THE COMMITTEE ON
COURT PRACTICE AND PROCEDURE
29TH REPORT
INQUIRY TO EXAMINE ALL ASPECTS OF
PRACTICE AND PROCEDURE RELATING
TO PERSONAL INJURIES LITIGATION
JUNE, 2004
2
29th
INTERIM REPORT
OF
THE COMMITTEE
ON
COURT PRACTICE AND PROCEDURE
TO
MR. MICHAEL McDOWELL, S.C., T.D.,
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUNE, 2004
3
INDEX
PAGE
Chapter 1 Introduction
1.1. Terms of Reference
1.2. Members of the Committee
1.3. Topic
1.4. Specific questions the Committee was requested to consider
1.5. Submissions
Chapter 2 The current procedure in personal injuries actions
2.1. Starting a personal injuries action
2.2. Procedure in the High Court
2.2.1 Plenary summons
2.2.2 Service
2.2.3 Appearance
2.2.4 Application to join a third party
2.2.5 Statement of claim
2.2.6 Defence
2.2.7 Reply
2.2.8 Notice for particulars
2.2.9 Notice of further particulars of injury
2.2.10 Notices for judgment in default
2.2.11 Notice of trial
2.2.12 Settlements and lodgments
2.2.13 Discovery
2.2.14 Expert reports
2.2.15 Remittal of action
2.2.16 Trial
2.2.17 Appeals
2.3. Procedure in the Circuit Court
2.3.1 Issuing and serving proceedings, joining a third party
2.3.2 Appearance and defence
2.3.3 Notice for particulars
2.3.4 Defence and counterclaim
2.3.5 Third parties, notice for particulars, reply
2.3.6 Discovery
2.3.7 Settlements and lodgments
2.3.8 Notice of trial
2.3.9 Remittal and transfer of the action
2.3.10 Trial and appeal
2.4. Procedure in the District Court
2.4.1 Issuing and serving proceedings
2.4.2 Defence, lodgment and counterclaim
2.4.3 Other applications
2.4.4 Transfer of the action
2.4.5 Appeal
Chapter 3 Problems in the system
3.1. Problems as perceived by those making submissions to the Committee
3.2. Problems in the system identified by the Committee
Chapter 4 Statistics
4.1.
4.2.
4.3. The High Court
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4.3.1 High Court – statistics on personal injuries
4.3.2 Table 2 – volume of cases set down
4.3.3 Fixing a date for hearing
4.3.4 Awards of damages
4.4. The Circuit Court
4.4.1 Level of awards in the Circuit Court
4.4.2 Dublin Circuit Court
4.4.3 Provincial Circuit Courts
4.4.4 All Circuit Courts
4.5. Statistics from the District Court
Chapter 5 Litigating personal injuries claims: issues and solutions
5.1. Proposed procedural changes
5.2. Revised statutory limitation periods
5.3. New approach
5.4. Committee proposals for new practice and procedure
5.5. Immediate, clear, detailed and unambiguous pleading
5.6. New forms of documents – The High Court
5.6.1. Personal injuries summons
5.6.2. Defence
5.6.3. Reply
5.6.4. Pleadings generally
5.7. Exchanges of final offer
5.8. More practical and less flexible time limits
5.9. Case management by the courts
5.10. Questionnaire
5.11. Case management conference
5.12. Sanctions to discourage false or misleading evidence
5.13. Disclosure
5.14. Allocation of judges, court officials and resources
5.15. Draft rules
5.16. Personal injuries actions in the Circuit Court
5.17. Personal injuries actions in the District Court
Chapter 6 Costs
6.1. The cost of litigating personal injuries actions
6.2. No foal, no fee
6.3. No incentive to keep costs down
6.4. Tax
6.5. High level of costs in England and Wales
6.6. Transparency in the cost system
6.7. Information on the costs of litigating
6.8. Taxed Bills of cost
6.9. Taxation of costs
6.10. Judicial ruling
6.11. Increasing use of experts
6.12. Section 68 Solicitors (Amendment) Act, 1994
6.13. Recommendations
Chapter 7 Information on awards of general damages
7.1. A judicial decision
7.2. Other jurisdictions
7.2.1 England
7.2.2 Northern Ireland
7.2.3 Australia
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7.2.4 New Zealand
7.2.5 Canada
7.2.6 The United States
7.3. Conclusions
7.4. Recommendations
Chapter 8 Resources
Chapter 9 Conclusion
Chapter 10 Recommendations
Appendix A – Advertisement inviting written submissions
Appendix B – Written submissions made to the Committee
Appendix C – Oral submissions made to the Committee
Appendix D – Draft rules for proposed procedural changes in High Court
Appendix E No. 1 – Draft Personal Injuries Summons
Appendix E No. 2 – Draft Affidavit of Verification
Appendix E No. 3 – Draft Case Management Questionnaire
Appendix F – Rules for proposed procedural changes in Circuit Court
Appendix G – Draft rules for proposed procedural changes in District Court
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CHAPTER 1
INTRODUCTION
1.1.
Terms of Reference
1.1.1 The Committee on Court Practice and Procedure was appointed by the Minister for
Justice on April 13, 1962 with the following terms of reference:
“(a) To inquire into the operation of the courts and to consider whether the
cost of litigation could be reduced and the convenience of the public and the
efficient dispatch of civil and criminal business more effectively secured by
amending the law in relation to the jurisdiction of the various courts and by
making changes, by legislation or otherwise, in practice and procedure:
(b)
to consider whether, and if so, to what extent, the existing right to jury
trial in civil actions should be abolished or modified;
(c)
to make interim reports on any matter or matters arising out of the
Committee’s terms of reference as may from time to time appear to the
Committee to merit immediate attention or to warrant separate treatment.”
1.1.2 By warrant of the Minister for Justice dated July 19, 1973 the foregoing terms of
reference were extended by the addition of the following subhead:
“(d) To make recommendations on such matters (including matters of
substantive law) as the Minister for Justice may from time to time request the
Committee to examine.”
7
1.2.
MEMBERS OF THE COMMITTEE
The Hon. Mrs. Justice Susan Denham – Chairperson
The Hon Mr. Justice John Quirke, The High Court
The Hon. Ms. Justice Finlay Geoghegan, The High Court
The Hon. Mr. Justice Esmond Smyth, President of the Circuit Court
His Hon. Judge Peter Smithwick, President of the District Court
Mr. Richard L. Nesbitt S.C.
Mr. Gerard Hogan S.C.
Mr. John Fitzpatrick, Solicitor
Ms. Ann C. Walsh, Solicitor
Mr. Peter Kelly F.C.A.
Mr. Joseph McPeake
Ms. Marian McGennis
Mr. John O’Leary
Mr. Peter Kavanagh, Secretary
8
1.3.
TOPIC
The Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, S.C., T.D.,
requested the Committee to examine all aspects of practice and procedure relating to personal
injuries litigation and consider whether the present system of practice and pleadings is
appropriate to modern personal injuries litigation.
1.4.
Specific questions which the Committee was requested to consider include:
Whether the plaintiff should be required to swear an affidavit verifying the facts relied
on to ground any claims against the defendant;

The extent to which a defendant should be required to put forward an affirmative
defence which does not simply traverse the plaintiff’s case and put the plaintiff on
proof;

The extent to which procedures such as Notices for Particulars could be dispensed
with;

Whether and to what extent litigants engaged in making fraudulent and exaggerated
claims should be penalised;

Whether present procedures provide a sufficient encouragement to litigants
(a) to avoid litigation in the first place and
(b) to arrive at an early settlement of any litigation so commenced;

Whether pre-litigation mediation might be made mandatory;

The extent to which standard tariffs for routine injuries could be introduced as a guide
for a judge in order to avoid discrepancies in levels of damages awards.
1.5.

