108 / 342
GAZETTE
APRIL 1987
in Ireland.
1985. Cork University
Press).
F. Fixed Dates for Hearings
The listing system for High Court
actions appears to generate a lot of
waste. Under the present system,
for example, lawyers, litigants and
expert witnesses (doctors and
engineers especially) spend far too
much time waiting around the High
Court for their case to get before
the judge. The wastage involved in
this has not been quantified in
this jurisdiction, but it is generally
conceded to represent a substan-
tial amount in costs. It is suggested
that appreciable savings might be
made if litigants were
guaranteed
a hearing at a fixed time on a fixed
day. There would be no wastage
from the litigants point of view in
such an arrangement. The sugges-
tion that the judge would be idle for
long periods under such an
arrangement would hardly bear
scrutiny nowadays when High
Court judges could be engaged in
other work required of them, for
example, the wr i t i ng up of
judgements in other cases.
Moreover, it wou ld be less
wasteful from a social point of
view to have a court not sitting
than to have many expensive
witnesses waiting for cases to
come on. The judge's time is pro-
bably one of the cheapest factors
in the litigation process.
The suggested fixed dates ar-
rangement would be greatly re-
inforced by a supporting rule under
which the Court would only allow
settlements which were notified to
it, say, 1 5 clear days before the
date fixed for the hearing. These
rules would greatly concentrate the
parties' minds to settle in good
time so that consequential ad-
justments in the hearing lists could
be made without difficulty. It
would also mean that decisions to
settle or to fight would be made in
a cool considered manner away
from the pressure cooker at-
mosphere which characterises
High Court negotiations nowadays
and which militates against the
plaintiff in particular. It would also
mean that cases would get in-
dividual consideration and would
not be basketed together in a group
as can sometimes happen in the
hectic negotiations that have
become a feature of the High Court
on Circuit especially. Although the
suggestion made here would un-
doubtedly have some practical dif-
ficulties, these it is submitted, need
not be insurmountable. In any
event, in view of the benefits that
would follow from such a rule, the
suggestion is well worth closer
scrutiny.
G. Expert Evidence
A large part of the Court's time in
a typical personal injury case is
concerned with the evaluation of
the expert evidence of doctors and
engineers. Cases frequently
degenerate into a "battle of the ex-
perts" where each side produces
its own reports lending credence to
its own version of events.
There are, it is submitted, three
problems with regard to expert
evidence as it is now used. First,
it is in the interests of a party to
proceedings to choose his expert
on the basis of who will make the
best witness rather than on the
basis of who is the best scientist.
It is a common occurrence for
solicitors to commission reports
from a number of experts in any
particular case and then to choose
the report most favourable to their
case for presentation to the Court.
Secondly, it is submitted that a jury
is by its nature ill-suited to deter-
mine conflict between experts. Fre-
quently, it is felt that the jury is less
impressed by the scientific nature
of the evidence, which it may not
fully appreciate, than by the impact
of the witness's personality, de-
meanor, etc. Finally, it is suggested
that the adversarial system, involv-
ing, as it does, examination-
in-chief, cross-examination and
re-examination, creates an un-
suitable environment in which to
effectively elucidate reliable expert
opinion.
With respect to the first problem,
it is suggested that the judge more
frequently should use his Common
Law right to call expert witnesses
to assist the court. (See Rosenthal
(1935) 2 Law and Contemp. Prob.
403). A better solution would be
the establishment by Statute of a
panel of expert witnesses in
various fields whose services
would be available to the parties.
If the parties accept the report it
could then constitute the set of
agreed facts on which the trial will
proceed. If a party disagrees with
the Court expert it should be free
to call its own expert knowing,
however, that it may have to pay
costs for its own expert at the end
of the day if the Court in its dis-
cretion thinks it appropriate.
•
Professional I n f o rma t i on
(Contd. from p. 102)
to acquire the fee simple in the said property.
2. Determining the purchase price payable
in respect of the said Acquisition.
Determining the person or persons entitled
to receive the said purchase money and in
what proportion.
4. Appointing an officer of the Courts to
execute a conveyance of the fee simple
interest on the said property in the event of
the persons required by statute to convey
the same refusing or failing to do so.
5. For payment of costs payable by the
parties in respect of the said Application,
such further or other relief that may be
necessary for the purpose of such a Lease.
Dated this 23rd day of April 1987.
Signed:
O'Reilly Doherty & Co.,
Solicitors for the Applicant,
6 Main Street, Finglas, Dublin 11.
To:
The County Registrar,
Courthouse, Clonmel,
County Tipperary.
To:
or whom this application may concern.
Michael Reilly
B.E. M . I . E . I.
CONSULTANT CIVIL ENGINEER
Litigations Reports
Property Surveys
Fire and Structural Reports
18 PARNELL ST., CLONMEL
Tel.: 052-24360
Telex: 80278
99