Contributed by Duncan Grehan & Partners
February 2004 ©

Overview:

Reforming measures have been introduced in the past two months aimed at containing costs for the benefit of consumers of legal and insurance services and the better administration of claims. These are outlined below.

Personal Injuries Assessment Board Act, 2003:

a) Interlocutory Orders

In December 2003 we reported here on the draft scheme of this Act by which court proceedings are excluded in assessment-only injury claims. An important exception was introduced on the scheme becoming law on 28/12/03 by the provision in s. 12(3) of the right of a claimant or respondent to apply to the court without having to commence court proceedings for:

"any order of an interlocutory kind or power to make which is provided for by rules of court or otherwise inherent in the court's general jurisdiction in civil proceedings and, in particular, an order restraining the transfer of assets to a place outside the State for the purpose of defeating the rights of another arising out of the relevant claim or the dissipation of assets for that purpose and an order requiring evidence to be preserved".

Such Interlocutory Orders, whether to injunct the transfer of assets outside of the State, the dissipation of assets or to preserve evidence are made by Motion on notice or by ex parte Motion.

These provisions are particularly essential, given the other provision at s. 12(1) that no court proceedings may be brought in respect of any civil action for damages for personal injuries or personal injuries and damage to property until such time as an application for an assessment of the value of the damages claimed has been made to the Personal Injuries Assessment Board and it has issued an authorisation to bring such proceedings. Only if either party does not accept or is deemed not to have accepted the assessment will the Board authorise a determination of the claim through court proceedings. Such Interlocutory Orders will only be made by the court if it is satisfied that the sole purpose of the application is to ensure the fair and just disposition of any proceedings that could be brought in the event of the issue of an authorisation by the Board to commence court proceedings. An applicant for such Order shall be subject to the same duties to which he would be subject if the application were made in the course of proceedings brought in respect of the relevant claim and may be required to give such undertakings as the court may specify in addition to any undertaking he or she may be regarded as having given by operation of law.

b) Procedural Tactics

In December we reported that the work of the Board would commence in early 2004 by hearing employer liability claims. Its work, however, has been delayed and it is not now expected that the ministerial orders required for it to begin will be made until June. Its Book of Quantum which will be a guide to the amount of general damages which it will assess for any particular injury has not yet been published. Its procedural rules have not been published and its Board has yet to be appointed. Critics have pointed out that the scheme may cause delays in the assessment of awards to the claimants' disadvantage but to the advantage of the respondent which may opt in to the Board's assessment procedure thereby delaying the notification of the assessment by 15-18 months without prejudice or admission of any liability in respect of any of the evidence adduced for the purposes of the assessment process and by opting out of the process on it being notified of the assessment leaving the claimant having to then commence court proceedings. Because the Board will make no Order as to costs and proposes to operate in a "lawyer-free zone" the claimant on commencing proceedings at this late stage may face difficulties in proving the loss and adducing appropriate medical evidence or evidence of the defective product causing the injury. To avoid such prejudice claimants will need to continue the current practice of consulting solicitors for advice in relation to the processing of the claim and the preservation of their rights, the respondent's assets and the evidence pending the Board's assessment.

c) New Limitation Periods

It is noteworthy also that by s. 50 of the Act, once an authorisation has been issued by the Board, when any period of time is to be calculated for the purposes of any limitation period, a period starting with the bringing of the application for an assessment to the Board and ending six months from the date of the issue of an authorisation to commence court proceedings shall be disregarded. At present a claimant must have commenced court proceedings in respect of a claim for damages for personal injury within three years of the incident causing the injury or of the claimant's knowledge thereof. This three-year period is now to be shortened to one year under the proposals of the Civil Liability and Courts Bill, 2004 reviewed below and this will be to the considerable disadvantage of the seriously injured and their lawyers who will have to plead particulars of the claim without a diagnosis and prognosis of the injuries necessarily being available within the one year period.

d) Complicated Cases Excluded

Under the 2003 Act, except for injuries alleging medical negligence, every civil action claiming damages for personal injury, whether employer liability cases, road traffic cases or occupier liability cases, must be commenced with an application to the Board. But the Board has a discretion not to make any assessment and to refuse to deal with "complicated" cases where there is an insufficient body of case law or an insufficient number of settlements to which regard may be had by it, or where it may be particularly complex due to "the interaction between each of a number of injuries" or where the injury consists "wholly or in part of psychological damage" or to meet the contingency of the claimant dying, or where the need for a long-term prognosis would exceed the time frame within which an Assessment Order narrowly has to be published.