SUBMISSIONS
The Committee placed advertisements in the public press on 19th December, 20021 and
written submissions were received by the Committee2. Oral submissions were presented by a
number of parties3.
1
The text of the public advertisement is set out in Appendix A.
A list of those who submitted written submissions is set out in Appendix B.
3
A list of those who presented oral submissions is set out in Appendix C.
2
9
CHAPTER 2
THE CURRENT PROCEDURE IN PERSONAL INJURIES ACTIONS
2.1.
Starting a Personal Injuries Action
A personal injuries action may be brought in the District Court, the Circuit Court or the High
Court. The pace of pleadings and proceedings in personal injuries litigation is determined
currently by the parties, until the Notice of Trial. Neither the Court, Master or legally
qualified court official case manages this litigation.
The jurisdiction of the District Court is limited to awards of €6,348.69. The jurisdiction of
the Circuit Court is limited to awards not in excess of €38,092.14.4 The jurisdiction of the
High Court is unlimited and it may award any sum of damages. However, in practice the
jurisdiction of the High Court is exercised for actions in excess of €38,092.14.
2.2.
Procedure in the High Court
The current procedure for bringing an action in the High Court is set out in the Rules of the
Superior Courts.5 Before proceedings are issued the solicitor will usually write a letter to the
prospective defendant(s). This letter informs the defendants that proceedings against them
will be instituted unless they admit liability within a certain period (usually 10 days). If the
plaintiff is successful this letter will be used to show that the defendant was offered the
opportunity to avoid the need for litigation had liability been admitted at this early stage and
that therefore the plaintiff should be awarded his costs.
4
Under the Courts and Court Officers Act, 2002 provision is made for an increase in the monetary jurisdiction of
the District and Circuit Courts. Under s.14 the District Court will have jurisdiction up to €20,000 and under s.13
the Circuit Court will have jurisdiction up to €100,000. These sections will only come into force upon the
making of a commencement order by the Minister for Justice.
5
Rules of the Superior Courts, 1986, as amended. (Hereinafter; RSC)
10
2.2.1 Plenary Summons
A plenary summons is used to initiate proceedings in the High Court. This is a short
document which sets out the plaintiff’s claim. The plenary summons is issued in the High
Court Central Office. Issuing a plenary summons stops time running for the purposes of the
Statute of Limitations.
Under the Statute of Limitations, 1957 actions must be commenced within a certain period of
time. In a personal injuries action an injured party has three years from the date the cause of
action accrued, or the date of knowledge that they had sustained a serious injury, if later, to
issue6. If the plaintiff is a minor the three years begin to run once he or she reaches the age of
eighteen7. If the plaintiff is under some other disability, time does not run until the person
ceases to be under that disability. Disability can include disability caused by the accident the
subject matter of the proceedings, and since, 2000, may include psychological injury caused
by sexual abuse8. Proceedings may be issued after the three years have expired but the statute
provides a full defence to them. Therefore, if the defendant omitted to plead the Statute for
some reason, the action could proceed9.
2.2.2 Service
The plaintiff has twelve months from the date the Plenary Summons is issued to serve it on
the defendant, however, if service is not performed within that time an extension may be
granted at the discretion of the court10.
6
Statute of Limitations (Amendment) Act, 1991, s. 11(2)(b)
Statute of Limitations, 1957 s. 48
8
Statute of Limitations, 1957 s. 48A(1) as inserted by Statute of Limitations (Amendment) Act, 2000, s. 2
9
Tuohy v. Courtney [1994] 3 I.R. 1
10
RSC O. 8
7
11
2.2.3 Appearance
A defendant formally acknowledges the proceedings by entering an Appearance. This is a
simple document filed in the Central Office with a copy posted to the plaintiff’s solicitors. It
implies an acceptance of the court’s jurisdiction to hear the case. If a defendant wishes to
contest jurisdiction he may file a Conditional Appearance.
2.2.4 Application to Join a Third Party
Where a defendant feels that he has been wrongly sued and that the injuries were in fact
caused by another party, the defendant will usually ask the plaintiff, at an early stage in the
proceedings, to sue the other person as well or instead. If the plaintiff decides to do so that
person becomes a co-defendant11. If the plaintiff declines to do this, the original defendant
may issue, on notice to the plaintiff, a Third Party Notice 12 to the person he holds responsible,
which sets out facts that he alleges would support his claim that the proposed third party had
contributed to the accident.
2.2.5 Statement of Claim
The next document in a personal injuries action is the Statement of Claim, which sets out the
details of the plaintiff’s claim. It also sets out the reliefs the plaintiff is asking the court to
provide13. It may be amended once without leave14 and at any time with the leave of the
court15.
11
RSC O. 15
RSC O.16
13
RSC O. 20
14
RSC O. 28 r. 2
15
RSC O. 28 r. 1
12
12
Under the Rules of the Superior Courts the Statement of Claim must be received by the
defendant within 21 days of service of the Plenary Summons.16 In practice they are often
served together. If the 21 day limit is breached the plaintiff will ask for permission from the
defendant to file the Statement of Claim late, and if this is refused the plaintiff will have to
ask the court for permission. Again a degree of flexibility is permitted in relation to this time
limit and in general either the defendant or the court will grant such permission and the case
will proceed. A defendant may apply to court to dismiss an action for want of prosecution if
the Statement of Claim is not served in time, however, initially at least it is more likely that
the court will grant an extension of time.
2.2.6 Defence
The defence is filed by the defendant answering the plaintiff’s Statement of Claim. It should
be served within 28 days of delivery of the Statement of Claim or within the time limited for
appearance, whichever is later17. Once again, this time limit is not always strictly adhered to.
Generally the Defence will simply contain a complete denial of everything alleged in the
plaintiff’s Statement of Claim with the result that the plaintiff is put “on proof” of all matters.
The Defence may, however, go further than a mere denial and may advance a different
version of events from that contained in the Statement of Claim or allege contributory
negligence. It is also open to the defendant to file a Defence and Counterclaim18. In the
Counterclaim the defendant may also allege negligence or may make out a cause of action
against the plaintiff.
16
RSC O. 20 r. 2
RSC O. 21 r. 1
18
RSC O. 21 rr. 9-16
17
13
2.2.7 Reply
A reply is filed only if the Defence goes beyond mere denial and makes specific allegations
which the plaintiff wishes to refute19. If the defendant files a Defence and Counterclaim, the
plaintiff would file a Reply and Defence to Counterclaim. The Defence to Counterclaim is
similar to an ordinary Defence.
2.2.8 Notice for Particulars
A notice for particulars is commonly used in personal injuries actions in the High Court but
does not officially form part of the pleadings. It is used by either party to elicit further
information from the other side which may be necessary to define or clarify the issues in the
action.
2.2.9 Notice of Further Particulars of Injury
Notice of further particulars of injury are issued by the plaintiff (or defendant if they are
making a counterclaim for a personal injury) where the treatment and/or recovery for their
injuries is ongoing and there is a necessity to update the particulars of personal injuries which
were set out in the Statement of Claim.
2.2.10 Notices for Judgment in Default
At each point in the exchange of pleadings it is open to the parties to apply for Judgment in
Default in order to move things along. For example, if a Defence is not forthcoming the
plaintiff might issue a Notice for Motion in Default of Defence. Equally, if the plaintiff is a
source of delay the defendant may apply to court. Where the plaintiff’s statement of claim is
not forthcoming the defendant may apply to the court to have the action dismissed.20
19
20
RSC O. 23
RSC O.27 r. 1
14
2.2.11 Notice of Trial
Once all the pleadings have been served a Notice of Trial will be issued in the Central Office.
This document informs the other side that the matter is ready to go forward to trial; it must be
served within six weeks of the close of pleadings by the plaintiff; otherwise the defendant
may give Notice of Trial without requiring a court order. The defendant might adopt this
course of action where it is felt that the plaintiff is delaying the case. Twenty-one days notice
of trial must be given21. Within fourteen days of the service of Notice of Trial the case must
be set down for trial i.e. an actual trial date must be obtained. If the other side feels that the
case is not in fact ready for trial they may apply to court to have the Notice set aside; a
Motion to set aside a Notice of Trial should be brought within four days after service of the
Notice complained of22.
2.2.12 Settlements and Lodgments
At any time in the course of litigation it is open to the parties to decide between themselves to
settle the action. Settlement meetings are a common feature, especially in the later stages of
an action.
Where the parties have met but no settlement is reached it is not unusual for the defendant to
make a Lodgment23. The defendant pays into court a sum which it is offering in settlement of
the action. The Lodgment is notified to the plaintiff and the plaintiff has 14 days to “take up”
the Lodgment if he wishes. A plaintiff may also “take up” the Lodgment after the time limit
has expired with the defendant’s permission. If the plaintiff decides to accept the Lodgment,
his acceptance will constitute a settlement of the claim.
21
RSC O. 36 rr. 12 and 16
RSC O. 36, r. 3
23
RSC O. 22 as amended.
