Insights

Changes in Personal Injury Litigation

 

Significant changes in Personal Injuries Litigation

Two of the main pieces of legislation often referred to in Personal Injuries Litigation are the Civil Liability and Courts Act 2004 (hereinafter “the 2004 Act”) and the Personal Injuries Assessment Board Act 2003 (hereinafter “the 2003 Act”). Since 3 April 2019, the PIAB (Amendment) Act 2019 has come into force joining the group of significant pieces of legislation in this area.

Amendments to the 2004 Act

Section 8

As one of the initial steps in the Personal Injuries litigation process consists of sending what is commonly known as a “Section 8 letter”, the first and most important amendment was passed in relation to this obligation. Section 13 of the Central Bank (National Claims Information Database) Act 2018 has amended Section 8 of the 2004 Act to reflect that the obligation of service of the Section 8 letter within two months has now been reduced to one month. This amendment also removed “or soon as practicable thereafter” and most significantly, the Court now “shall” draw inferences from a failure to do so as opposed to “may”.

In light of this change, all accidents that occur on or after 28 January 2019 are bound by this amendment. Therefore, all personal injuries summons issued on or after that date which are not served within the one month period, must provide an explanation as to what “reasonable cause” existed to explain such a failure. If such explanation is not forthcoming or not accepted by the Court, the Court shall draw inferences and costs deduction would seem inevitable.

Section 14

In equal importance is the amendment of this section. Section 14 requires that all pleadings shall be verified by the Plaintiff and Defendant and, should the Plaintiff provide further information by way of affidavit, same should be lodged within 21 days of delivery of such pleading or information and also be verified. The new section 14 (4)(a) now mirrors the penalty provisions in Section 8 for failure to do so, i.e., Court shall draw inferences and costs will be affected.

PIAB (Amendment) Act 2019

This is another significant piece of legislation which has come into force on 3 April 2019. The key provisions are Section 51C, Section 13, Section 50 and Section 54.

SecTion 51C

This section penalises claimants (and respondents in some cases) in the event of failure to comply with requests for documents, attend medical examinations and provide information or documents in respect of special damages or further medical information. Failure to cooperate with PIAB allows the court to make orders which will impact on costs or how same is apportioned. Unlike the above amendments to the 2004 Act, this section contains no mandatory requirement.

It is important to note that this requirement applies to all applications made under Section 11 after 3 April and all applications made before that where such requests had not already been made

Section 13 

Under tHis section, there is no longer a requirement to lodge a medical report (Form B) with the application form in order to stop the clock. The original position was that, in order for the clock to stop running, both Forms A and B needed to be submitted with the application. The position now is that the application itself is deemed to suffice for that purpose. However, the formal Section 13 notice which sets the 90 day period in motion will not be served until a medical report is provided and the administration fee (45e) is paid.

Section 50 ­(Renehan v T&S Taverns (2015 IESC 8))

This section rectified an anomaly in legislation which originally allowed the statute of limitations to stop running in relation to all respondents – even where a respondent was added to proceedings at a later stage. The position now is that the actual date of joining a new respondent to an application already made will be date on which the statute stops running for the purposes of Section 50 of the 2003 Act as opposed to the date of the original application.

Section 54

The Book of Quantum must now be revised at least every three years.

For further information please contact G J Moloney in Cork or Dublin.

 

 

 

COURT RECORDS & ACCESS BY THE MEDIA

 

 

The Data Protection Act 2018 has a significant impact on the media’s access to court records.  The Rules of the Superior Courts have implemented new rules to allow a bona fide member of the media access to documentation opened or deemed to have been opened in Supreme Court, Court of Appeal and High Court.

 

A bone fide member of the media includes a persons who can produce a valid National Press Card, a valid International Federation of Journalists Press Card, a valid ID identifying them a reporter/correspondent or employed by an online new agency/website which is a member of the Press Council of Ireland, and reporter/ correspondent employed by a company licensed by the Broadcasting Authority of Ireland.

 

Previously, the media have always had the right to report on what was said in open court. Under the new Rules, the media will now have a right to access documentation, in both civil and criminal matters, which is referred to in court and documentation which is deemed to have been opened. This applies to the full document even if only a small portion of the document was referred to or if the Judge has read the document in preparation for the hearing. Restrictions will still apply to certain types of cases i.e. those held in camera.

 

Under the new rules, the media can access the documents under the supervision of the courts service and they can take a copy of the document, provided they give an undertaking to return the document at the end of the reporting of the hearing. The media can also obtain a press release from the Courts Services in relation to the proceedings that they are reporting on.

 

The consequences of this change is that the media can thoroughly examine court documentation and this could lead to more detailed reporting. Therefore, clients may not want certain personal information and /or sensitive information to be available in the public sphere.  

 

If you seek any advice on this matter, please do not hesitate to contact our litigation department.

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