Injury Claims – some new rules for 2019

Apr 25, 2019

Civil Liability and Courts Act 2004 – Letter of claim (Section 8)

Recent amendments to the Civil Liability and Courts Act 2004 (the 2004 Act) have reduced the time for issuing a letter of claim under section 8 and have introduced costs penalties for failing to file a verifying affidavit, where required, within the time specified in section 14.

Section 8 of the Civil Liability and Courts Act 2004 provides that a letter of claim stating the nature of the wrong alleged must be provided to an alleged wrongdoer by a claimant who intends to pursue a claim for damages for personal injuries or fatal injuries. From 28 January 2019, the time for issuing this letter has been reduced, in effect, to “one month from the date of the cause of action”. Previously, the period for issuing this letter was “2 months from the date of the cause of action, or as soon as practicable thereafter.” 

A further amendment provides that the Court hearing the action “shall” rather than “may” draw such inferences from a failure to provide the letter of claim in the time proscribed as appear proper and shall, where the interests of justice so require, penalise the plaintiff as to costs.

In light of the now mandatory nature of the Court’s role under Section 8, new Rules of Court are expected that will require that all personal injuries summons issued for claims arising on or after 28 January 2019 in respect of which a claim letter was not served within the one month period, must set out an explanation as to what “reasonable cause” existed to explain such failure. If none is provided, or such explanation is not accepted by the Court, then inferences and costs deductions are likely to follow.

Affidavits verifying your claim

Anew section 14(4A) has been inserted into the 2004 Act. It provides that where a party fails to file a verifying affidavit in accordance with section 14 (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 —

  1. make no order as to the payment of costs to the party responsible for the failure, or
  2. 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 amendments to section 8 (1) and section 14 of the 2004 Act were made by section 13, Central Bank (National Claims Information Database) Act 2018 .

It was commenced on 28 January 2019.

PIAB – Legislative Changes

The Personal Injuries Assessment Board (Amendment) Act 2019 will come into force on 3 April 2019. The following are just some of its provisions :

  • Section 51C is a new provision that 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. Where the claim subsequently comes before the court, the judge may take such failure in to account and has discretion to deny the defaulting party an award of costs and order that the defaulting party pay all or portion of the other party’s costs. Section 51C applies to all applications made to PIAB under Section 11 after 3 April and all applications made before that date where PIAB has not previously made such requests.
  • Section 13 (amended by section 2, 2019 Act) means that it is no longer essential to lodge a medical report with the application form in order to stop the clock for the Statute of Limitations. From the 3 April 2019, submitting Form A will suffice for that purpose. However, in such circumstances PIAB will serve “a preliminary notice” on the respondent and 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 PIAB administration fee (currently €45) is paid.
  • Section 50 (as amended by section 7, 2019 Act) resolves the anomaly identified in the case of Renehan v T & S Taverns [2015] IESC 8. The amendment provides that where a further respondent or respondents are added to an application which is already with the PIAB, the statutory limitation period for the claim against that respondent(s) stops for the purposes of Section 50 of the 2003 Act on the date of such addition as opposed to the date of the original application.
  • Section 54 (as amended by section 9, 2019 Act) provides that the Book of Quantum must now be reviewed from time to time and revised at least every three years.
  • Section 79 (as amended by section 14, 2019 Act) provides that the PIAB can now serve/issue documents electronically or by document exchange service, where consent to such service/issue is given.

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