22
15
If the case goes to trial and the plaintiff fails to “beat the Lodgment” i.e. the award made by
the court is less than the sum lodged, the plaintiff is liable to pay the defendant’s legal costs
incurred after the date on which the Lodgment was made. The judge at the trial will have no
knowledge of the existence or amount of the Lodgment. The Lodgement demonstrates that
there was a serious offer which the plaintiff ignored, unnecessarily prolonging the case and
the costs. The sanction of having to pay this portion of the defendant’s costs is a serious one
and the Lodgment is a powerful tool available to defendants to induce settlement. The rules
contain limitations on when it is open to defendants to make or increase a Lodgment 24, but a
defendant may apply to court for permission to make a Lodgment outside of the time frames
laid down in the rules.25
2.2.13 Discovery
Once the defence (and any counterclaim the defendant might make) has been delivered, the
pleadings in the action have closed. Before the case goes to trial several other procedural
applications known as “interlocutory applications” may be made. Either side may make an
application to the court for Discovery26. The party seeking Discovery first writes a letter
setting out exactly what documents and information they are seeking, and asks the other side
to make what is known as voluntary Discovery. The letter must furnish reasons why these
documents are necessary to the case. If the other side decline to do so an application may be
made to court to ask the court to require Discovery to be made.
2.2.14 Expert Reports
Personal injuries litigation generates a large volume of medical and other reports. Both sides
may commission medical reports, engineer’s reports and others to help them make out their
24
RSC O. 22 rr.1(7), 1(9), 1(10) and 7(1)
State bodies which are defendants are permitted to make a Tender, which is essentially the same as a
Lodgment except that the monies are not actually lodged in court, RSC O. 22 (SI No. 328 of 2000)
26
RSC O. 31
25
16
case. Rehabilitation reports may be commissioned to help project the impact of the alleged
injuries on the plaintiff’s future earnings and lifestyle. A recent change to the rules of court
provides for the disclosure of some of these reports (in High Court cases only) to the other
side27. Again, the intent is to simplify and speed up litigation. One month after service of the
Notice of Trial, the plaintiff is obliged to serve a schedule on all other parties to the action
listing all expert reports28 that they intend to call at trial. Seven days later the defendant must
produce a similar list. Seven days after that, there should be a mutual exchange of reports. A
degree of flexibility is tolerated by the courts and this time frame can be changed by
agreement or at the discretion of the court.
2.2.15 Remittal of Action
Any party to an action may apply to the court to have a case remitted (transferred) to the
Circuit Court, before commencement of the trial29. In these circumstances the Circuit court
has jurisdiction to award damages without limit30. However it is unusual for the Circuit Court
to do so and it will usually award damages within its jurisdictional limits. The application to
remit may be made by either side. A defendant will usually consent to the plaintiff having the
action remitted to a lower court since the award of damages is likely (though not guaranteed)
to be lower.
2.2.16 Trial
Personal injuries actions in the High Court are heard by a judge sitting alone with no jury.31
Cases are heard at the Four Courts, Dublin, most of the time but the High Court also hears
27
RSC O. 39 rr. 45-51 as inserted by the Rules of the Superior Courts (No. 6) (Disclosure of Reports and
Statements) 1998 (SI No. 391 of 1998).
28
Listed in the Rules as: a report or statement from accountants, actuaries, architects, dentists, doctors,
engineers, occupational therapists, psychologists, psychiatrists, scientists or any other expert whatsoever
intended to be called.
29
Courts Act 1991 s. 15, Courts of Justice Act 1924, s. 25.
30
Courts of Justice Act, 1936, s. 20 as amended by the Courts Act, 1991, s. 2(3)(a).
31
Juries in personal injuries actions were abolished in 1988.
17
personal injuries actions during certain weeks in Cork, Limerick, Galway, Sligo, Waterford,
Dundalk, Ennis and Kilkenny.
2.2.17 Appeals
In High Court cases an appeal lies to the Supreme Court on a point of law only.32 This is not
a full re-hearing of the case. The Supreme Court is provided with a transcript of the evidence
taken at the trial in the High Court. If the Supreme Court decides as a matter of law that the
decision of the High Court on liability for the accident was wrong, the Supreme Court may
order a re-trial of the action in the High Court. If the finding is that the damages awarded
were excessively high, the Supreme Court may remit the case to the High Court but has an
inherent jurisdiction to assess the correct level of damages itself, if it wishes33.
2.3.
Procedure in the Circuit Court
The procedure for bringing a personal injuries action in the Circuit Court is set out in the
Circuit Court Rules, 2001.34 Ordinarily, the Circuit Court has jurisdiction to make awards up
to €38, 092.14. If the plaintiff fails to receive an award above District Court level, i.e. above
€6,348.69, the plaintiff may face the imposition of a cost penalty by reason of the fact that the
case should more appropriately have been taken in the lower court. Where both parties
consent in writing the Circuit Court may hear an action worth more than €38, 092.14. This
consent may be lodged at any time prior to the final determination of the proceedings.
2.3.1 Issuing and Serving Proceedings, Joining a Third Party
In the Circuit Court, a personal injuries action is commenced by an Ordinary Civil Bill, which
is issued and served upon the prospective defendant. Essentially the Ordinary Civil Bill
performs the same functions as both the Plenary Summons and the Statement of Claim in the
32
The procedure for appeals to the Supreme Court is set out in RSC O. 58
Holohan v. Donohoe [1986] I.R. 45.
34
Circuit Court Rules (SI 510 of 2000), hereinafter CCR, 2001
33
18
High Court. It names the parties to the action, their occupations and place of residence or
business. The Civil Bill also contains the particulars and grounds of the plaintiff’s action and
the particulars of special damage being claimed.35 These are contained in the Indorsement of
Claim. The Circuit Court may grant leave to the defendant to join a third party to the action. 36
2.3.2 Appearance and Defence
Once the Civil Bill has been issued and served, the defendant has 10 days from the date of
service of the Civil Bill within which to enter an Appearance. Once an Appearance has been
entered, the defendant will have 10 days from the date of the entrance of the Appearance to
enter a Defence.
2.3.3 Notice for Particulars
As in the High Court, it is possible for the defendant to raise a Notice for Particulars of the
plaintiff’s claim.37 Unlike proceedings in the High Court, a Notice for Particulars and a Reply
to such a Notice for Particulars in a Circuit Court action have the status of pleadings under the
Circuit Court Rules, with the result that the parties are bound by the contents of these
documents and may not adduce evidence going beyond the matters contained in the
particulars in the trial of the action.
2.3.4 Defence and Counterclaim
In general the Defence will simply contain a denial of every allegation made in the plaintiff’s
Indorsement of Claim; the practical effect is that the plaintiff is put on proof of the allegation.
It is also open to the defendant to file a Counterclaim against the plaintiff in respect of the
incident leading to the personal injury.
35
O.5 r.5 CCR, 2001
O. 7 r.1 CCR, 2001
37
O. 17 rr 3,4 CCR, 2001
36
19
2.3.5 Third Parties, Notice for Further Particulars, Reply
There is provision for the joining of Third Parties in the Circuit Court. Also, there is
provision for Notices of Further Particulars of Injury. It is also open to a party to deliver a
Reply.
2.3.6 Discovery
The parties in a Circuit Court action may seek Discovery. In doing so a party must first seek
Voluntary Discovery by means of a letter requesting discovery and identifying the documents
sought.38 Unlike the discovery procedure in High Court actions, there is no need to set out the
grounds as to why discovery is necessary to the fair disposal of the action.
2.3.7 Settlements and Lodgments
As in the High Court the parties are entitled to settle the action at any time during the
proceedings. As an alternative to a settlement the defendant may choose to make a Lodgment
in court.39
2.3.8 Notice of Trial
An action can be set down by a plaintiff or in default by a defendant. Dates for hearing are
assigned by the office in Dublin Circuit. There are variations in other Circuits where actions
are usually set down for a particular sitting and called over before the County Registrar.
2.3.9 Remittal and Transfer of the Action
Under s. 15 of the Courts Act, 1991, the Circuit Court may remit an action to the District
Court on the application of either party before the trial of the action commences if the judge
considers that “the action is fit to be prosecuted in the District Court”. It is also possible for an
38
39
O 32, CCR, 2001 governs applications for discovery in the Circuit Court.
O 15, CCR, 2001
20
action to be transferred to the High Court. Section 22(8)(a) of the Courts (Supplemental
Provisions) Act, 1961 provides that any interested party may apply to the Circuit Court before
whom an action has been commenced to have the action forwarded to the High Court if the
judge is of the opinion that the action is one fit to be tried in the High Court and the High
Court appears to be the more appropriate court of trial in the circumstances.
2.3.10 Trial and Appeal
As in the High Court a personal injuries action in the Circuit Court is determined by a judge
sitting alone without a jury. The same burden of proof and evidential rules apply in the Circuit
Court. A right of appeal lies from a decision of the Circuit Court to the High Court, this
appeal will be a full re-hearing of the case.40 Appeals from non-Dublin Circuit Court cases
are, in general, heard by the High Court on Circuit, while appeals from Dublin Circuit Court
