The Civil Liability and Courts Act 2004

Scales-of-JusticeThis section applies to Republic of Ireland Claims only

Since July 2004, before any Personal Injury Proceedings can be issued in any Court in the Republic of Ireland, you must first have:

made a valid Application to Injuriesboard.ie (previously known as the Personal Injuries Assessment Board (PIAB)) for compensation which was Registered by PIAB;

obtained either a refusal
(a) by the Respondent to participate in an Injuriesboard.ie Assessment, or
(b) by Injuriesboard.ie to proceed to an Assessment, or
(c) by either the Applicant or the Respondent to accept the amount of an Injuriesboard.ie Assessment

obtained an Authorisation Document from Injuriesboard.ie to issue those proceedings.

The Civil Liability and Courts Act 2004 (“the Act”) was signed into law on 21 July 2004.
The relevant sections of the Act are as follows:

Section 8 (Letter of Claim)

A Claimant in a personal injuries action must now issue a notice providing details of the nature of the wrong alleged to a Respondent within two months of the date of the cause of action or as soon as practicable thereafter.  Failure to do so, without reasonable cause, may have implications including costs.  The notice must be served by registered post, in person or by leaving it personally at the address of the Respondent.  (Service is governed by Section 4 of the Act). There is no obligation to serve by ordinary post, although this would be sensible in case the registered letter was later returned.  It is also important to note that the notice must state the nature of the wrong, so the letter which is sent out  must provide details of the individual accident.

Section 14 (Verifying Affidavits)

Where either Party (Plaintiff or Defendant) to the Action delivers a Court document which makes “contains assertions or allegations” of fact, he is required to swear a Verifying Affidavit and have that filed Affidavit in the Court Office, swearing as to the accuracy of the assertions and allegations which have been made.

Section 19 (Evidence on Affidavit)

Evidence on affidavit shall be given in any matter where the court directs – although the right to cross-examine remains.

Section 22 (Book of Quantum)

The court shall have regard to the Injuriesboard.ie Book of Quantum when assessing damages although it may take into account other matters.

Section 25 (False Evidence)

This creates an offence for anyone to knowingly give false or misleading material evidence in a personal injuries action or to a solicitor, or person acting on behalf of a solicitor, or an expert, if done with the intention of misleading the court.  This section applies to all actions, either in being, pending or yet to be commenced, where the offence is committed after 20 September 2004.

Section 26 (Fraudulent Actions)

LAWIf a Plaintiff, in any action after 20 September 2004, knowingly gives false or misleading material evidence (or swears a false and misleading verifying affidavit) then the court shall dismiss the Plaintiff’s claim unless this would result in an injustice being done.  Again, it must be done with the intention of misleading the court.

The most important section is Section 7 which reduces the Statute of Limitations for personal injury claims, including medical negligence claims, to two years.

Serious changes have been brought into Irish law by the provisions of the Civil Liability Act 2004. We can only stress to you the importance of giving fully accurate instructions and information to us and to every person that you have dealings with at all stages in the course of this Action, including any medical persons or engineers or other advisors, whether they have been engaged on your behalf or even by the opposing side in this case.

The Criminal consequences of such conduct which result from being convicted of such an offence are set out in Section 29 of the Civil liability Act 2004:-

(1) upon conviction on indictment in the Circuit Court, you can receive a fine not exceeding €100,000, or imprisonment for a term not exceeding 10 years, or to both; or

(2) upon summary conviction in the District Court, you can receive a fine not exceeding €3,000, or imprisonment for a term not exceeding 12 months, or to both.

In addition to your action being permanently dismissed, such dismissal will normally see you being left liable to pay not only all of your own costs, fees and expenses in relation to the legal action, but also all costs, fees and expenses of all parties to the case against whom your action was dismissed, which is a further very severe sanction.

In those circumstances, it makes sense to instruct a Solicitor prior to undertaking a Claim for Personal Injuries when seeking compensation, to make sure you do not fall foul of the penal provisions of this Statute.

For more information on this subject, please refer to our article Personal Injuries Accident Claims and PIAB – Do you need a Solicitor anymore?

Verifying Affidavits and Respondent Employers

The new procedures set much tighter time limits. Within two months of an accident or of becoming aware of a cause of action (an illness), a Plaintiff must notify the alleged wrongdoer (potential Defendant) of the claim and within two years he/she must institute proceedings. As soon as the injured person has been looked after – the circumstances of the accident must be investigated thoroughly.

Insurers should be contacted immediately and they should get their investigators on the scene without delay. If it is decided that experts, such as engineers, should be consulted, this should be done quickly. If there are legal issues to be decided upon, solicitors should be consulted.

Employers facing claims must work within the two-month ‘letter of claim’ timeframe. As soon as the ‘letter of claim’ arrives, they must be in a position to respond. They may be agreeable to settle the claim, they may be agreeable to its being referred to the PIAB, or they may want to defend it. To make the correct decision, they need to be clear on the issue of liability.

Verifying affidavits: A Word of Caution for the Respondent Employer

ContractA lot of attention has been drawn to the requirement for plaintiffs to swear Verifying Affidavits, in which they swear to the truth of facts alleged in court documents. The fact is that Defendants will also have to swear Verifying Affidavits. The penalties for swearing false Affidavits are the same for plaintiffs and Defendants.

What tends to be overlooked in the comments on Verifying Affidavits is that plaintiffs will be swearing Affidavits from facts within their own knowledge. The safety manager or company secretary – or whomsoever it may be from the Defendant organisation who is swearing the Verifying Affidavit – will be swearing to the truth of facts, not all of which may be within his/her own knowledge.

Whether the safety manager or some other person is swearing the Verifying Affidavit, the fact is that in most organisations, the safety manager will be responsible for gathering the information that goes into the Verifying Affidavit. If it is wrong, they will be held responsible. Because of this, two points arise. One is that safety mangers need to ensure that accident investigations are thorough and that all the facts which have been gathered, stand up to critical scrutiny. Secondly, they need to ensure that any facts not within their own knowledge are true.

They need to ensure that the Affidavit should be drafted to make clear which facts are within their own knowledge and which are not. Insisting on this may cause some problems, but whoever is swearing the affidavit needs to remember that he/she is the person facing penalties (a fine of up to €100,000 and/or up to 10 years in jail).

Also, even though the new procedures will result in speedier litigation, Verifying Affidavits will be sworn many months, if in fact not more than a year, after the accident giving rise to the claim.

In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.