PI Procedure Issues

Table of Contents

Initiating Claim

The Civil Liability and Courts Act made significant amendments to the procedure in respect of personal injury claim. It reduced the general Statute of Limitations limitation period in respect of personal injury claims from three years to two years. The date runs from the accrual of the claim or the date of knowledge (or deemed knowledge) of the person concerned as respect the claim, if later.

Where a claimant in a personal injuries action fails without reasonable cause to serve a notice in writing within two months of the date of the claim arising or as soon as practicable thereafter, and the wrongdoer or the alleged wrongdoer, stating the nature of the wrong alleged to have been committed by him or her, the court may make certain inferences. It may draw inferences from the failure as they appear proper. Where the interest of justice so requires, it may make no order as to payment of costs. Alternatively, it may deduct such amount for costs that would but for the section be payable to the plaintiff as it considers appropriate.

The date of the cause of action is the date of the claim arising or the date of knowledge of the person against whom the wrong was committed or alleged to have been committed.

Compliance with Time Limits

The court in a personal injury action is obliged to ensure that the parties to the action comply with the Rules of Court as they apply in relation to personal injury actions so that the trial of the personal injury action is within a reasonable period of their having been commenced is secured.

For the purpose of ensuring compliance by a party to a personal injury action with Rules of Court, a court may make such orders as to payments of costs as it considers appropriate.

Where rules prescribe the period of time for service of documents or doing of a thing, the period in which the document may be served and the thing may be done shall not be extended beyond the period prescribed unless the parties agree or the court considers that normal circumstances, the extension of the period by such further period as it may direct is necessary or expedient to enable the action to be properly prosecuted or defended, and the interest of justice require the extension of the period by that further period.

Special Forms of Summons / Claim

Proceedings in the High Court, Circuit Court or District Court in respect of a personal injury action are commenced by a summons known and referred to as a personal injury summons. A personal injury summons shall specify

the plaintiff\’s name and the address at which he or she ordinarily resides and his occupation;
plaintiff’s PPS number;
defendant\’s name, occupation and address, occupation if known;
injuries alleged to have been occasioned by the wrong;
full particulars of all items of special damage in respect of which the plaintiff is making a claim;
full particulars of the acts of the defendant constituting the wrong and the circumstances relating to the commission of the wrong;
full particulars of each instance of negligence by the defendant.

Where the plaintiff fails to comply with the above provisions

the court may direct that the action shall not proceed any further until the plaintiff complies with such conditions as the court may specify;
where it considers that the interests of justice so requires, the court may dismiss the action;
the court shall take such failure into account when deciding to make an order as to the payment of costs of the action concerned and as to the amount of costs
the court hearing the personal injuries action may draw such inferences as appears proper.

Upon a request of the defendant in a personal injuries action, the plaintiff shall provide the defendant with:

particulars of any personal injuries action brought by the plaintiff in which an award of damages has been made,
particulars of personal injuries action brought by the plaintiff which was withdrawn or settled;
particulars of any injury sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injury action relates;
the name of any persons from whom the plaintiff received such medical treatment;
Revenue and Social Welfare information as may be prescribed, relating to earnings or other income in relation to which the plaintiff is making a claim.

Default of Compliance

Where the plaintiff fails to comply with the above request, the court may direct that the personal injury action shall not proceed any further until the plaintiff complies with such conditions as may be specified or where it considers that the interests of justice so require, dismiss the plaintiff\’s action. The court shall in the hearing, take such failure into account when deciding to make any order as to the payment of the costs of the action, or the amount of such costs.

Where the above information is requested and the plaintiff fails to comply with the request, the court hearing the personal injuries action may draw such inferences from the failure as appear proper. The Department of Social Welfare and Revenue Commissioners is obliged to furnish the relevant information.