cases are heard by the High Court sitting in Dublin. There is no right of appeal from the High
Court decision on a Circuit Court appeal but the High Court may refer a question of law to the
Supreme Court if the judge “so thinks proper”.41 The Circuit Court may also appeal directly
to the Supreme Court on a point of law by way of a “case stated”.42
2.4.
Procedure in the District Court
The procedure for bringing a civil action in the District Court is set out in the District Court
Rules, 1997.43 The District Court has jurisdiction to hear and determine personal injury
actions where the claim does not exceed €6,348.69. Where the parties consent the District
Court may hear and determine actions above this limit.44 The District is a court of limited and
local jurisdiction and proceedings must be issued in the correct District. An action will be
heard at a sitting of the District Court in the district court area where the defendant ordinarily
40
Courts of Justice Act, 1936, s.36 as carried forward by the Courts (Supplemental Provisions) Act, 1961
Courts of Justice Act, 1936, s.38(3)
42
Courts of Justice Act 1947, s.16
43
District Court Rules, 1997 (SI 93 of 1997), hereinafter DCR, 1997.
44
Courts Act, 1991, s.4 (c)
41
21
resides or carries on any profession, business or occupation or, at the election of the plaintiff,
in the District Court Area where the personal injuries are alleged to have taken place.45
2.4.1 Issuing and Serving Proceedings
Civil proceedings in the District Court are instituted by the issue and service upon each
defendant of a Civil Summons. The Civil Summons names the parties, their occupation and
residence and sets out concisely the nature of and grounds for the plaintiff’s claim. 46 The
summons contains a detachable Notice of Intention to Defend and sets out the fact that if the
defendant pays the amount claimed and the costs within ten days all further proceedings will
be stayed; alternatively the defendant may admit the claim but require further time for
payment. The summons is issued by the District Court Office. The Statute of Limitations
applies, time ceases to run, when the summons is served on the defendant.
The Civil Summons will specify a date and sitting of the District Court upon which the matter
is to be returned to court. Service must be effected at least 14 days before this return date, or
21 days before the return date where service is effected by registered post. In order to ease the
number of civil summonses coming before the Court a Judge may limit the number of
summonses returnable to the Court.47
2.4.2 Defence, Lodgment and Counterclaim
A defendant who intends to defend a Civil Summons must give notice of his intention to do
so not later than four days before the return date of the court, this may be extended with the
consent of the plaintiff or with the leave of the court. The defendant may make a Lodgment
either with or separate from the Notice to Defend. The plaintiff may accept the Lodgment at
any time before the day fixed for hearing. As in the Circuit Court and High Court, the plaintiff
45
O.39 r. 1, DCR, 1997
O. 39 r. 4 DCR, 1997
47
O. 39 r. 7 DCR, 1997
46
22
will be liable for all costs incurred after the Lodgment was made if he does not obtain an
award higher than the Lodgment at trial.
If the defendant decides to make a Counterclaim he must do so as soon as possible after the
civil summons is served and at least four days before the return date. An application may be
made to Court to extend this time limit.
2.4.3 Other Applications
A defendant in a District Court action may decide to join a third party to the action. 48
Although there is no provision for Discovery in the District Court, the Court may order
further and better particulars of any matter and in the case of failure to comply with the order
can adjourn or even dismiss the case.49
2.4.4 Transfer of the Action
Under s.22 of the Courts (Supplemental Provisions) Act, 196150 an action may be forwarded
to the Circuit Court or the High Court by a District Court judge if the case is fit to be tried in
the Circuit Court or the High Court, as the case may be, and if the Circuit Court or the High
Court is a more appropriate tribunal in the circumstances.
2.4.5 Appeal
The decision of the District Court judge may be appealed to the Circuit Court, in which case
the decision of the Circuit Court is final and not appealable to the High Court. The Circuit
Court appeal will be a full re-hearing of the case. The opinion of the High Court on a question
of law may be sought by the District Court by way of a case stated51. This may be done before
48
O. 42 DCR, 1997
O.40 r.3 DCR, 1997
50
as inserted by s.21 of the Courts Act, 1971
51
Courts (Supplemental Provisions) Act, 1961, ss51 & 52
49
23
the determination of the case on a consultative basis or after decision on an appeal by way of
case stated.
24
CHAPTER 3
PROBLEMS IN THE SYSTEM
3.1.
Problems in the system as perceived by those making submissions to the
Committee
In submissions to the Committee problems were perceived in the current system.
Submissions to the Committee referred to the following matters:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
The Court Rules are not sufficiently enforced to ensure that parties comply with
necessary procedures for advancing cases to early settlement or trial;
The Court Rules on personal injuries litigation are reviewed too infrequently and there
is a lack of consultation with interested bodies;
Once a Civil Bill or Plenary Summons has been issued the plaintiff has control of the
pace of litigation until a hearing date is given, resulting in delays and an escalation of
costs;
It is left to the parties to decide if and when any pre-trial meetings for negotiation of
settlement or otherwise takes place, leading to unnecessary wasting of court time and
additional expense being incurred by the paying party;
The need for the parties to apply to have the Court Rules on time limits (as regards the
lodging of pleadings by the plaintiff and submission of defence by the defendant)
enforced results in delays;
The letter of claim is, in most cases, lacking in any real detail;
There is often inadequate detail in the pleadings (resulting in more time and effort
being required to progress cases) and admission of further details are generally
allowed by the court, which could be remedied through strict rules regarding accuracy
and the late introduction of additional particulars;
There are considerable delays in progressing the pleadings from Civil Bill / Statement
of Claim stage through to Defence and onto Notice of Trial; the prescribed time limits
for filing of documentation are often inappropriate and are not adhered to and the
procedures for ensuring compliance are slow and cumbersome;
There is a lack of pressure placed by the Courts on plaintiffs to progress cases to
hearing;
There are insufficient sittings of the High Court on circuit;
Current court rules result in offers of settlement being less effective than they could be
and the lodgement procedure is over-complex;
There is an absence of judicially approved actuarial tables which would facilitate the
calculation of damages and reduce the need for actuarial evidence in court;
There is a lack of consistency in awards;
There are inadequate provisions for experts to give evidence by way of video link;
The need to pay costs on a party and party basis for experts is submitted to be
unnecessary;
The need for experts such as doctors, engineers, nursing experts, architects and
vocational rehabilitational consultants to attend trial increases costs;
The current rules on the admission of the contents of experts reports are inappropriate
and should be amended to provide for their admission by the other side without proof
at trial, subject to conditions;
25
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(38)
(39)
(40)
(41)
(42)
(43)
(44)
(45)
(46)
(47)
The current time-limits for serving notices to admit and admitting facts and documents
are too short and need to be revised to allow meaningful responses to be given to such
notices;
Current procedure on the admission of facts in documents is inefficient and should be
revised to require all parties to make admissions of matters and documents that should
not be disputed;
The Discovery process can be slow, cumbersome and expensive;
Court rules result in excessive cost in making discovery;
It is currently too difficult to strike out unmeritorious claims or defences;
The rules and procedures for taxation of costs need to be modernised;
The Courts are inadequately funded leading to inefficiencies and higher costs in
litigation;
There is inconsistency between Courts regarding the initiation of legal proceedings;
Tenders can be made at limited times, depending on the present position of the case.
The rules also vary between the High and Circuit Courts;
Although S.I. 391/1998 is a step in the right direction, it applies at a late stage when
the pleadings are closed and is still subject to the attitude of the Court to the
introduction of late particulars;
It is often the case that a judge is unavailable to hear a case listed on a particular day;
Court sitting times are too short;
The penalties are inconsistent for cases brought in the wrong court;
There is no scale of fees applicable in the Circuit or High Court;
The Rules of Court are too complex for the understanding of the litigant, necessitating
the presence of a lawyer where this would otherwise not be necessary;
There is a lack of consistency in awards;
The transfer of a case from the Circuit Court to the High Court uses up too much court
time and costs the plaintiff too much;
Court orders need to be enforced where time limits have not been strictly complied
with;
The system of filing a motion in default of defence may be abused by plaintiff
solicitors who use motions to enhance their costs rather than deal with the defendant’s
failure to respond in the first instance;
The use of different sets of rules for cases of a particular category in different
jurisdictions is a problem;
There is a significant operational difference between the factual allegations in the
formal pleadings on the one hand, and the particulars on the other. The latter can be
amended or extended at any stage without leave of the Court and usually without
penalty whereas the former can only be amended on application to the Court and after