Civil Liability and Courts Bill, 2004:

The further draft legislative reform of the laws and procedures for personal injury claims has been introduced by this Bill which was published on 06/02/04.

a) Written Notice of Complaint within Two Months

Some of its provisions impact on the Personal Injuries Assessment Board scheme to which it is without prejudice. For example, it provides that before the commencement of any action in respect of a claim for personal injuries or the referring of a claim to the Assessment Board, it shall be a duty of a complainant within two months after the incident is alleged to have occurred or the date of knowledge of the person injured to notify the respondent in writing of the nature of the claim, the complainant's intention to seek redress and that in default a court may disallow all or any part of the cost of the action which would otherwise be recoverable by that party. As mentioned, the Bill proposes to reduce the limitation period from three years to one year for the bringing of personal injuries actions.

b) New Procedures to Abolish the Ambush Approach

The general scheme of the Bill is to reform procedures radically. The current ambush procedure where the claimant provides general particulars of the claim and the respondent merely provides general denials is abolished in favour of specific particulars by the claimant of the injury, of all items of special damage, of the factual basis of the claim and of the negligence alleged. In default a court may either dismiss an action or take the default into account when determining the costs. The Plaintiff must now, on request, detail any other claims for personal injury previously made and the damages awarded or the amount accepted in settlement, details of the claimant's medical history and medical consultants and vouchers from the Revenue Authorities to support any claim for loss of earnings. In default the claim may be dismissed or the court may take the default into account when measuring costs. It is proposed that the Defendant may no longer enter a general Defence and denial ad seriatim of all headings of the Plaintiff's claim. Instead the Defence must now specify what is admitted, what is denied and what is required to be proved, stating the basis for such denial and the version of events on which the Defendant will rely, setting out the facts clearly with the same consequences as to costs in default.

c) Anti-Exaggeration Provisions

Any averment of facts and information provided by a Plaintiff must now be supported by a verifying Affidavit. It will be an offence to make any statement in such Affidavit which the deponent knows to be false or does not believe to be true. The Affidavit is required also to contain an acknowledgement that the deponent is aware of the consequences of delivering a pleading on a matter of fact which is wholly or partly, materially false or exaggerated to a significant extent or in respect of which the Deponent has no honest belief in its truth. If the court is satisfied the party has tendered evidence which is materially false or exaggerated in such a way it shall award Judgement to the other side or order it to pay a sum to the other side reflecting the seriousness of the conduct and the harm which it has caused and the need to deter such conduct generally. The Bill introduces offences of giving false evidence and giving instructions or information to any solicitor acting on the person's behalf and which he or she knows to be false or does not believe to be true with a view to deceiving another party to the claim either on the issue of liability or quantum. Income undeclared for tax purposes shall be disregarded by the court when determining the damages to be rewarded. Henceforth the court shall have regard to any damages previously awarded to or received in a settlement by the Plaintiff for personal injury.

d) Mediation of Claims

The scheme also introduces a right to any party to a personal injury action to request a mediation conference prior to trial and the power of the court to order such a conference to be chaired by a practicing solicitor or barrister of at least five years standing at a venue and time to be agreed or fixed by court in default with the costs of the conference being part of the costs of the action. The parties must attend and must have authority to settle and must actively participate in attempts to settle. All communications during the conference and the chairperson's notes and records shall be confidential and inadmissible in any subsequent trial. The chairperson's report shall be lodged in court at the conclusion of the conference confirming whether there has been a full or partial agreement or no agreement, and that all parties have actually participated. A court may award costs in favour of the other party because of the refusal or failure of one party to participate in the mediation or to actively participate in settlement attempts and such costs may be deducted from any award made in favour of that party against the participating party.

e) Final Offers and Pre-Trial Hearing

The Bill introduces a new procedure whereby the parties must before the commencement of the trial exchange written final offers of settlement which shall not be communicated to the judge until Judgement has been given, but to which the court shall have regard in making Orders about costs. The court may convene a pre-trial hearing to identify evidence which can be agreed and the matters at issue.

f) Evidence on Affidavit

For personal injuries actions it is proposed that where the court considers it appropriate for the proper, expeditious and economic disposal of the proceedings it may order witnesses to provide their evidence by Affidavit.

g) Court Appointed Experts

It is also proposed to empower the court to appoint its own assessors and experts.

