Business disputes are as varied as the types of businesses involved. The depth and breadth of experience held by Tully Rinckey solicitors establishes the firm as a valuable resource when representing clients in commercial disputes.
Litigation derives from the Latin litigare and means dispute or quarrel. In business or life disputes are inevitable. It is critically important therefore to have an effective mechanism of dispute resolution that is cost effective and appropriate.
In the first instance to properly advise our clients we take the time to understand the dispute so that we can represent our client’s interests.
In civil law jurisdictions the law is codified and disputes are heard before judges who interpret the codal decisions generally on a case by case basis.
Ireland is a common law jurisdiction. Cases are determined by reference to precedents and legislation. Depending on the quantum or type of dispute various jurisdictions and courts may apply. Solicitors interact with the client and may operate to run cases at the lower courts. At the more senior courts Barristers will be engaged who are experts and court advocates specializing in particular areas of law.
Of course the first legal recourse is not, and should never be, to the courts. At Tully Rinckey we will attempt in the first instance to resolve the matter by way of negotiation, or if unsuccessful mediation or arbitration. Court applications and litigation are effectively an adversarial system where there has to be by a party who is successful and a party who is unsuccessful. It is a fact that all litigation carries risk.
Of course, when a dispute presents as intractable or cannot be resolved by way of alternative means or negotiation then we are staffed with experienced litigators who will be best placed to deliver a result to protect your interests and fight for the best possible outcome for your case.
Hears disputes generally up to €15,000 and lower criminal offences.
Hears disputes generally up to €75,000 and the central criminal court hearings more serious criminal matters.
Hears disputes of unlimited quantum and in more complex cases such as judicial review is the first court that may be consulted.
It is the first appeal court from the High Court and will hear appeals in the ordinary course.
This is the highest Court in Ireland and will hear matters of constitutional importance and other important legal precedents.
Just as diverse as human or business interactions are the diverse areas of disputes which may arise. As well as operating a general litigation practice our practitioners have developed expertise in particular areas of legal disputes.
The normal stages of a litigation are as follows
The litigation solicitors at Tully Rinckey know how important it is to promptly find a solution for your dispute.
There are exceptions to the above general procedure where certain matters may be subject to alternative process such as special summons, summary summons, judicial review or where injunctions may be required.
Certain actions such as family law or criminal law matters only apply to persons who may be sued in their own names.
One of the consequences of setting up a limited company (incorporation) is that the company has a separate legal identity and can sue and be sued in its own name.
In very many respects, the laws of civil litigation as it applies to companies are the same as with people. In many other respects, however, the laws, practices and procedures applicable to cases taken by or taken against companies can differ markedly to those applicable to individuals or partnerships. Here are some questions/issues that you need to consider before you sue a company:
By law all solicitors must send you a document which sets out the costs of legal services and in particular litigation services. Tully Rinckey will always be transparent in relation to costs. Costs are guided by the following factors.
We act for persons, businesses and institutional clients. If you, your businesses, or your organizations is involved in a dispute and considering litigation, the solicitors at Tully Rinckey can assist you. Our solicitors draw on a deep well of trial-tested experience and resources to protect your interests and fight for the best possible outcome in your case.
A judicial review is, at its simplest, an application to the Court to have a particular decision or action reviewed by the Courts. The types of decisions that are can be subject to judicial review are quite broad. Once the person brining the application has taken legal advice on the merits of bringing the application the next factors to consider are the procedure and the relevant time limits that apply.
In the first instance, no application for judicial review can be made without leave of the Court. The procedural rules for making Judicial Review applications are set out in the Rules of the Superior Courts. Leave to apply is made before the High Court by way of a Notice of Motion grounded on a Statement to Ground the application together with a Verifying Grounding Affidavit.
Leave is generally made on an ex parte basis (that is, without notice to the other side). A High Court Judge will hear the application and will either grant leave to apply together with interim orders as applicable for the judicial review or may, if it considers it appropriate, deny the application. Costs are a matter for the court but the court may require an undertaking as to damages from the appellant.
The application for leave must be made within three months from the date when the grounds for the application first arose. In addition, the rules state that an application for leave to apply for judicial review shall be made “promptly”.