judicial consideration of the nature of the prejudice thereby occasioned to the
opposing party;
Counsels’ opening and closing submissions are not recorded in the transcripts;
The whole of a quoted part of a document is not recorded in the transcript;
Exhibits are not numbered;
There is insufficient flexibility in the making of lodgements;
Orders for costs are not made on each application, but rather are reserved or are
directed to be costs in the cause (the courts should avoid this unless it is not possible
to fairly adjudicate on the costs on the basis of the interlocutory application);
Courts are too reluctant to enter judgment in default of pleadings where the party in
default has been given a fair opportunity of entering the relevant pleadings;
There is no agreement on a common book of authorities;
Pleadings are insufficiently clear, concise and specific;
The period for service of an originating summons is too long;
26
(48)
(50)
The time limits for production of discovery documents for inspection, and/ or for the
production of copy documents are unrealistic;
The present procedures do not encourage litigants to avoid litigation and/or settle their
claims at an early stage;
There is insufficient use of Information Technology.
3.2.
Problems in the system identified by the Committee
(1)
(2)
The costs of personal injury litigation is a matter of concern.
A culture has developed in which claimants perceive that the institution of court
proceedings will enhance the status of their claim and increase its value.
There is no sense of urgency in the initial processing of personal injury actions.
There are little or no incentives to settle an appropriate claim at an early stage.
Procedures are used which prolong court proceedings and increase the cost of the
action.
Rules of Court are not adhered to or strictly enforced.
The lack of case management leaves the parties in control of the pace of the litigation.
There is insufficient detail in the pleadings.
There are delays in bringing the pleadings to a close.
There are no incentives to the parties to bring an action to trial with reasonable
expedition.
There is an absence of recorded data on the level of the awards of general damages.
There is little use of videoconferencing technology to obtain evidence, expert and
otherwise.
There is room for further development of I.T. in the case management of personal
injury pleadings, in the trial of personal injuries actions, in the obtaining and analysing
of statistics on personal injuries.
There is an under development of case management and a lack of sufficient
appropriate officers such as Masters and legally qualified Court Officials.
The current time limits for the serving of pleadings are unrealistic and consequently
cause expense in the seeking of an extension of time.
The discovery process is in need of revision.
(49)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
27
CHAPTER 4
STATISTICS
4.1.
The Committee sought statistics on personal injuries actions in the High Court.
However, this proved difficult as, until recently, court records were kept manually and
extracting information from such a system is very difficult. It is anticipated that in the future,
because of the development of information technology in the courts, more information and
statistics will be available.
Such statistics as the Committee has obtained paint only part of the picture. However, it is
useful in attempting to analyse the situation. The Committee is grateful to the Courts Service
for the statistics, many of the figures were retrieved manually from the records.
A caveat must be entered in considering these statistics, in that a great number of cases are
listed each day in the High and Circuit Courts which are settled and the only order made is a
consent order striking out the proceedings and possibly an order for the plaintiff’s costs. The
court is not told whether a sum is being paid in settlement of the claim and if so how much.
The catalyst for the settlement is the listing of the case for hearing.
4.2.
The statistics illustrate the volume of cases, their dispersal and the time within which
they are determined. Information is also provided on the level of awards.
4.3.
The High Court
Tables are provided which display the statistics. In relation to the High Court there are the
following tables:
28
Table 1.a.
High Court setting down statistics 2000
Table 1.b.
High Court setting down statistics 2001
Table 1.c.
High Court setting down statistics 2002
Table 1.d.
High Court setting down statistics 2003 (to 30/09/03)
Table 2.
Volume of personal injury litigation in the High Court.
Table 3.
High Court level of awards (October to December, 2002)
4.3.1. High Court – Statistics on Personal Injuries
Tables 1.a, b, c and d, show the cases set down for trial in the years 2000, 2001, 2002 and the
first nine months of 2003. The pattern of setting down for hearing is similar over the four
tables with the greatest number, of about 44% of cases, being set down for hearing within one
year of issue of the summons and 74% within two years. Generally the proportion set down in
succeeding years becomes less and this pattern is similar for all venues.
The court may list cases for hearing only when they have been set down for trial, thus most of
the delay in getting cases to hearing are outside the control of the court in the current system
of practice and procedure.
Once a case is set down for trial, there are no significant delays in Dublin and cases can be
given a date for hearing within weeks of setting down. However, the hearing may be subject
to the availability of judges.
At venues outside Dublin cases can usually be heard within 3 to 6 months of setting down.
The only exception being Cork where the delay is 2 years.
29
Table 1.a.
THE HIGH COURT
2000 Personal Injury Statistics
Length of Time from Issue of Summons to Setting Down of Case for Trial
Table 1.a.i.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dublin
Number of Cases
1034
942
537
176
82
255
34.2%
31.1%
17.8%
5.8%
2.7%
8.4%
3026
100%
Table 1.a.ii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dundalk
Number of Cases
251
111
36
8
5
26
Percentage
57.4%
25.4%
8.2%
1.8%
1.2%
6.0%
437
100%
Table 1.a.iii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Cork
331
149
82
25
5
76
Number of Cases
Percentage
50.0%
22.3%
12.3%
3.7%
0.7%
11.0%
668
100%
Table 1.a.iv.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Percentage
Waterford
119
95
35
14
7
25
Number of Cases
Percentage
40.5%
32.0%
11.9%
4.7%
2.4%
8.5%
295
100%
30
Table 1.a.v.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Galway
202
139
51
14
8
26
Number of Cases
Percentage
46.0%
31.6%
11.6%
3.0%
1.8%
6.0%
440
100%
Table 1.a.vi.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Limerick
295
142
70
37
13
31
Number of Cases
Percentage
50.2%
24.1%
11.9%
6.3%
2.2%
5.3%
588
100%
Table 1.a.vii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Sligo
Number of Cases
45%
36%
11%
3%
1%
4%
326
100%
Table 1.a.viii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Kilkenny
88
27
13
3
2
12
Number of Cases
Percentage
60.7%
18.6%
9.0%
2.0%
1.4%
8.3%
145
100%
Table 1.a.ix.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Percentage
147
118
36
9
3
13
TOTALS
Number of Cases
2467
1723
860
286
125
464
Percentage
41.7%
29.1%
14.5%
4.8%
2.1%
7.8%
5925
100%
31
Table 1.a. (overall)
Length of Time from Issue of Summons to Setting Down of Case for Trial (2000)
70
60
Percentage No. of Cases
50
40
30
20
10
0
Dublin
Dundalk
Cork
Waterford
Galway
Limerick
Sligo
Kilkenny
Totals
Location
Within 1 year
Between 1 and 2 years
Between 2 and 3 years
Between 3 and 4 years
After 4 years
Table 1.a.ix. (totals)
Length of Time from Issue of Summons to Setting Down of Case for Trial - Totals (2000)
45
41.7
40
Percentage No. of Cases
35
29.1
30
25
20
14.5
15
10
4.8
5
2.1
0
Within 1 year
Between 1 and 2 years
Between 2 and 3 years
Length of Time
Between 3 and 4 years
After 4 years
32
Table 1.b.
THE HIGH COURT
2001 Personal Injury Statistics
Length of Time from Issue of Summons to Setting Down of Case for Trial
Table 1.b.i.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dublin
Number of Cases
1446
1030
465
279
178
133
Percentage
41.0%
29.2%
13.2%
7.9%
5.0%
3.7%
3531
100%
Table 1.b.ii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dundalk
331
137
38
14
7
7
Number of Cases
Percentage
62.0%
25.7%
7.1%
2.6%
1.3%
1.3%
534
100%
Table 1.b.iii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Cork
466
121
32
20
9
24
Number of Cases
Percentage
69.3%
18.0%
4.8%
3.0%
1.3%
3.6%
672
100%
Table 1.b.iv.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Waterford
143
89
21
20
6
13
Number of Cases
Percentage
49.0%
30.5%
7.2%
6.8%
2.0%
4.5%
292
100%
33
Table 1.b.v.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Galway
243
162
60
25
16
17
Number of Cases
Percentage
46.5%
31.0%
11.5%
4.8%
3.0%
3.2%
523
100%
Table 1.b.vi.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Limerick
426
184
40
40
26
8
Number of Cases
Percentage
58.9%
25.4%
5.5%
5.5%
3.6%
1.1%
724
100%
Table 1.b.vii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Sligo
171
104
26
11
9
4
Number of Cases
Percentage
52.6%
32.0%
8.0%
3.4%
2.8%
1.2%
325
100%
Table 1.b.viii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Kilkenny
131
37
16
2
4
5
Number of Cases
Percentage
67.2%
19.0%
8.2%
1.0%
2.0%
2.6%
195
100%
Table 1.b.ix.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
TOTALS
Number of Cases
3357
1864
698
411
255
211
Percentage
49.4%
27.4%
10.3%
6.0%
3.8%
3.1%
6796
100%
34
Table 1.b. (overall)
Length of Time from Issue of Summons to Setting Down of Case for Trial (2001)
80
70
Percentage No. of Cases
60
50
40
30
20
10
0
Cork
Dundalk
Dublin
Waterford
Galway
Totals
Kilkenny
Sligo
Limerick
Location
Within 1 year
Between 1 and 2 years
Between 2 and 3 years
Between 3 and 4 years
After 4 years
Table 1.b.ix. (totals)
Length of Time from Issue of Summons to Setting Down of Case for Trial - Totals (2001)
60
Percentage No. of Cases
50
49.4
40
30
27.4
20
10.3
10
6
3.8
0
Within 1 year
Between 1 and 2 years
Between 2 and 3 years
Length of Time
Between 3 and 4 years
After 4 years
35
Table 1.c.
THE HIGH COURT
2002 Personal Injury Statistics
Length of Time from Issue of Summons to Setting Down of Case for Trial
Table 1.c.i.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dublin
