by Laura Mathews May-09-2022 in Healthcare Law

Update to the Rules on windows for lodgments/ tenders

An additional window within which a lodgment or tender may be made by a defendant to a personal injuries action without leave of the Court has been introduced by S.I. No. 186/2022 - Rules of the Superior Courts (Lodgment and Tender) 2022, which came into effect on 26 April 2022.

S.I. No. 186/2022 substitutes Order 22, Rule 1(9) of the Rules of the Superior Courts, as follows:

“(9) Notwithstanding sub-rule (7), in any case in which the plaintiff has, after the expiry of the time within which a defendant could make a payment into Court without leave, served:

(i) a notice of replies to particulars, or

(ii) additional particulars (without a request therefor), or

(iii) a report of a medical practitioner concerning the plaintiff in a personal injuries action, in accordance with or for the purposes of Order 39, rule 46,

the defendant may, thereupon, without leave, make a payment or increase any payment made into Court within 21 days from the date thereof upon notice to the plaintiff.”

Therefore, in addition to windows arising on service of replies to particulars or additional particulars, which has been the case since the previous Rule 1(9) was inserted by S.I. 265/1993, a defendant may now make or increase a lodgment or tender upon service of a further medical report by a plaintiff. At the time of writing, the Rule does not appear on its face to differentiate between a liability report and a condition and prognosis report.

As was the position pertaining to the previous Rule, such lodgment or tender can only be made after the expiry of time within which a defendant could make a lodgment or tender without leave (i.e. at the time of delivery of a Defence or within four months from the date of the Notice of Trial).

This is a welcome development, and will be helpful in situations in which sufficient evidence to make an informed lodgment/ tender is not available at the time of earlier windows i.e. on delivery of Defence or following Notice of Trial, at which point exchange of reports has often not yet occurred.

Recent judicial commentary in application for leave to make a lodgment

A recent written judgment of Mr Justice Coffey1 in an application for leave to make a late lodgment pursuant to Order 22, Rule 1(7) provides insight into the judicial considerations at play in applications of this nature.

Rule 1(7) provides that leave may be granted “upon such terms and conditions as to the Court seem fit” and Mr Justice Coffey noted that the Court must have regard both to the public interest in allowing even a very late lodgment to deter unnecessary litigation and to fairness to ensure that the granting of leave does not confer undue litigation advantage.

In this case, the application was brought three months prior to the trial date. The plaintiff opposed the application on the basis that it followed recent talks in the context of which she had “showed her hand” to the defendants.

Mr Justice Coffey cited Ely v Dargan2 in which O’Dalaigh CJ held that the public interest is served by allowing a defendant to make a lodgment even “at the eleventh hour”. He held that while there may be circumstances which warrant a refusal of leave (i.e. mala fides), he did not consider the fact of previous unsuccessful negotiation or mediation to be reason to refuse leave.

However, Mr Justice Coffey noted that the granting of leave ought to ensure that an undue litigation advantage is not conferred. Therefore, he allowed the defendants’ application for leave but noting the timing of the application, ordered that the lodgment would not take effect until the second day of the trial, up to which point the plaintiff could accept the accept the lodgment and be entitled to her costs (including the first day of trial).

This judgment provides interesting guidance into the view the Courts take to applications of this nature. In the first instance, it appears that “absent mala fides, manifest unfairness or some other disentitling circumstance”, leave will be granted to a defendant seeking to make or increase a lodgment. However, the Courts enjoy a discretion “in the widest possible terms”, as described by Mr Justice Coffey, and terms will be ordered to ensure that litigation advantage is not conferred having regard to the timing of the application.

For further information or to discuss, please contact Laura Mathews or any member of the Healthcare Law team. 

1 Mary T O’Malley v Andrea Hermann and Galway Clinic Doughiska Limited [2022] IEHC 9
2 [1967] IR 89
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