Personal injury litigation in Ireland has been transformed by the Civil Liability and Courts Act, 2004 (“2004 Act”). Much of the motivation behind the coming into force of the 2004 Act, was to tackle insurance costs, which was blamed on high legal costs in personal injury actions, and insurance fraud.
There is some overlap between the Personal Injuries Assessment Board Act 2003 (“PIAB” Act”) and the 2004 Act, in particular relating to the initial stages of personal injury litigation which has important implications for Plaintiffs who are considering bringing an action for personal injury. Indeed, the 2004 Act places onerous obligations on Plaintiffs, their solicitors and their barristers who prosecute damages claims for personal injuries.
The following is a summary of some of the main procedural changes insofar as they relate to the conduct of personal injuries litigation, which have been introduced by the 2004 Act.
The Statute of Limitations
The Act reduces the period within which a claim for damages in a personal injuries case can be made by amending the Statute of Limitations (Amendment) Act 1991. The period has now been reduced from three years to two years from “the relevant date”. The relevant date is the date of the cause of action, or the date of knowledge of the cause of action, whichever occurs later. This amendment to the Statute of Limitations Act 1991 came into effect on the 31st March 2005.1
The Act provides that where the relevant date, in respect of a cause of action, falls before the commencement of Section 7 of the 2004 Act, i.e. the 31st March 2005, an action shall not be brought after the expiration of:-
- two years from the said commencement or;
- three years from the relevant date, whichever occurs first.
Whilst the 2004 Act amends the Statute of Limitations (Amendment) Act 1991, there is no reference in the 2004 Act to any amendment of the limitation periods for personal injury actions whilst embarking or disembarking an aircraft, which is governed by the Warsaw Convention, 1929 or for personal injury actions whilst on board a vessel, which is governed by Section 46 (2) of the Civil Liability Act, 1961, both of which remain two years from the date of the cause of action.
The Letter of Claim
The Act attempts to “front load” litigation, requiring parties to assess the cases from the outset. A Plaintiff must now serve a Letter of Claim on the wrongdoer setting out the nature of the wrong alleged to have been committed.2 The Letter of Claim must be sent before any application is made to PIAB and indeed PIAB requires that a copy of this letter is submitted to it when making an application for assessment to PIAB.
The Letter Of Claim must be sent within two months of ‘ the relevant date’, or “as soon as practicable thereafter”. In particular, there is an onus on Solicitors to send this letter as soon as possible upon receipt of accurate instructions, to avoid there being any query raised by the Defendant, at the trial of the case, as to whether there has been delay on the part of the Plaintiff in initiating the proceedings or as to the accuracy of the claim, which may have prejudiced the Defendant. The court can use its discretion in awarding costs against a Plaintiff for failure to serve this letter within the time prescribed.
The types of actions covered by the requirement for letter of claim under the 2004 Act are:-
- actions for damages for personal injuries;
- actions for damages for both personal injuries and damage to property (but only if both have been caused by the same wrong);
- actions for damages for fatal injury under Section 48 of the Civil Liability Act, 1961.
Claims for compensation under the Garda Siochana Compensation Acts or any actions where the damages sought include damages for false imprisonment or trespass to the person are specifically excluded.
Personal Injury Summons
The 2004 Act changes the way in which all claims are initiated in the District, Circuit and High Court. Personal injury claims are now commenced by a new document known as a Personal Injuries Summons.
In the Personal Injuries Summons the Plaintiff is required from the commencement of the proceedings to provide full particulars of his or her complaint to the Defendant. In this regard the Plaintiff must provide details concerning the injuries suffered, special damages and wrongdoing of the Defendant and all personal details including his or her PRSI number.3 If a Plaintiff fails to comply with the provisions of the 2004 Act, the court can use its discretion to dismiss the Plaintiff’s claim or award costs against the Plaintiff.
A Defendant in serving a Defence, will no longer be able deny all claims made against it thereby putting the Plaintiff on proof of all aspects of his/her case. The Defence must now specify all allegations of which the Defendant does not require proof; all allegations of which the Defendant does require proof; the grounds on which the Defendant is not liable for the injuries and where contributory negligence is alleged, the grounds on which it is alleged. Defendants are encouraged to state the positive case of the Defence at an early stage, the aim being to narrow the issue early on in the proceedings.
From a practical point of view, the onus is now greater on the Defendant to file a very detailed Defence within the time limits prescribed under the 2004 Act, which are eight weeks from the delivery of the Personal Injuries Summons in the High Court, within six weeks from the entry by the Defendant of an Appearance in the Circuit Court and within twenty eight days from the delivery of a Personal Injuries Summons in the District Court. It is now even more important for Defendants to seek immediate expert advice on receipt of a Personal Injuries Summons.