Number of Cases
1414
1277
616
318
403
30
Percentage
34.8%
31.5%
15.2%
7.8%
10.0%
0.7%
4058
100%
Table 1.c.ii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dundalk
243
151
37
16
8
0
Number of Cases
Percentage
53.4%
33.2%
8.1%
3.5%
1.8%
0.0%
455
100%
Table 1.c.iii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Cork
458
136
41
20
16
3
Number of Cases
Percentage
68.0%
20.2%
6.0%
3.0%
2.4%
0.4%
674
100%
Table 1.c.iv.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Waterford
140
90
34
17
12
3
Number of Cases
Percentage
47.3%
30.4%
11.5%
5.8%
4.0%
1.0%
296
100%
36
Table 1.c.v.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Galway
Number of Cases
41%
40%
12%
4%
2%
1%
653
100%
Table 1.c.vi.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Limerick
Number of Cases
441
202
58
13
30
1
Percentage
59.20%
27.10%
7.80%
1.75%
4.00%
0.15%
745
100%
Table 1.c.vii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Sligo
129
84
31
10
9
3
Number of Cases
Percentage
48.5%
31.6%
11.6%
3.8%
3.4%
1.1%
266
100%
Table 1.c.viii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Kilkenny
107
27
8
1
4
0
Number of Cases
Percentage
72.8%
18.4%
5.4%
0.7%
2.7%
0.0%
147
100%
Table 1.c.ix.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Percentage
268
260
80
26
13
6
TOTALS
Number of Cases
3200
2227
905
421
495
46
Percentage
43.9%
30.5%
12.4%
5.8%
6.8%
0.6%
7294
100%
37
Table 1.c. (overall)
Length of Time from Issue of Summons to Setting Down of Case for Trial (2002)
80
70
Percentage No. of Cases
60
50
40
30
20
10
0
Cork
Dundalk
Dublin
Waterford
Galway
Limerick
Totals
Kilkenny
Sligo
Location
Within 1 year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Table 1.c.ix. (totals)
Length of Time from Issue of Summons to Setting Down Case for Trial - Totals (2002)
50
45
43.9
40
Percentage No. of Cases
35
30.5
30
25
20
15
12.45
10
5.8
6.8
5
0
Within 1 year
Between 1 and 2 Years
Between 2 and 3 Years
Length of Time
Between 3 and 4 Years
After 4 Years
38
Table 1.d.
THE HIGH COURT
2003 Personal Injury Statistics
Up to 30th September, 2003
Length of Time from Issue of Summons to Setting Down of Case for Trial
Table 1.d.i.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dublin
946
991
514
249
237
15
Number of Cases
Percentage
32.0%
33.6%
17.4%
8.5%
8.0%
0.5%
2952
100%
Table 1.d.ii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Dundalk
224
132
30
7
5
1
Number of Cases
Percentage
56.15%
33.10%
7.50%
1.75%
1.25%
0.25%
399
100%
Table 1.d.iii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Cork
351
96
30
13
10
2
Number of Cases
Percentage
70.0%
19.0%
6.0%
2.6%
2.0%
0.4%
502
100%
Table 1.d.iv.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Waterford
86
64
31
11
9
0
Number of Cases
Percentage
42.8%
31.8%
15.4%
5.5%
4.5%
0.0%
201
100%
39
Table 1.d.v.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Galway
188
165
66
40
13
1
Number of Cases
Percentage
39.8%
34.9%
13.9%
8.5%
2.7%
0.2%
473
100%
Table 1.d.vi.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Limerick
295
196
59
16
34
0
Number of Cases
Percentage
49.2%
32.6%
9.8%
2.7%
5.7%
0.0%
600
100%
Table 1.d.vii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Sligo
91
118
40
15
13
0
Number of Cases
Percentage
32.9%
42.6%
14.4%
5.4%
4.7%
0.0%
277
100%
Table 1.d.viii.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
Kilkenny
67
42
15
6
0
0
Number of Cases
Percentage
51.5%
32.3%
11.6%
4.6%
0.0%
0.0%
130
100%
Table 1.d.ix.
Length of Time
Within 1 Year
Between 1 and 2 Years
Between 2 and 3 Years
Between 3 and 4 Years
After 4 Years
Error in imputing data
(No year of issue for summons entered)
TOTAL
TOTALS
Number of Cases
2248
1804
785
357
321
19
Percentage
40.6%
32.6%
14.2%
6.5%
5.8%
0.3%
5534
100%
40
Table 1.d. (overall)
Length of Time from Issue of Summons to Setting Down of Case for Trial (2003)
80
70
Percentage No. of Cases
60
50
40
30
20
10
0
Cork
Dundalk
Dublin
Waterford
Galway
Limerick
Totals
Kilkenny
Sligo
Location
Within 1 year
Between 1 and 2 years
Between 2 and 3 years
Between 3 and 4 years
After 4 years
Table 1.d.ix. (totals)
Length of Time from Issue of Summons to Setting Down of Case for Trial - Totals (2003)
45
40.6
40
Percentage No. of Cases
35
32.6
30
25
20
14.2
15
10
6.5
5.8
5
0
Within 1 year
Between 1 and 2 years
Between 2 and 3 years
Length of Time
Between 3 and 4 years
After 4 years
41
Tables 1.a. to 1.d.
THE HIGH COURT
Personal Injury Statistics
1 January 2000 to 30 September 2003
Length of Time from Issue of Summons to Setting Down of Case for Trial
Length of Time from Issue of Summons to Setting Down of Case for Trial - Overall Totals 2000-2003
60
50
40
Percentage
Of Claims
Claims
2000
2001
2002
2003
30
20
10
0
Within 1 Year
Between 1 & 2
Between 2 & 3 Years Between 3 & 4 Years
Length of time
After 4 Years
42
4.3.2. Table 2 - Volume of cases set down
Table 2 shows the number of cases already set down and awaiting trial at the various venues
for the years 2000, 2001 and 2002 with the average waiting times from setting down to date
of hearing. The number of cases awaiting hearing remains relatively constant and there is no
lengthening of waiting times.
Thus it will be seen that the average waiting time from being ready for hearing to being listed
for hearing in Dublin in 2001 was 10 days, in Dundalk, Galway, Waterford and Kilkenny it
was 3-6 months. In Cork it was 2 years. Table 2.x-2001 and Table 2.xi-2002 give a picture
of the number of cases dealt with in the year and the average waiting time from being ready
for hearing to being listed for hearing.
43
Table 2.
THE HIGH COURT
Volume of Personal Injury Litigation in the High Court
Table 2.i.
DUNDALK
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
DUNDALK
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
Dublin
2000
7,612
6,814
4,187
4,892
4,134
5,834
7,612
5,690
6,814
4,823
6,125
10 days
10 days
Table 2.ii.
Dundalk
2000
2001
2002
608
485
537
472
550
462
595
485
498
537
482
517
6 months
3-6 months
Galway
2000
2001
2002
887
603
566
482
548
658
766
603
585
566
474
750
3 months
3-6 months
Table 2.iv.
WATERFORD
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
2002
9,268
Table 2.iii.
GALWAY
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
2001
Waterford
2000
2001
2002
434
403
388
341
333
332
372
403
348
388
323
397
8 months
3-6 months
44
Table 2.v.
KILKENNY
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
Kilkenny
2000
142
170
130
188
121
180
142
160
170
157
134
3 months
3-6 months
2001
2002
1,901
1,473
1,134
706
707
690
1,134
1,473
1,046
1,134
713
1,111
2 years
2 years
Limerick
2000
2001
2002
1,015
770
848
625
762
760
870
770
684
848
575
1,033
6 months
12 months
Table 2.viii.
SLIGO
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
Cork
2000
Table 2.vii.
LIMERICK
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
2002
192
Table 2.vi.
CORK
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
Cases disposed of
Average waiting time from ready
for hearing to listed for hearing
2001
Sligo
2000
2001
2002
189
256
287
343
343
269
276
256
312
287
326
230
6 months
3-6 months
45
Table 2.ix.
TOTALS
No. of Personal Injury summons
issued
No. of Fatal Injury summons
issued
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases received during
the year
No. disposed of during the year
No. on hand at year end
TOTALS
2000
2001
2002
10,480
12,335
10,641
108
98
-
14,494
11,744
10,744
7,286
8,323
7,426
10,027
11,744
9,323
10,744
7,873
10,297
Table 2.x - 2001
No. of Cases dealt with each year and average waiting time from ready for hearing to being listed for hearing
(2001)
Average Waiting Time in M
6000
30
5690
5000
25
24
No. of Cases4000
20
3000
15
12
2000
10
6
6
6
6
1046
1000
498
6
5
684
585
342
312
160
0.5
0
Dublin
0
Dundalk
Galway
Waterford
Kilkenny
Cork
Limerick
Sligo
Location
No. of Cases Disposed of in 2001
Average Waiting Time
Table 2.xi - 2000
No. of Cases dealt with each year and average waiting time from ready for hearing to being listed for hearing
(2000)
Average Waiting Time in Mo
7000
6000
30
5834
25
24
5000
No. of Cases
20
4000
15
3000
10
2000
8
6
1000
0
595
6
1134
6
5
870
766
3
3
372
276
180
0.5
Dublin
0
Dundalk
Galway
Waterford
Kilkenny
Cork
Location
No. of Cases Disposed of in 2000
Average waiting time
Limerick
Sligo
46
4.3.3. FIXING A DATE FOR HEARING:
Dublin List
Once a case is set down the parties may apply immediately for a hearing date which will
usually be within three weeks from the date of application.
Venues outside Dublin
The High Court sits at Cork, Galway, Limerick, Waterford, Sligo/Letterkenny, Kilkenny and
Dundalk to hear personal and fatal injury actions. Cases are listed in chronological order once
set down. Applications to fix the list of cases for hearing are heard by the list judge three
weeks in advance of the sittings. Cases which are not ready for hearing are adjourned.
WAITING TIMES:
Dublin List
There are no delays in this list and the speed with which a case obtains a hearing date is a
matter for the parties. Long cases such as medical negligence actions which may last a
number of weeks may require that a date be specially fixed by the judge. The date assigned
will depend on the state of the list. However, these waiting times are also dependent on the
availability of a judge to hear the case on the date assigned.
Venues outside Dublin
The only significant delay is in the Cork list where cases may take 2 years to be reached. In
the Dundalk, Kilkenny, Galway, Waterford and Sligo/Letterkenny lists, cases that are ready to
proceed will usually be heard within 3 - 6 months of setting down. In Limerick cases are
usually heard within 12 months of setting down.
47
4.3.4 AWARDS OF DAMAGES:
The Committee has looked at the statistics on the level of awards made in the High Court
between October and December 2002. There were a total of 153 awards in the High Court in
that period where judgment was given for a liquidated sum.
Care must be taken in drawing conclusions from these statistics. These 153 cases only
represent a small proportion of the personal injuries actions disposed of in the High Court in
the same period. In the vast majority of cases which settle the court will have made on
consent an order striking out the proceedings and any consent costs order requested.
The Committee noted that 79% of the awards made in the High Court during this period were
within the €0 to €100,000 range. Section 13 of the Courts and Court Officers Act, 2002 makes
