Tag: civil liability and courts act 2004

Categories
Personal Injury Claims

Personal Injury Claims Changes from Jan & April 2019

Some changes have been made to the way in which personal injury claims are to be pursued in Ireland; some of the changes commenced in January 2019, others from April 2019.

Let’s take a look.

Section 8 of the Civil Liability and Courts Act 2004 provides that a letter of claim must be served within 2 months of the date of the cause of action. From January 2019 this has been reduced to 1 month.

The amended section 8 also states that the court hearing the action shall draw such inferences as appear proper from the failure to serve the letter; it was the case that the court “may” draw such inferences.

Here is the amended section 8:

Letter of claim.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of F1 [ one month from the date of the cause of action, ] on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, F1 [ the court hearing the action shall ]—

( a) draw such inferences from the failure as appear proper, and

( b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action” means—

( a) the date of accrual of the cause of action, or

( b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed, whichever occurs later.

Verifying affidavit

Section 14 of the Civil Liability and Courts Act 2004 provides for a verifying affidavit. This section is changed as follows:

 (4A) Where there is a failure to comply with subsection (4) , the court hearing the personal injuries action concerned shall—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require —

(i) make no order as to the payment of costs to the party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate. ]

These changes came into effect from 28th January 2019.

Personal Injuries Assessment Board (Amendment) Act 2019

This act commenced on 3rd April 2019. Some of the “highlights” include:

  • Section 51C provides that the Court may penalise claimants and respondents as to costs where they have not complied with a request made by the PIAB assessors for additional information or documents; to provide assistance to experts retained by the PIAB or furnish information or documents or co-operate with those experts; or for the claimant to submit himself or herself to a medical examination.
  • A medical report is not now necessary with the application to the Injuries Board to stop the clock from running for the Statute of Limitations; submitting form A is sufficient and PIAB will serve a preliminary notice on the respondent but will not serve the formal section 13 notice and commence the 90 day period until a medical report is received.

Here is the Personal Injuries Assessment Board (Amendment) Act 2019 in full.

Categories
Litigation

Replies to Particulars in Civil Litigation-What You Ought to Know

 

replies to particulars

Litigation is the process you engage in when you are involved in civil legal proceedings, for example a personal injury claim or a commercial dispute. An important part of litigation is the serving of a Notice for Particulars, and the consequent Replies to Notice for Particulars.

Notice for Particulars

The Notice for Particulars is a series of questions that the Defendant will send to the Plaintiff in order to see what case he will have to meet and to ascertain the details of the alleged wrongdoing, the circumstances giving rise to the claim, details of the injury/damage, and so forth. It forces the Plaintiff to set out the exact details of his claim.

The formal legal position of the parties is set out in Pleadings and the Pleadings combined with the Particulars allows a party to the proceedings to see in broad outline the case it will have to meet at trial.

In recent years, however, the extensive, broad, and sometimes oppressive nature of the Particulars being sought have been considered by the Courts as some of the questions sought appeared to be irrelevant to the issues at hand.

Armstrong v Moffatt [2013] IEHC 148

The High Court considered the question of Particulars in this case which was a personal injury action. Section 11 of Civil Liability and Courts Act 2004 allows the Defendant in a personal injury action to request further information, including

(a) particulars of any personal injuries action brought by the plaintiff in which a court made an award of damages,

(b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled,

(c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and

(d) the name of any persons from whom the plaintiff received such medical treatment,

 

Two of the defendants in Armstrong v Moffatt sought particulars of information over and above what was provided for in section 11 above. The Plaintiff’s solicitor refused the request and pointed to section 11 as the extent of his client’s obligation and the High Court was asked to determine the issue.

High Court

The High Court firstly stated that the Civil Liability and Courts Act 2004 did not alter the general position arising from the Rules of the Superior Courts. Order 19 deals with pleading generally in the Superior Courts and states:

7. (1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.

(2) Before applying under this rule to the Court a party may apply for particulars by letter. The costs of each letter and of any particulars delivered pursuant thereto shall be allowable on taxation. In dealing with the costs of any application for particulars, the provisions of this paragraph shall be taken into consideration by the Court.

(3) Particulars shall not be ordered under this rule to be delivered before defence or reply, as the case may be, unless the Court shall be of opinion that they are necessary or desirable to enable the defendant or plaintiff, as the case may be, to plead or ought for any other special reason to be so delivered.

From this Judge Hogan held that particulars shall be ordered if it is “just” to do so-that is, in the interest of fair procedures, and to ensure a party will not be taken by surprised by the case he has to meet at trial.

However, he went on to say that Courts should be more prepared to refuse requests for particulars that are oppressive and indiscriminate and, possibly, an abuse of process. He referred also to the fact that the Oireachtais had set out in section 10 of Civil Liability and Courts act 2004 how a personal injuries claim should be pleaded and if this was done correctly the need for further extensive replies to particulars should be the exception, not the rule.

In this case Judge Hogan struck out particulars which fell outside of section 11. He also commented that even though the indiscriminate use of excessive particulars was curtailed by the Civil Liability and Courts Act 2004 in respect of personal injury claims there was no brake put on such requests in other types of case.

Conclusion

Notices for Particulars should be used to establish, in broad outline, the case the defendant has to meet at trial. Anything over and above this should be carefully considered by both parties because there is a risk of such requests being struck down by the High Court with consequent costs implications.

As Judge Hogan suggested,

Perhaps, accordingly, what is called for is a more discriminating approach on the part of the general legal community to the question of particulars which avoids the prolix, the unnecessary and the irrelevant and which opts instead for the well placed question which genuinely clarifies a matter which actually is contained in the pleadings. In this – as in much else in litigation – the fox is more likely to prevail than the lion.

Useful resources:

  1. S.I. No. 15/1986 – The Rules of the Superior Courts
  2. Rules of the Superior Courts on Courts Service website (easier to navigate than the SI above)
  3. Statutory Instrument No. 254 of 2016 (The Rules of the Superior Courts (Conduct of Trials) 2016)
  4. Statutory Instrument No. 255 of 2016 (The Rules of the Superior Courts (Chancery and Non-Jury Actions: Pre-Trial Procedures) 2016)