All parties to proceedings are now required to swear Affidavits as to veracity of the contents of all pleadings served.4 The motivation behind this requirement is to combat those who seek to embark on legal actions for compensation on a fraudulent or exaggerated basis. It is now even more important for Plaintiffs and Defendants to ensure the accuracy of the claims they are making as the 2004 Act provides for criminal sanctions for the first time against those who engage in litigation and who provide false or misleading information.
This Section applies retrospectively and either party in existing litigation can, at least 21 days before a date is fixed for trial, request the other party to swear an Affidavit verifying the contents of any pleading served to date.
The 2004 Act, for the first time provides for alternative dispute resolution in cases involving personal injury.5 Any of the parties to the proceedings can request that the parties attend a mediation conference with a view to attempting to settle the proceedings. The court can not direct mediation to take place, but should mediation be instigated by either of the parties to the proceedings, it would appear that the court can direct the parties into mediation not withstanding that the other party does not want to engage in mediation.
The 2004 Act provides for the appointment of a chairperson to the mediation conference who can submit a report to the court and where any party has not complied with any direction of the court with regard to the mediation, the court is permitted to impose costs penalties on that party.
Parties to a personal injuries action will now be required to offer terms of settlement to each other after a ‘prescribed date’ in the litigation proceedings, which has yet to be confirmed by the Minister. The terms of the offer are not communicated to the Judge until after he has delivered judgment. The 2004 Act provides for the court, when considering the appropriate costs order to be made at the conclusion of the case, to consider the “reasonableness of the conduct of the parties in making their offers’.6
The 2004 Act also introduces the concept of pre-trial review into the area of personal injuries litigation.7 The court can decide of its own volition that a hearing should be held before the trial of the action for determining what matters relating to the action remain in dispute. This provision may be useful in complicated personal injuries cases to assist in limiting the issues with a resultant savings in costs.
The Book of Quantum
There is further interplay between PIAB and the 2004 Act in that it specifically provides that a court can have regard to the Book of Quantum when assessing damages in a personal injuries action.
New Offences Created by the Act
The 2004 Act creates new offences. The new offences are in relation to providing false or misleading information in a verifying affidavit, false evidence in a personal injury action and false instructions in a personal injury action. Section 29 provides that a person who is found guilty of an offence is liable on conviction to a fine not exceeding €100,000 or imprisonment to a term not exceeding 10 years and where tried summarily a person is liable on conviction to a fine not exceeding €3,000 and/or imprisonment for a term not exceeding 12 months or both.
The Court can also dismiss the Plaintiff’s action on finding the action is fraudulent or that a verifying affidavit is false or misleading.
Assessment of Undeclared Income in awarding damages
For the first time the 2004 Act provides specifically for the assessment of undeclared income in awarding damages. All undeclared income will now be disregarded by the court when assessing damages. However it is left to the discretion of the court not to disregard undeclared income if it would be unjust to disregard the income, profit or gain.8
The 2004 Act provides for the making of regulations prescribing actuarial tables9 and the discount rate10 to be referred to and applied by the courts in assessing damages aswell as amending the law on the non deductibility of certain benefits received by Plaintiffs in fatal accident claims and / or in claims taken in their own name.11However, Section 23(4), contains a proviso that the court may apply a different discount rate if, “it considers that the application of the rate prescribed would result in injustice being done”.
Court Appointed Expert
The court can now appoint its own expert to give evidence at the trial of a case who can be cross examined by either party to the action. The costs of the appointment of the expert will be borne by either of the parties, as directed by the court. The purpose of the expert is to give a single over view of the evidence available with the hope of speedier litigation.
- 1 Section 7 of the Civil Liability and Courts Act, 2004.
- 2 Section 8 of the Civil Liability and Courts Act, 2004.
- 3 Section 10 of the Civil Liability and Courts Act, 2004.
- 4 Section 14 of the Civil Liability and Courts Act, 2004.
- 5 Section 15 of the Civil Liability and Courts Act, 2004.
- 6 Section 17 of the Civil Liability and Courts Act, 2004.
- 7 Section 18 of the Civil Liability and Courts Act, 2004.
- 8 Section 28 of the Civil Liability and Courts Act, 2004.
- 9 Section 23 of the Civil Liability and Courts Act, 2004.
- 10 Section 24 of the Civil Liability and Courts Act, 2004.
- 11 Section 27 of the Civil Liability and Courts Act, 2004.