The establishment of a new High Court Intellectual Property and Technology List has the potential to be as significant a reform as was the creation of the Commercial Court division in 2004 under the former President of the High Court, Mr. Justice Peter Kelly. The new list can help modernise and streamline the legal process for companies seeking to assert or protect their rights. The development sees Ireland make a significant play to attract IP and technology disputes in the only remaining English-speaking common-law jurisdiction in Europe in a post Brexit legal world.

The amended Order 63A of the Rules of the Superior Courts sets out the framework within which the IP and Technology List will operate. Among other changes, Order 63A significantly expands the range of cases which fall under the heading of IP disputes to encompass passing off, database rights, trade secrets, copyright, unauthorised decryption, and disputes involving protected origins and traditional specialities. The Order also allows the judge presiding over the IP and Technology List to assign any case which they consider to be sufficiently connected to IP rights, or of sufficient technological complexity, as to warrant being heard before the specialised IP judge.

Further changes in the order are designed to streamline the litigation process for IP and technological disputes. At case management conferences, the IP judge will be empowered to decide whether discovery is necessary, and if it is, to define the exact scope of the discovery process. They will also be empowered to decide whether the case will proceed with affidavits only, or whether oral evidence is necessary. This is a departure from the normal process in the Commercial Court.

The IP and Technology List follows on from other reforms in the area, particularly the provisions of the Copyright and Other Intellectual Property Law Provisions Act 2019, which granted limited jurisdiction to the District and Circuit Courts to hear some IP disputes. Taken in conjunction with these changes, the IP and Technology List will sit at the top of a new, more efficient structure for the resolution of IP and technology disputes of all levels of complexity and value.

The Irish Commercial Court was a resounding success when introduced in 2004 and remains the envy of most jurisdictions for the resolution of commercial disputes. This new development which is pro-enterprise for a 21st century digital economy is to be welcomed. However, the elephant in the room is this: what about other less sophisticated court users and those who do not have the financial means to seek legal redress to protect and vindicate their legal rights? What about victims of medical negligence who remain stuck in an inflated personal injuries list? Do they not deserve their own dedicated list with case management capabilities from judges expert in the field? What about cases of domestic violence and abuse and court users who are undergoing separation, divorce or urgent family law applications? Are they also not entitled to a 21st century Court Service with swift access to justice? Mr. Justice Peter Kelly’s review of the civil justice system sets out a framework for future progress in this regard and it is hoped his recommendations will be complimented by the Courts Service Strategic Plan 2021-2023, which is to set in train the first tranche of a decade of modernisation of the court system.

Ronan Hynes, Partner in Litigation and Dispute Resolution in Sellors LLP, comments that: “the creation of the IP and Technology List places the Irish courts at the cutting edge for the timely and efficient resolution of commercial IP and technology disputes in the future and promises to help in the development of a judicial specialisation in this complex and increasingly important area. However, we need to ensure that such innovation and progress is also replicated in other areas in our civil law High Court list system such as cases of medical negligence, domestic violence and abuse and family law to ensure access to justice for all and avoid the oft cited contention that the legal system is only fit for the wealthy and powerful”.

If you would like more information on this subject, please contact Ronan Hynes at [email protected]