Defence and Counterclaim

A defence to a personal injuries action shall specify:

the allegations specified or matters pleaded in the personal injuries summons of which the defendant does not require proof;
those with which it does require proof;
the grounds on which the defendant claims that he or she is not liable for any injuries suffered by the plaintiff;
where the defendant alleges that some or all of the personal injuries suffered were occasioned in whole or in part by the plaintiff\’s own acts, the grounds on which he so alleges.

A counterclaim in a personal injuries action shall specify

the PPS number of the defendant concerned;
the injuries to the defendant alleged to have been occasioned by the plaintiff\’s wrong;
full particulars of all items of special damage in respect of which the defendant claims;
full particulars of the acts of the plaintiff constituting the said wrong and the circumstances relating to its commission;
full particulars of each instance of negligence by the plaintiff.

Where the defendant fails to comply with the above matters in respect of a counterclaim, similar provisions as apply to a failure on the part of the plaintiff in respect of its claim, are applicable.

Details and Verification

Pleadings in a personal injury action shall in the case of the plaintiff\’s case contain full and detailed particulars of the claim of which the action consists and of each allegation, assertion and plea comprising that action. In the case of a defendant or third party, it is to contain full and detailed particulars of each denial or traverse, and of each allegation, assertion or plea, comprising his defence. Subject to this, the form of personal injuries action pleadings may be prescribed by Rules of Court.

Where the plaintiff in a personal injuries action serves on the defendant any pleading containing assertions or allegations, or provides further information to the defendant, the plaintiff (or in the case of a person of unsound mind or an infant, the next friend or committee) shall swear an affidavit verifying those assertions or allegations, or that further information.

Where a defendant or third party in personal injuries action serves on another party to the action any pleading containing assertions or allegations, the defendant or third party, as the case may be, shall swear an affidavit verifying the assertions or allegations concerned.

Where a personal injuries action is brought on behalf of an infant or a person of unsound mind, the next friend or committee shall swear an affidavit in respect of the assertions, allegations or further information, to the best of his knowledge, information and belief (where he does not have direct knowledge).

The required affidavit must be lodged in court not later than 21 days after the service of pleadings or such longer period as the court may direct or the parties may agree.If a person makes a statement in the affidavit which is false or misleading in any material respect, and that he or she knows to be false or misleading, he is guilty of an offence. The affidavit shall include a statement by the person swearing it that he or she knows that the making of the statement by him in this manner would be in a manner which is false and misleading in any respect is an offence.

Mediation / ADR

Upon the request of any party to a personal injuries action, the court may at any time before the trial of the action, and if it considers that the holding of a meeting pursuant to a direction under this provision would assist in reaching a settlement, direct that the parties to the action meet to discuss and attempt to settle the action. This is a mediation conference. Where the court gives a direction, each party shall comply.

A mediation conference shall take place at a time to be agreed or if not agreed, at a time and place directed by the court. There shall be a chairperson of the conference who shall be a person appointed by agreement of all parties to the action or where no such agreement is reached, by a person appointed by the court. The person shall be a practising barrister or solicitor of at least five years standing, or a person nominated by a body prescribed, for this purpose by ministerial order.

The notes of the chairperson of a mediation conference and all communications during the mediation conference or any records or other evidence thereof are confidential. They may not be used in evidence in any proceedings, whether civil or criminal. The costs incurred in the holding and conducting of a mediation conference shall be paid by the party to the personal injuries action concerned, as the court hearing that action shall direct.

The chairperson of a mediation conference shall prepare and submit to the court hearing the personal injuries action, a report which will set out, where the mediation conference did not take place, a statement of the reasons why. Where a mediation conference did take place, it shall set out a statement of whether or not a settlement has been reached and where it has been entered, a statement of its terms and conditions signed by the parties. A copy of the report shall be given to each party to the action at the same time it is submitted to the court.

Mediation Offers and Costs

At the conclusion of a personal injuries action, the court may after hearing submissions of the parties, and if satisfied that a party failed to comply with a direction in respect of mediation, make an order directing that party to pay the costs of the action or such part of the costs as it directs, incurred after the giving of the direction.

