Commercial Court – Practice Direction

Litigation 02/10/2009

Commercial Court 鈥 Practice Direction

Following the publication of the practice direction of the President of the High Court last May, as displayed below, the Litigation Committee has considered the terms of the practice note, and in particular paragraph 2. It is of the opinion that the provision of an unconditional undertaking 鈥渢o ensure that the court鈥檚 directions will be complied with in full鈥 is extremely unwise. While the Litigation Committee is anxious that the Commercial Court continues to function in its current effective manner, it simply may not be possible for a solicitor to comply with of all of the court鈥檚 directions due to circumstances outside the solicitor鈥檚 control. It is the committee鈥檚 understanding that Mr Justice Peter Kelly, who presides over the Commercial Court list, recognises this position and that he, in addition to other judges taking the list, will accept undertakings that are qualified in a manner that allows for the solicitor to use his/her best endeavours to comply with the court鈥檚 directions. The committee strongly recommends that any practitioner wishing to have a case admitted to the Commercial Court list provide an undertaking in these terms and not without such a condition.

Litigation Committee

Trinity Term 2009
As a result of an increased incidence in solicitors failing to comply with pre-trial directions given by the court, it has become necessary to issue the following practice direction, which will come into force on 1 June 2009.

Practice direction

  1. The Solicitors Certificate issued pursuant to O63(a), r4(2) of the Rules of the Superior Courts grounding an application to enter a case in the Commercial List must be signed by an individual solicitor who is and will be responsible for the conduct of the case. It is not sufficient that the certificate be signed in the name of a firm.
  2. Such certificate, in addition to containing the other material prescribed by the rules, must also contain an undertaking to the court from the solicitor that, in the event of the case being admitted to the Commercial List, that solicitor will ensure that the court鈥檚 directions will be complied with in full.
  3. An application to enter a case in the Commercial List grounded on a certificate which does not comply with the provisions of paras 1 and 2 of this direction will be refused.
  4. When a case is entered into the Commercial List, the respondent will be required to nominate an individual solicitor who will be responsible for ensuring compliance with the directions of the court.
  5. Henceforth, papers lodged in the List Room for consideration by the judge in charge of the Commercial List as part of the normal motion list on a Monday must include all previous orders made by the court.
  6. Papers for trials must be delivered to the List Room not later than 4.30pm on the Wednesday preceding the week in which the trial is due to begin.
  7. Commencing on Friday 12 June 2009, and on every Friday thereafter during term, there will be a call-over before the judge in charge of the Commercial List of the cases listed for trial during the following week. The purpose of this call-over is to ensure that all pre-trial directions given by the court have been complied with in full.
  8. In the event of a case settling prior to its trial date, it is the duty of the solicitor for the moving party to inform the court of that fact immediately.

Richard Johnson, President of the High Court, May, 2009