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Troubled waters

29 Apr 2019 / personal injury Print

Troubled waters ahead

The much-vaunted Government programme for insurance reform continues apace and has resulted in well-signposted, but significant, changes to the Civil Liability and Courts Act 2004 and the PIAB Act 2003.

The amendment to section 8 of the Civil Liability and Courts Act changes the obligation to serve a letter from two months to one month, and removes the saver ‘or as soon as practicable thereafter’.

Inference

Most significantly, it now states that the court ‘shall’ rather than ‘may’ draw inferences from a failure to do so.

The new section 8(1) now reads: “Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing before the expiration of one month from the date of the cause of action, on the wrongdoer or alleged wrongdoer, stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action, shall (a) draw such inferences from the failure as appear proper, and (b) where the interests of justice so require (i) make no order as to the payment of costs to the plaintiff or (ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.”

This change came into being on 28 January 2019 and applies to all accidents that occur on or after that date.

The effect of this is to, in fact, make ‘without reasonable cause’ now the most important words in this section.

The sound of silence

New rules of court – because the section now contains a mandatory requirement – state that all personal injuries summonses issued for accidents occurring on or after 28 January 2019, where such a notice has not been served within the one-month period, must provide an explanation as to what ‘reasonable cause’ existed to explain such a failure.

If none is provided, or such explanation is not accepted by the court, then inferences and costs deductions would seem inevitable in most cases.

Of equal importance is the change to section 14 of the 2004 act.

This section currently requires, among other things, that a plaintiff and defendant shall verify all pleadings, and the plaintiff all further information, provided by way of affidavit and lodge the affidavit within 21 days of delivery of such pleading or information.

The new section 14 (4)(a) now mirrors the penalty provisions in section 8 for failure to do so, stating the court shall “draw such inferences from the failure as appear proper and, where the interests of justice so require, make no order as to the payment of costs to the plaintiff, or deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate”.

This change also came into effect on 28 January 2019 and applies to all pleadings and information provided after that date.

Slip slidin' away

The second piece of significant legislation is the PIAB (Amendment) Act 2019, which came into force on 3 April 2019. All practitioners in the area are advised to read it carefully and in full.

Section 51C is a new provision that penalises claimants (and in limited cases respondents) who have not fully cooperated by with the PIAB by providing information or documents to them or their experts in the form of, for example, special damages, further medical information such as MRI scans, and previous injuries or details of all other claims made when requested by assessors.

In addition, failure to attend the PIAB medical examination may also be penalised under the section.

This section does not contain a mandatory requirement in the manner of the above amendments to the 2004 act, but states that, in the event of failure to comply with such requests or attend a medical examination, the court may order that no order as to costs in favour of the offending party may be made or, alternatively, an apportionment of any such costs.

This requirement applies to all applications made under section 11 after 3 April, and all applications made before that, where such requests had not already been made.

Times they are a-changin'

Under section 13, there is no longer a requirement to lodge a medical report with the application form in order to stop the statute from running. The application, of itself, is deemed to suffice for that purpose.

However, the amendment to section 13 now states that a preliminary notice will be served on a respondent in circumstances where only the application form is provided, and the formal section 13 notice that 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.

As a result of Renehan v T&S Taverns (2015 IESC 8), the provisions of section 50 applied to all respondents made under a section 11 application, no matter when they were joined to the application. In other words, the date of the initial application stopped the time for all respondents, even if they were added years later.

Anomaly

This anomaly has now been corrected, so it will now mean that the actual date of joining a new respondent to an application already made will be the date on which the statute stops for the purposes of section 50 of the 2003 act, as opposed to the date of the original application.

Oh, and under section 54, the Book of Quantum must now be reviewed from time to time, and revised at least every three years.

These are the main alterations. Please read the PIAB Amendment Act 2019 in full and be aware of the dangers of the new costs provisions in the 2004 act. It isn’t getting any easier!

 

Stuart Gilhooly
Stuart Gilhooly
Stuart Gilhooly is a personal injuries solicitor and Law Society Past President