The plaintiff in a personal injuries action shall serve a notice in writing of an offer of terms of settlement on the defendant. A defendant in a personal injuries action shall serve a notice in writing on the plaintiff of an offer of terms of a settlement, or stating whether he or she is not prepared to pay any sum of money to the plaintiff in a settlement.

A copy of the formal offer shall, after the expiration of the prescribed period, be lodged in court by or on behalf of the parties. The terms of a formal offer shall not be communicated to the Judge until after he has delivered judgment in the action.

The court in considering an order as to costs, shall have regard to the terms of the formal offer and the reasonableness of the conduct of the parties in making the offer. This is in addition to, and not in substitution of the provisions in relation to lodgements. The prescribed date means a date before the commencement of the trial of the personal injuries action as may be prescribed by ministerial order.

Offer Catastrophic Injuries

Where a formal offer is made in respect of a personal injuries action relating to a catastrophic injury, the formal offer shall specify the proportion of the amount of the formal offer that is attributable to—

the future medical treatment of the plaintiff,
the future care of the plaintiff,
the provision of assistive technology or other aids and appliances associated with the medical treatment and care of the plaintiff, and
future loss of earnings of the plaintiff.

Pre-trial Hearings And Evidence

Where, in a personal injuries action, the court considers it appropriate, it shall direct that a hearing be held before the trial of the action for the purposes of determining what matters relating to the action are in dispute. This power is in addition to the general power to give directions in personal injury action. All parties to the action are entitled to attend. The hearing will be presided over by High Court Judge, Master of the High Court or Deputy Master in a High Court case and either the Circuit Judge or County Registrar in the Circuit Court case and District Judge in a District Court case.

In a personal injuries action, evidence of a matter shall where the court so directs, be given by affidavit. This does not deprive a party to the action of the right to cross-examine a witness who has given evidence by affidavit in accordance with a direction.

In a personal injuries action, the court may appoint such approved persons as it considers appropriate to carry out investigations and give expert evidence in relation to such matters as the court directs. The person approved is to be approved by the President of the relevant court, whether High Court, District Court or Circuit Court. The costs incurred in the appointment of, or carrying out of an investigation by a person appointed above purpose are to be paid by the party to the personal injuries action as the court hearing the action shall direct.

The parties in the personal injuries action shall cooperate with the person appointed for the purpose of such an investigation. In particular, they shall provide the appointed person with the report or any other documents prepared by that party, and any reports or other document prepared on behalf of the party concerned for the purpose of or in contemplation of personal injury actions. They shall also furnish any document or information used or referred to for the purpose of preparing the report. A party in a personal injuries action is entitled to cross-examine a person appointed above in relation to any matter which he or she was appointed to investigate and give expert evidence on.

Appeal Issues

The Supreme Court may, on an appeal to it in a personal injuries action, invite such persons as it considers appropriate to make submissions to the court in relation to any matter concerning liability or damages that it considers to be of exceptional public importance and if the action belongs to a class of cases in which the same or a similar matter arises.

The Supreme Court may take the above steps on receiving a request from a party to the action or from a person who is not a party, or on its own initiative.

Book of Quantum

The court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum. This does not prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action. The Book of Quantum is the Book of Quantum published by the Injuries Board.

The Minister may by regulations, prescribe actuarial tables for reference in court when assessing damages in personal injuries cases in respect of future financial loss. The court is to refer to such tables in respect of assessing damages for a future financial loss. The Minister may prescribe the discount rate which is to apply for the purpose of assessment of damages in respect of future financial loss.

Regulations may prescribe different rates in respect of different classes of financial loss in different periods of time. The court may apply a discount rate other than the rate prescribed if it considers that the application of the rate prescribed would result in injustice. In this context, the “discount” rate means the rate commonly referred to by that name for the purpose of determining the current value of the future financial loss.