by Robbie Slattery March-28-2019 in Litigation & Dispute Resolution
Since 2004, a person who wishes the bring proceedings seeking damages for personal injuries has been required to send a letter of claim in advance of litigation, setting out the basis of their claim 1.
Two specific elements of this rule were important: first, the person was obliged to serve that letter of claim within two months of the date of their cause of action 2, and second, if they failed to do so, it was provided that a Court ultimately hearing their case may draw such inferences from the failure as appeared proper and, if required by the circumstances of the case, refuse to grant the plaintiff their legal costs in the action or reduce the costs awarded. Clearly, this could have significant ramifications for a plaintiff.
These provisions were permissive rather than mandatory and were not adopted in a widespread manner by the Courts 3. In the Supreme Court judgment in Doyle v Banville [2018] 1 IR 505 the provision was cited and the Supreme Court noted that it allowed inferences to be drawn in certain circumstances, but concluded that it did not apply to the facts of that case 4.
However, the position in relation to letters of claim has been altered in an important way, with effect from 28 January 2019 5. From that date, a person who wishes to bring personal injuries proceedings must serve a letter of claim within the shorter period of one month from the date of the cause of action. If they fail to do so, the Judge who ultimately hears the case shall draw such inferences as appear proper and either refuse to award legal costs to the plaintiff or reduce those costs, where the interests of justice require.
The net effect of this change is that the period in which to serve letter of claim is shorter, but more importantly, it is now mandatory that the trial Judge consider imposing the adverse consequences outlined above where this fails to occur.
It is also notable that from the same date, a party who fails to file a verifying affidavit shall face similar adverse consequences 6: the judge hearing the case shall draw such inferences from the failure as appear proper, and where the interests of justice require, either refuse to grant that party their costs or reduce the amount of costs payable. Parties to personal injuries proceedings have also been required since 2004 to verifying affidavits, confirming the truth of the facts asserted by them in the case. However, these new potential adverse consequences for failure to comply make it all the more important that this is done in the correct manner.
Clearly, it is key that the advisors of plaintiffs and defendants in personal injuries litigation are alive to the consequences of these changes.
For further information, please contact Robbie Slattery rslattery@hayes-solicitors.ie at Hayes solicitors.
1 See s.8 of the Civil Liability and Courts Act 2004.
2 The date of the ‘cause of action’ will commonly be the date of an accident which caused injury. However, it is possible for that to differ in certain circumstances and specific advice should be obtained where any doubt arises.
3 The letter of claim provisions in s.8 are cited in cases such as Cahill v. Glenpatrick Spring Water [2018] IEHC 420, Renehan v T & S Taverns [2015] 3 IR 149, Ms G v Mr H [2017] IEHC 449 and Folan v O Corraoin [2011] IEHC 487, but in none of those cases was an adverse inference or refusal to grant costs made in reliance of s. 8.
4 See para. 37 of the judgment. In Doyle v Banville, the accident which was the subject matter of the case had occurred in 2000, which pre-dated the enactment of the Civil Liability and Courts Act 2004, meaning that the provisions of s.8 could not apply.
5 The amendment to s. 8 arises by virtue of s.13 of the Central Bank (National Claims Information Database) Act 2018 (No. 42 of 2018) with effect from 28 January 2019 by Central Bank (National Claims Information Database) Act 2018 (Commencement) Order 2019 (S.I. No. 2 of 2019).
6 Section 14A of the Civil Liability and Courts Act, also inserted by the Central Bank (National Claims Information Database) Act 2018.
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About the Author
Robbie Slattery
Robbie is a partner in the Commercial & Business team at Hayes solicitors. Robbie advises on items such as shareholder agreements, share purchase agreements, joint ventures, business sales and business purchases. Robbie also advises on commercial litigation with a particular focus on high value, multi-party litigation, for corporate clients, State entities, charities and private individuals, both on the Plaintiff and Defence side.