England have come under scrutiny with pressure to adapt them to offer a faster and more effective means of resolving commercial disputes. Technological changes and the ever increasing frequency, value and complexity of commercial transactions have created the need for a fresh look at the appropriateness of existing procedures in many jurisdictions. England implemented fundamental changes to its court procedures, but a different approach is being pursued in Ireland and for the same reasons, but on a more cautious and incremental basis.

Traditional Irish discovery rules were broadly similar to the former English regime. A party could seek a general order for discovery of all relevant documents in the possession, power and control of the respondent. The Irish courts adopted the classic Compagnie Financiere du Pacifique v Peruvian Guano Company [1882] relevance test and its broad terms meant that in Ireland (as in other jurisdictions) the scope of discovery grew increasingly onerous, with discovery frequently representing the most costly, time-consuming and unwieldy aspect of civil litigation. Litigants demanded disclosure of huge volumes of material putting each other to great effort and expense, but comparatively few discovered documents ever saw the light of day at trial.

The Irish rules did provide that the court could refuse or limit discovery if it was unnecessary "either for disposing fairly of the cause or matter or for saving costs", but until the 1999 Supreme Court decision in Brooks Thomas Limited v Impac Limited these restrictions were seldom successfully invoked to limit discovery in Ireland. Generally, once the applicant had satisfied the court that the documents were potentially relevant, the respondent faced an uphill struggle in opposing such discovery orders, no matter how burdensome.

Consequently, discovery in commercial litigation became increasingly complex, expensive and time-consuming, an issue noted by the Irish Supreme Court in Brooks Thomas. The delay and expense entailed in becoming bogged down in endless discovery battles clearly concerned the court on that occasion. It had taken three-and-a-half years for the respondents' solicitors to review all of the discovered documentation. The court criticised the conduct of the case.

"In these circumstances I cannot understand why the respondents in November/December 1989 decided to seek discovery of documents instead of getting on with their case, while memories were still reasonably fresh to prove the matters of which they complain. I am driven to the inference that discovery in this case was no more than a fishing exercise and was quite unnecessary."

Although the court did not doubt that the discovery sought was "relevant", any such relevance was marginal and the trouble and expense involved in discovering substantial documentation was unjustifiable in view of its limited relevance. The Supreme Court accordingly refused further discovery on the basis that it was "not necessary either for disposing fairly of the action or for saving costs". The Brooks Thomas decision was a departure from the previous trend of discovery cases which generally allowed discovery once the low relevance threshold had been passed. The change was clearly more consistent with the existing provisions of the rules and recognised the need for a balance between giving both parties equal access to all relevant information, preventing undue delay and saving costs.

This approach was further developed by the introduction of new discovery rules in 1999 which changed the procedure for seeking discovery and, more importantly, the basis on which discovery would be sought and granted. Discovery would no longer be ordered in general terms, but would be limited to specific categories, justified by reference both to the relevance of documents in each category and the demonstrable necessity for such discovery either for the fair disposal of the matter or for saving costs. 'Relevance' is no longer enough to justify a discovery order. The applicant must also show 'necessity'. The burden of showing that such discovery is necessary shifted to the applicant.

Although the new Irish approach differs from the new 'standard' English disclosure provisions, both approaches are driven by precisely the same concerns and objectives. The key difference is that the Irish system increases the onus on the party seeking discovery to define and justify its request, whereas the English system requires the party making discovery to identify documents on which it relies or which adversely affect either party's case or support another party or which are required to be disclosed under a practice direction.

Traditionally, there was no requirement in Ireland to exchange factual or expert evidence prior to trial. This is beginning to change, but at present the requirements for exchange of expert evidence are limited to High Court personal injury actions. Parties to such litigation must exchange reports from expert witnesses on which they seek to rely. If full disclosure is not made the court may prohibit the offending party from adducing evidence from the undisclosed report or adjourn the case until full disclosure is made. Also in High Court personal injury actions the parties exchange lists of factual witnesses whom they intend to call, but exchange of statements from factual witnesses is not required in Irish litigation.

In recent years a working group has considered the issue of delays in High Court litigation and the need to resolve more cases at earlier stages. The group has advocated the introduction of case management in procedurally complex cases. Many practitioners in Ireland, particularly smaller firms and plaintiff personal injury lawyers that make up the bulk of the solicitors profession in Ireland, opposed the introduction of a case management regime. The four or five larger firms welcomed the proposal and see judicial case management as a valuable tool in effectively managing complex litigation. It seems case management will eventually be introduced in Ireland, but the precise terms of any such case management regime, and the litigation it will relate to, have yet to be determined.

Other interesting developments are currently being considered in Ireland, including the development of a specialist commercial court and the greater use of technology in the courtroom. The proposal by the Committee on Court Practice and Procedures in Ireland for the establishment of a commercial court has been supported by all interested parties including the profession and the Minister for Justice, the court services and the judiciary and it is to be hoped that the proposal will be developed and implemented without delay. The commercial court would initially deal with a restricted list of cases such as those relating to IT/IP (which remains a huge growth area for the Irish economy and/or applications under the Arbitration (International Commercial) Act 1998 with its scope to be broadened as time goes on.

On the technology side, the courts service is pressing ahead vigorously with the introduction of the latest technology, making commonly used courts forms available online and the current plans envisage filing of pleadings online and the provision of e-courts.

The legal profession itself is initiating other changes. For example, although Irish court procedures do not generally require the parties to undertake mediation or any other form of alternative dispute resolution (ADR), the larger firms have been promoting such ADR solutions to clients and they are expected to become increasingly popular methods of resolving commercial disagreements. The opening of the International Centre for Dispute Resolution in Dublin provides another valuable tool for resolving commercial disputes, on this occasion by arbitration, under the auspices of the American Arbitration Association.

These changes are to be welcomed and more will follow as the Irish legal system continues to evolve to offer an increasingly satisfactory and cost effective means of resolving disputes.

Liam Kennedy is a partner and Louise Cox a lawyer in the litigation department at A&L Goodbody.