Sore users

The Civil Liability and Courts Act 2004 introduces radical changes as to how personal injury (PI) actions are conducted in Ireland. Its aims are to ensure that cases are heard promptly, false or misleading claims are identified, those responsible are penalised and punished and that practices to reduce the costs of these actions are introduced.

Reduction of time limit within which to sue

Among the most significant changes under the act is the reduction of the time within which PI proceedings must be brought, which is now two years from the date of accrual of the action, or two years from the “date of knowledge” of the cause of the action. Persons under a disability can bring a claim at any time up to two years after they cease to be under that disability. Minors have until two years after they reach full age (18 years), ie to the day before their 20th birthday, to bring proceedings in connection with events which occurred while they were a minor.

It still remains open to a defendant to apply for the dismissal of a plaintiff’s claim on the grounds that the delay in bringing proceedings, even though instituted within the statutory time period, has caused irretrievable prejudice to the defendant in the defence of the action.

Personal injury summons

PI actions will now be instituted by way of a PI summons. This must specify full details of the injuries to the plaintiff as well as the acts of the defendant allegedly constituting the wrong of the defendant, the circumstances relating to the commission of that wrong and full particulars of each instance of negligence by the defendant. In addition, full details of special damages are required to be specified. Under the old system, the plaintiff did not have to set out full details of the claim until the statement of claim was delivered, which could be years after the summons. Even then it was not unusual for a statement of claim to give insufficient detail of the claim.

However, in what may well dilute the intention of the act to speed up claims, under the rules of court introduced in support of the act a plaintiff can say when serving a summons that they are not able to provide the full details as required. In that circumstance, the plaintiff must say why they could not and must provide the full information “as soon as may be thereafter”. Nevertheless, if the plaintiff does not serve a comprehensive PI summons, the court may direct that the action does not proceed further until the plaintiff does so, or, where the interests of justice so require, dismiss the plaintiff’s action. In addition, the court can take such failure into account when deciding on the issue of costs.

The PI summons we have seen so far suggest that not all plaintiffs have yet adapted to fully pleading their case as required under the act.

Verifying affidavit

This is now required to root out fraudulent or exaggerated claims. Defendants will also no longer be able to simply deny everything in a defence and to put the plaintiff on proof of all allegations.

Mediation conference

The court may direct the parties to a PI action to meet to discuss and attempt to settle the action, upon the request of either side. This is a new power for the court. While it is a welcome new power, with many now training to be approved mediators under the act, it is still far from clear how effectively this section will be embraced on the ground.

Formal offers

Again, this is a novel concept. The plaintiff must, between the time the PI summons is served and 14 days after the notice of trial, serve a notice in writing of an offer of terms of settlement on the defendant. Similarly, the defendant shall at any time after the service of the PI summons and up to 14 days after the notice of trial serve a notice in writing on the plaintiff of an offer of terms of settlement, or stating that they are not prepared to pay any money in settlement of the action
The act does not require any party to be the first to make an offer of settlement and it is therefore uncertain if the section will work effectively. A copy of the formal offer is lodged in court, but the terms of it are not communicated to the judge hearing the action until after the judge has delivered judgment. The court shall then, when making an order for costs in the action, have regard to the terms of the formal offer and the reasonableness of the parties in making the formal offer.

Court-appointed experts

Again, this is a completely new concept. The court may appoint such approved persons as it considers appropriate to carry out investigations into, and to give expert evidence in relation to, such matters as the court directs. It will be very interesting to see when and in what circumstances the court will make a decision to appoint such an expert.

Offences

Under the act it is an offence in a PI action to: swear a verifying affidavit that is false or misleading in any material respect and which the deponent knows to be false or misleading; to give, or dishonestly cause to be given, evidence in a PI action that is false or misleading in any material respect and which the witness knows to be false or misleading; or to give, or to dishonestly cause to be given, an instruction or information to a solicitor, or person acting on behalf of a solicitor, or an expert, that is false or misleading in any material respect and which the person knows to be false or misleading.

A person guilty of any of these offences shall be liable, upon conviction on indictment, to a fine not exceeding €100,000 (£67,900), or imprisonment for a term not exceeding 10 years, or to both.

The punishments outlined for offences under the act show clearly the government’s resolve to get rid of fraudulent and exaggerated claims and their consequent cost to society as a result.

Conclusion
While the act headlines revolutionary changes to PI litigation in Ireland, we suspect – as was the case a year after the smoking ban was introduced here for places of work, including bars and restaurants – that by 2006 it will be hard to remember how we dealt with PI actions before the act was in place.

Margaret Muldowney is a partner in the medical division of Arthur Cox