For Planning matters a Judicial review of a decision of a planning authority, including An Board Pleanala, must be made within eight weeks of the decision of the planning authority as set out in the Planning and Development Acts 2000 (as amended)
Once leave is granted the court will mark a return date and the Appellant must then serve the relevant documents on all persons directly affected within 14 days after the grant of leave unless the Court directs otherwise. This requires monitoring and close communication with the Registrars.
The Court documents should be served personally on the respondents. In circumstances where the purpose of the application is to compel the Court, or an Officer of the Court, to take any particular steps or to quash a pre-existing order, the documents must also be served on the Clerk or Registrar of the Court. The Applicant is also required in their cover letter to notify the Respondents of their requirement to file a statement of opposition within 7 days of the receipt of the documents.
Any Respondent who intends to oppose the application for judicial review is required to file a statement of opposition no later than seven days from the date of service of the proceedings on them. The Court may direct that a party who has not been served be directed to be served and direct how that notice may be served.
The application is confined to the matters set out in the documents filed. Once the Court is satisfied that the matter is in a position to go to hearing then it will be allocated a date for full hearing in the normal manner before a Judge of the High Court.
Judicial reviews are normally technical applications which focus on a particular error, or errors of law, or procedural error that has been made. Oral evidence can be called but it is more likely to proceed by way of oral and written submissions to the court. The Court will then decide the matter on its merits in accordance with the applicable legislation and case-law.
The court may quash the decision and also may direct that the matter be remitted to the Tribunal or Authority concerned to reconsider it and reach a decision in accordance with the findings of the High Court.
If you are considering a Judicial Review or have had Judicial Review Proceedings served on you Tully Rinckey can assist you in this regard.
The simple answer here is the company sues on its own behalf for any wrongs done to the company. The opposite also applies, generally speaking you can normally only sue the company and not its shareholders or Directors, except in limited circumstances. This does give rise to various issues, one such is that a shareholder may not sue for damages done to their share value as a result of damage done to the company, it is the company itself must sue to recover any losses.
This is decided by the company’s Articles of Association (an document which you will receive when you form your company, it can be considered your company’s constitution) Under the standard articles the authority to institute any legal proceedings will be vested in the board of directors of the company as, under these articles, the shareholders usually give up their the general power of management to the directors.
In practice we would recommend that a resolution should be passed by the directors at a properly convened and constituted meeting of the board of directors, to this effect.
In the event that the company goes into liquidation, then it is the liquidator that will issue or defend any proceedings on behalf of the company.
The simple answer to this is that you serve any proceedings on the registered office of the company, either in person or by ordinary post (we would suggest you request proof of such posting from the post office). Registered post is often used but this is not a requirement.
If you feel the company may not be willing to accept your summons, then we would suggest you first send a copy of the summons by ordinary post, (obtaining proof of postage from the post office) and then the next day you can send your summons again by registered post if you wish.
If the unusual situation arises, where the company does not have, for some reason, a registered office, then the Companies Acts state that you may serve your summons directly on the Company Registration Office (‘The CRO’) and it will be deemed good service.
There is a general presumption that service of documents on the registered office is enough to satisfy the courts, however circumstances can arise where this will not always be the case. The courts have held that an Foreign company who served its summons in Ireland, by registered post, on the registered offices of a potential Defendant, which was not delivered to them and unfortunately was also not returned to the sender, was not considered good enough service to satisfy the court. This turned out to be a major issue as the Defendant company subsequently went bust (into liquidation) and the liquidator was able to use the lack of proper service to overturn a judgment for a debt that had been originally granted to the Foreign company.
You can only serve your summons on the company’s solicitors, if they agree to accept them. Any such agreement should be in writing to avoid any subsequent misunderstandings.
Under the companies Acts foreign companies with an established place of business here are required to register their name, address and a contact name, with the Companies Record Office (‘The CRO’). Therefore, it is sufficient to serve any documents personally or by post to the registered contact details.
Under European Regulations a foreign company incorporated outside this state but with a branch here is obliged to register with the Company Registration Office (‘The CRO’). If they fail to register their details, then you can serve your proceedings by leaving it at or sending it by post to any branch established by the company in the State.
You just need proof of posting as you may subsequently need to swear an Affidavit or Declaration of Service, where you will exhibit (show) your proof. This is a legal document, where you swear under oath that you have served the summons, that will satisfy the Courts.