Rules of the Superior Courts (Commercial Proceedings), 2004:

a) Commercial Proceedings

The legislative and procedural revolution being introduced to contain the delays and costs of the assessment of personal injuries actions is being paralleled by these Rules which seek to streamline "commercial proceedings" by procedural change and with penalties in default. These are relatively widely defined and expressly exclude claims or counterclaims for damages for personal injuries. The value of the claim should be not less than €1,000,000 generally. The claim will arise from or will relate to a business document, business contract, business dispute, the purchase or sale of commodities, the export or import of goods, the carriage of goods by land, sea, air or pipeline, the exploitation of oil or gas or other natural resources, insurance or re-insurance, the provision of services (excluding medical services or services under a contract of employment), the operation of markets or exchanges and stocks and shares or other investment instruments, the construction of any vehicle, vessel or aircraft, any business agency, applications under Irish Arbitration legislation and any proceedings concerning intellectual property rights such as patents, trade marks, copyright or industrial designs or seeking relief in respect of passing off. The new commercial court now established and which has been sitting since January, will deal with many issues concerning product liability falling within the definition of commercial proceedings.

b) New Procedures and Initial Directions

These "Order 63A Rules" provide for how a party may enter the proceedings into the Commercial List. They set out pre-trial procedures and generally authorises the judge of his own motion to give directions and make Orders, including the fixing of time limits, for the conduct of the proceedings as appears convenient for their determination in a manner which is just and expeditious and likely to minimise the cost of those proceedings. The judge may make a wide range of directions such as to the finding of any issues of fact or law, the direction to any expert witnesses to consult with each other and then record and submit a joint memorandum, directions on the exchange of documents and the transmission of information and the filing in court of documents by electronic means and whether the commercial proceedings ought to be referred to a process of mediation, conciliation or arbitration.

c) Case Management

The judge can direct that the proceedings be subject to case management. A date for a case management conference chaired by a judge shall be fixed and its purpose shall be to ensure that the proceedings are prepared for trial in a manner which is just, expeditious and likely to minimise the costs of the proceedings. Prior to the conference the Plaintiff, in consultation with the other parties, shall prepare a case booklet to be lodged with the Court Registrar and served on the other parties four days before the conference which shall contain a case summary with an agreed outline of the case and sequence of relevant events, a list of the issues not in dispute and agreed and an agreed statement of the issues in dispute, together with all pre-trial documentation in chronological sequence, all pleadings and Affidavits, statements of issues, Orders made or directions given and all open inter partes correspondence relating to the preparation of the case of trial. The conference judge may fix a time for the completion of the preparation of the case for trial and may require any party responsible for any undue delay to attend before him to explain the delay and may disallow costs in respect of any document in the proceedings which contains unnecessary matter or is of unnecessary length or may disallow the costs of any party occasioned by any default by that party in complying with any time limit directed.

d) Pre-Trial Evidence

Where there is no case management directed then any party can apply for the fixing of a date for a pre-trial conference to be chaired by the judge who shall establish what remains to be done prior to the case proceeding to trial, the length of the trial and arrangements for witnesses and information technology. Only when the judge is satisfied the proceedings are ready to proceed shall he fix a trial date.

e) Witness Statements, Video Links and IT Regulation

Any party intending to rely upon the oral evidence of a witness shall serve a written statement of its essential elements signed and dated by the witness or expert upon all parties. Evidence by video link or other means from within or outside of the State may be allowed. The rules of the Commercial Court provide for the electronic service, exchange and lodgement of documents and provide that the President of the High Court may prescribe a requirement as to the hardware and other equipment to be employed by parties filing documents electronically, the use of passwords, electronic signatures, digital signatures or other means of authenticating documents, the use of firewalls, anti-virus tools or other devices to avoid damage to the information system of the courts or of any party or their solicitor or Counsel and compliance with practices for the purposes of ensuring that harmful, deleterious or offensive material does not enter the information system of such parties.

Comment:

Practitioners in contentious product liability claims are facing into a new régime whose motto is efficiency and the purging of unnecessary litigation costs. These reforming schemes are in their infancy. Non-enforcement and non-compliance may undermine their objectives of providing an adjudicative framework which will give disputing parties every opportunity to reach a settlement rather than have a determination imposed upon them by the courts at considerable cost.