Rules of the Superior Courts (Evidence) 2007
Statutory Instruments
Source: Statutory Instruments

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paragraphs: The Rules of the Superior Courts are hereby amended by the substitution for rule 5 of Order 39 of the following:
“5. (1) In this rule and in rule 5A:
“the Regulation” means Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L174/1 of 27 June 2001);
“Member State” means a Member State of the European Union with the exception of Denmark.
(2) The Court may, in any case in which the Regulation applies, on the application of any party or of its own motion, order the issue of:
(a) a request, in Form A in the Annex to the Regulation, to the competent court of another Member State to take evidence; or
(b) a request, in Form I in the Annex to the Regulation, to a central body or competent authority, designated by the Member State concerned in accordance with Article 3(3) of the Regulation, to take evidence directly in that Member State.
(3) Where an order under this rule is sought by a party, the Court may, before making such an order, require that party to file in the Central Office for consideration by the Court a completed draft of Form A or Form I (as appropriate) in the Annex to the Regulation (including any questions sought to be put to any witness, statement of facts about which any witness is sought to be examined, or documents or objects sought to be inspected by the opposing party), together with a certified translation thereof (where necessary) into the official language referred to in Article 5 of the Regulation, and an undertaking to reimburse without delay any fees or costs referred to in Article 18(2) of the Regulation, and to pay any advance or deposit referred to in Article 18(3) of the Regulation.
(4) Where an order under this rule is made of the Court's own motion, the Court may direct the parties or any of them to reimburse (subject to any order made in that regard by the requested court) any fees or costs referred to in Article 18(2) of the Regulation, and to pay any advance or deposit referred to in Article 18(3) of the Regulation in such shares as it shall direct.
(5) The Court may make such orders and give such directions as seem appropriate for the purposes of Article 12 or Article 17 of the Regulation.
(6) The trial judge may make such order as to fees or costs referred to in Article 18(2) of the Regulation, or as to any costs occasioned by the application of Article 12 or Article 17 of the Regulation as shall seem appropriate, notwithstanding any previous undertaking, order or direction in that regard.
(7) An application under rule 5(2) shall, unless the Court otherwise directs or permits, be made by notice of motion grounded upon an affidavit sworn by or on behalf of the applicant.
5A.(1) If in any case in which the Regulation does not apply the Court orders that a request to examine witnesses shall issue in lieu of a commission, the forms Nos. 1 and 3 in Appendix D, Part II, shall be used for the order and request, respectively.
(2) Where an order is made for the issue of a request to examine a witness or witnesses in any foreign country in which the Regulation does not apply, the following procedure shall be adopted:—
(a) the party obtaining such order shall file in the Central Office an undertaking in the Form No. 2 in Appendix D, Part II.
(b) such undertaking shall be accompanied by—
(i) a request in the Form No. 3 in Appendix D, Part II, with such variations as may be directed in the order for the issue thereof, together with a translation of such request into the language of the country in which the same is to be executed;
(ii) a copy of the interrogatories (if any) to accompany the request and a translation thereof;
(iii) a copy of the cross-interrogatories (if any) and a translation thereof.
(3) Where, in any case in which the Regulation does not apply, an order is made for the examination of a witness or witnesses before the Irish Consular authority in any foreign country, such order shall be in the Form No. 4 in Appendix D, Part II.
(4) An application for an order under rule 5A(1) shall,-unless the Court otherwise directs or permits, be made by notice of motion grounded upon an affidavit sworn by or on behalf of the applicant.”
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paragraphs: Form No 4 in Part II of Appendix D to the Rules of the Superior Courts is amended by the deletion therefrom of the words “(Note: If the convention requires that the invitation or notice to the witnesses must expressly state that no compulsory powers may be used, this requirement must be complied with.)”
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paragraphs: These Rules shall come into operation on the 13th day of February, 2007.
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paragraphs: These Rules shall be construed together with the Rules of the Superior Courts 1986 to 2007 and may be cited as the Rules of the Superior Courts (Evidence) 2007.
EXPLANATORY NOTE
(This does not form part of the instrument and does not purport to be a legal interpretation)
These rules will commence the operation of Council Regulation, (EC) No. 1206/2001, which facilitates improved cooperation between the courts of the European Union Member States in the taking of evidence in civil or commercial matters.