The first and most important question or issue you need to decide before you sue any company is:
There is little or no point in suing a company for a breach of contract, for negligence or for money they owe you, etc., if it turns out that the company has no money(assets) to pay you. All you have done is waste time and incur unwanted legal fees.
As it has a separate legal personality from its owners (shareholders and/or directors) you cannot normally seek to have them made personally liable for the debts of the company, except in very limited circumstances, where the law will allow this.
So from a practical point of view you need to have a credit check or financial investigation carried out against the company, so see if it has sufficient assets to pay you if you are successful.
We can assist you in this regard. Please also see our debt collection service for more information.
Having decided that the company you wish to sue has the assets or wherewithal to pay out if you win and having then successfully obtained your Judgment in the court, see below a brief outline of the issues and options available. Please also see our debt collection section of our website for further information on obtaining and the enforcement procedure available for judgments obtained.
From a practical point of view it has to be said that currently, some of these procedures can give rise to very unsatisfactory outcomes for the person/company who have obtained their judgment.
The primary method of enforcement of a judgment obtained for the payment of money, is for you (the judgment creditor) to obtain an order from the court directed to the sheriff (or if this is outside of Dublin or Cork, the County Registrar) commanding them to seize whatever goods are within their area (bailiwick) belonging to the company (judgment debtor) and to sell those goods, in order give you the sum (money) due, this can also include interest and costs, out of their sale.
In our experience the success of this method will depend on two things, the assets of the company that can be readily realised (as already discussed) and the capabilities of the particular Sheriff or County Registrar.
Under various laws, you (the judgment creditor) have the right to apply to, convert your judgment or order obtained from the Court, into a mortgage against the land or property of the company, provided that the judgment or order requires the payment of a sum of money to you.
Where a judgment mortgage is obtained against a company it is very important that you send two copies (certified by the Property Registration Authority) of the Affidavit required for that purpose, to the company within 21 days after the date of registration and within a further three days from then, you have to also deliver a copy of the Judgement mortgage to the Company Registration Office (‘The CRO’).
One means of enforcing a judgment that is exclusive to company debtors is the creditors’ ability to petition the courts to have the company wound up. A a court ordered winding up has to be taken in the High Court, making it a very expensive process. However, if you have not obtained a judgment, the courts do not look kindly on this action if you are using it simply as a debt collection method. Additionally, if you do decide to wind the company up, if you are an unsecured creditor, you will only be paid with the other unsecured creditors, after the preferential and secured creditors.
The enforcement of High Court orders and judgments against companies is regulated by the Rules of the Superior Courts (these are available online at www.courts.ie)
Order 42, Rule 32 states:
“any judgment or order against a company wilfully disobeyed may, by leave of the court, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers thereof, or by order of sequestration of their property.”
Central to the operation of this rule is that a judgment or order is “wilfully disobeyed” by the company.
It is important to note that a company’s inability to pay a money judgment against it, will unfortunately, not result in “wilful disobeyance” and will not give rise to its officers (usually senior management) being attached (imprisoned).
Tully Rinckey Dublin provides a wide range of Irish and international clients the full spectrum of legal services they need to achieve their commercial objectives in an increasingly complex and globalized world.
Tully Rinckey’s global platform allows our Dublin solicitors to quickly marshal relevant experience across different practice areas and offices. The integrated nature of the Dublin practice means our Irish solicitors work closely, and on a regular basis, with their counterparts across the globe, delivering an efficient and cost-effective legal service to our clients.
At Tully Rinckey, our commitment to quality never ends. We will listen to your legal concerns, and provide clear and concise legal advice in plain language to assist you with your legal issues and if required, represent you in legal proceedings.
In a fast moving legal landscape our already knowledgeable solicitors are continuously learning and honing their skills. You can be confident you will always receive the most innovative and up to date legal strategies.
We will make ourselves accessible to you, committing to be your long-term legal partner.
At Tully Rinckey, we work relentlessly to ensure our ethical standards and level of professionalism surpass what is expected of us by our clients and the court. Our high ethical principles call us to treat clients with respect, offer affordability to members of the communities we serve, and provide composed and dignified representation.
Our processes put the client first. We will communicate in a timely manner in plain English. In our consultations, we will listen to you, and take the time to understand your concerns. We will take the time to consider the most appropriate legal strategies. We will provide and explain all legal remedies and options that are available to you.