provision for the extension of the jurisdiction of the Circuit Court to €100,000 from its present
jurisdiction of IR£30,000 (€38,092.14). This provision has not yet been brought into
operation. If this provision were brought into operation it would undoubtedly have a
significant effect on the volume of personal injuries litigation in the Circuit Court. This
would require adequate resources and provisions to be put in place in the Circuit Court. It
would also have the effect of reducing the number of personal injuries cases in the High Court
which may result in savings in legal costs, time etc. However, the personal injuries actions
which now proceed before the High Court are often lengthy and costly in terms of court time.
This is illustrated by the cases on medical negligence, for example.
Table 3 sets out the level of awards in the High Court in the stated periods of time.
48
Table 3.
THE HIGH COURT
Level of Awards (October to December, 2002)
Range of amounts awarded:
€0 to €37,999
51 cases (34%)
€38,000 to €99,999
69 cases (45%)
€100,000 to €199,999
17 cases (11%)
€200,000 to €999,999
14 cases ( 9%)
€1m +
2 cases ( 1%)
Total
153 cases (100%)
The lowest amount awarded in the High Court cases was €4,177 while the highest amount
was €3.75 million.
Table 3.
High Court - Level of Awards
50
45
45
40
Percentage No. of Awards
35
34
30
25
20
15
11
9
10
5
1
0
€0 - €37,999
€38,000 - €99,999
€100,000 - €199,999
Level of Awards
€200,000 - 999,999
€1million +
49
4.4.
The Circuit Court
There are statistics as to the number of civil bills issued in the Circuit Court but the figure is
not broken down so as to identify personal injuries actions.
At the request of the Committee information was obtained from a number of specific
locations. Thus in four provincial Circuit Court areas information is available on personal
injuries civil bills. See table 4.
50
Table 4.
THE CIRCUIT COURT
Personal Injuries – 4 Provincial Circuit Court Venues 2002
Venue
Carrick-onShannon
(Leitrim)
88
706
361
3617
12
240
Nil
2030
42
361
163
2836
41
406
160
2436
13
195
3
2430
Time from issue of civil
bill to notice of trial
Less than 1 year
10
284
38
Notice of trial in
almost all cases
was issued within
1 year
1 to 2 years
21
104
55
over 2 years
Time from notice of
trial to actual hearing
Less than 3 months
10
18
70
6
40
All less than
3 months
3 to 6 months
Over 6 months
12
23
176
190
No. of P. I. civil bills
issued
Cases ready for Trial
No. of cases on hand at
commencement of year
No of new cases ready
during the year
No. disposed of during
the year
No. on hand at year end
Naas
Castlebar
(Mayo)
Cork
51
4.4.1 Level of Awards in the Circuit Court
The Courts Service provided the Committee with tables setting out the level of awards in the
Circuit Court. These are as follows:
Table 5.a.
Circuit Court level of awards (Dublin Circuit Court)
Table 5.b.
Circuit Court level of awards (Provincial Circuit Courts)
Table 5.c.
Circuit Court level of awards (Overall Circuit Courts)
4.4.2 Dublin Circuit Court
In relation to the Circuit Court in Dublin, a total of 78 personal injury cases resulted in awards
being ordered in the period October, 2002 to December, 2002. The lowest amount awarded
was €1,452.56, the highest was €36,886.
The total amount awarded in all cases was
€1,068,527.83.
The Committee noted that 77% of the awards made in the Circuit Court in that period were
within the €0 to €20,000 range. Section 14 of the Courts and Court Officers Act, 2002 makes
provision for the extension of the jurisdiction of the District Court to €20,000 from its present
jurisdiction of IR£5,000 (€6,348.69). This provision has not been brought into operation. If
this provision were brought into operation it would undoubtedly have a significant effect on
the volume of personal injuries litigation in the District Court, for which adequate resources
and provisions would then have to be put in place. Such a change would also have the effect
of reducing the amount of personal injuries litigation in the Circuit Court which may result in
savings in legal costs, time etc.
52
Table 5.a.
THE CIRCUIT COURT
Level of awards (October to December, 2002)
The Dublin Circuit Court
RANGE OF AWARDS:
DUBLIN CIRCUIT COURT
€0 to €9,999
29 cases (37%)
€10,000 to €19,999
31 cases (40%)
€20,000 +
18 cases (23%)
Table 5.a.
Dublin Circuit Court - Level of Awards
45
40
40
37
Percentage No. of Awards
35
30
25
23
20
15
10
5
0
€0 - €9,999
€10,000 - €19,999
Level of Awards
€20,000 +
53
4.4.3 Provincial Circuit Courts
In the provincial Circuit Courts, a total of 356 personal injuries cases resulted in awards being
made in the period October, 2002 to December, 2002. The lowest amount awarded was
€500.00, the highest €42,481.40. The total amount awarded in all cases was €5,008,350.40.
Table 5.b.
THE CIRCUIT COURT
Level of awards (October to December, 2002)
Provincial Circuit Court
RANGE OF AWARDS:
PROVINCIAL CIRCUIT COURTS
€0 to €9,999
125 cases (35%)
€10,000 to €19,999
143 cases (40%)
€20,000 +
88 cases (25%)
Table 5.b.
Provincial Circuit Courts - Level of Award
45
40
40
35
Percentage No. of Awards
35
30
25
25
20
15
10
5
0
€0 - €9,999
€10,000 - €19,999
Level of Awards
€20,000 +
54
4.4.4 All Circuit Courts
In relation to all Circuit Courts, a total of 434 personal injuries cases resulted in awards being
made in the period October, 2002 to December, 2002. The lowest amount awarded was
€500.00, the highest being €42,481.40.
Table 5.c.
THE CIRCUIT COURT
Level of awards (October to December, 2002)
Overall Circuit Courts
RANGE OF AWARDS:
ALL CIRCUIT COURTS
€0 to €9,999
154 cases (36%)
€10,000 to €19,999
174 cases (40%)
€20,000 +
106 cases (24%)
Table 5.c.
Overall Circuit Courts - Level of Award
45
40
40
36
Percentage No. of Awards
35
30
24
25
20
15
10
5
0
€0 - €9,999
€10,000 - €19,999
Level of Awards
€20,000 +
55
4.5.
Statistics from the District Court
The District Court is a court of local and limited jurisdiction. There is a considerable volume
of business in the District Court. Thus in 2002 there were over 75,000 cases dealing with
civil matters. This was broken down in the Courts Service Annual Report 2002 as follows:
The Courts Service/Annual Report 2002
Civil Applications Dealt With
2002
2001
Ejectment proceedings
179
106
__________________________________________
Summary judgment
33,476
33,363
__________________________________________
Small claims
3,020
3,081
__________________________________________
Ordinary civil process
7,600
10,084
__________________________________________
Summonses of
a civil nature
6,880
9,699
__________________________________________
Examination orders
8,422
7,943
__________________________________________
Instalment orders
10,430
9,385
__________________________________________
Committal orders
5,788
5,782
__________________________________________
Foreign judgment
42
9
__________________________________________
Total
75,837
79,452
56
CHAPTER 5
Litigating personal injuries claims: issues and solutions
5.1.
Proposed procedural changes
The Committee has examined the current system of personal injuries litigation and the
submissions which it received, and considered whether the present system of practice and
pleadings is appropriate to modern personal injuries litigation.
The Committee considers that the procedures adopted by the Courts for the resolution of
personal injuries claims should, in addition to providing litigants with a swift and efficient
system of determination, provide encouragement and incentive for the settlement of claims
without recourse to the courts. It is the view of the Committee that many of the necessary
changes should be brought about by Rules of Court.
In response to a request from the Minister for Justice, Equality and Law Reform the
Committee has advised, in relation to the Civil Liability and Courts Bill, that many of the
legislative proposals seeking to regulate court proceedings are more properly matters for
Rules of Court52. However, the legislation has proceeded. Consequently many of the
suggestions in this chapter and in the draft Rules of Court appended may be academic.
However, the Committee makes these advices available as they may assist the future
development of the practice and pleadings of personal injuries actions and the Rules
Committees.
52
Commentary on the General Scheme of Civil Liability and Courts Bill by the Committee on Court Practice
and Procedure, November, 2003.
57
The absence of urgency in the initial processing of personal injuries claims acts as a
disincentive to an early and appropriate investigation of such claims by the parties and may
indeed add to the level of injuries suffered by the claimant, by virtue of the stress which
delays in bringing closure to a claim may cause. Further, procedures which prolong the
processing of a claim add to the overall cost and duration of determining the claim.
The Committee is conscious that the personal injuries claims which go to trial and are decided
by the courts play a pivotal role in the determination of all personal injuries claims. There are
a variety of reasons for this, including the following:
(a) They provide useful contemporary indicators of the level of damages
which successful claimants are likely to recover from the courts for various
categories of personal injuries arising out of a proven civil wrong on the
part of defendants;
(b) They provide (or should provide) useful indicators to claimants and
defendants alike of the likely costs which an unsuccessful party will incur
where personal injuries claims are determined by way of litigation;
(c) They provide (or should provide) an indicator of the time-span which the
parties can expect between the commencement of the proceedings and the
date of determination of the claim where the parties choose litigation as the
means of resolving the claim; and
(d) They determine conclusively claims which cannot be resolved between the
litigating parties by any other means.
The Committee is of the opinion that changes may be made to present court procedures and
practices which would result in the processing of personal injuries by the courts in a speedier,
58
more effective, more efficient, and less costly manner, and in a manner which will provide
encouragement and incentive for the resolution of claims by way of compromise.
The Committee believes that this can be achieved by a combination of measures including:

Revised statutory limitation periods.

Disclosure of relevant information by the parties at the commencement of the
proceedings (to be enforced by way of sanction in default).

Immediate, clear, detailed and unambiguous pleading of claim and defence (to be
enforced by way of sanction where necessary).

The imposition of more practical and less flexible time limits for the delivery of
pleadings and for the regulation of other procedural steps within the proceedings.

Direct case management (where appropriate), by the courts.

The provision of information on the level of awards to assist the judiciary and to
ensure consistency and predictability in the level of awards for different categories of
personal injuries.

The imposition of criminal and other sanctions designed to discourage false and
exaggerated claims.

The allocation of sufficient Judges, court officials and resources to implement
successfully the changes proposed.
The Committee is strongly of the view that the procedural changes proposed should be
implemented primarily by making new rules of court and by amending existing rules in order
to give effect to the proposed changes. This is necessary in order to provide an essential
flexibility which cannot be achieved by way of statutory enactment, and to ensure that any
59
procedural changes made are properly synchronized with the general procedural regimes for
the various jurisdictions, which are rules-based.
The Committee considers that court practices and procedures which produce fair, reasonable
and predicable awards of damages for personal injuries within reasonable and predictable
time-frames at a fair and reasonable cost will not only serve the interests of parties who wish
to litigate personal injuries claims to a conclusion within the courts but will also have the
effect of encouraging and facilitating a significantly higher level of compromise and
settlement and at an earlier stage than is currently the case.
5.2
Revised Statutory Limitation Periods
In general in this report the Committee has advised that changes be implemented by way of
Rules of Court. One matter which should be dealt with by way of legislation is the revision of
limitation periods. The Committee indicated its view on the limitation period in November,
200353.
The Committee has indicated at an earlier stage,54 and it remains the view of the Committee,
that a one year limitation period for the commencement of a personal injuries claim within the
courts would give rise to significant practical difficulties and may result in inconsistencies –
particularly having regard to the limitation period applicable to personal injuries claims made
against the estate of deceased persons. The Committee is of the opinion that a reduction in
the limitation period from three years to two years is consistent with the desired objective of
developing an efficient and effective system of personal injuries claims determination.
53
Commentary on the General Scheme of Courts and Civil Liability Bill by the Committee on Court Practice
and Procedure for the Minister for Justice, Equality and Law Reform, 6th November, 2003.
54
Ibid.
60
There have been suggestions in other contexts that traditional limitation periods be reduced.
Thus, for example, the Mohan Report on Defamation Law recommends that the limitation
period for defamation actions be reduced from the existing six years to just one year, albeit
with a discretionary power to extend that limitation period. However, the Committee
observes that defamation is a case apart: in the vast majority of cases, the damage done to
reputation by the libel is more or less instantaneous.
5.3.
New Approach
The Committee advises that there be a new approach to the practice and pleadings in personal
injuries actions. Steps should be taken as soon as possible after an event by the parties and
their legal team. In addition there should be co-operation between the parties to crystallize
the relevant facts and issues. The Committee acknowledges that the requiring of early action
by and on behalf of the parties will involve an element of cost. However, in general, it
advises that such an approach would be beneficial.
The Committee observes that there is an inherent conflict in imposing procedures which will
require greater work and more court appearances at an earlier stage in proceedings, and
seeking to reduce costs. On balance the Committee considers it desirable to introduce
procedures, which will place the proceedings under the control of the court at an earlier stage
than at present, but recognises that such procedures will impose additional costs. It is,
however, envisaged that those procedures may also result in a greater number of early
settlements thereby reducing overall costs.
Underlying the proposed changes is also a principle of early and full disclosure of all relevant
facts and documents by all parties. Many cases are not capable of being settled until such
61
disclosure has taken place. Matters relevant to early and full disclosure are addressed in
paragraph 5.13.
5.4.
Committee proposals for new practice and procedure
The Committee proposes that there be a more efficient and effective system in the courts, as
follows:1.
Prior to the commencement of proceedings and within three months55 of the
occurrence of an event which has given rise to a claim for damages for
personal injuries, or the date of knowledge, (if later), of the person injured, the
proposed defendant should be notified in writing by the claimant or his legal
advisor of the following:
(a)
that a claim is being made,
(b)
the circumstances which have given rise to the claim including the date,
time and place where the incident is alleged to have occurred, the
nature, extent and alleged consequences of the injuries which the
claimant has sustained, any facilities which may be required by or on
behalf of the claimant from the proposed defendant for the purpose of
investigating the incident in greater detail, information as to the
availability of the plaintiff for the purpose of medical examination by
the proposed defendant.
55
The Committee notes that s. 7 of the Civil Liability and Courts Bill, 2004, would require a claimant to notify a
potential defendant of the nature of the wrong alleged to have been committed by the latter within two months of
the date of accrual of the cause of action or date of knowledge of the claimant as to the cause of action,
whichever be the later. Failure, without reasonable cause, to comply with this requirement would entitle the
court hearing the action either to make no order of costs in favour of the plaintiff, or to deduct an appropriate
amount from costs awarded to the plaintiff, and to draw appropriate inferences from such failure.
The Committee is of the view that three months would be a more appropriate period within which notice should
require to be given, and that the information required to be provided should extend to the circumstances giving
rise to the claim and the nature, extent and alleged consequences of the injuries alleged.
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5.5.
Immediate, clear, detailed, and unambiguous pleading
The Committee is of the opinion that the present system whereby personal injuries claims are
pleaded by way of the delivery and exchange of a number of documents over an indeterminate
period of time is inappropriate and inconsistent with our objectives.
The Committee welcomes the objectives in the Civil Liability and Courts Bill but would again
point to the difficulties inherent in prescribing the content of writs and pleadings by primary
legislation. The Committee favours the expansion of the content of the initiating writ in
personal injuries and the alignment of the content requirements for the different jurisdictions.
However, to enable the new type of writ to benefit from and synchronise with the existing
procedural regimes for each jurisdiction, the writ, while bearing the words “personal injuries”
within its title, should be designated as a plenary summons, civil bill or civil summons, as the
case may be, for the respective jurisdictions of the High Court, Circuit Court and District
Court. This would facilitate the introduction of the new writ in an efficient manner, avoiding
the need for a costly and time-consuming general overhaul of the existing rules of court to
accommodate it.
5.6.
New Forms of Documents
The High Court
The Committee proposes that a personal injuries claim should be fully pleaded by the delivery
of just two (and occasionally three) documents called respectively:
1. A plenary summons, civil bill or civil summons, as the case may be, to be styled
and referred to as a Personal Injuries Summons - whereby a plaintiff’s claim will be
pleaded in full;
2 A Defence – whereby a defendant’s defence to the claim will be fully pleaded in
full and,
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3 where occasion requires, a Reply – whereby the plaintiff will make a special plea
in respect of a specific matter.
5.6.1. Personal Injuries Summons
A.
The indorsement of claim on a Person Injuries Summons should:
(a)
specify in a detailed and comprehensive manner,
(i)
the circumstances in which the injuries are alleged to have been
suffered by the claimant;
(ii)
the negligence, breach of duty or other civil wrong alleged on the part
of the defendant;
(iii)
the nature and the extent of the injuries alleged and their alleged
consequences for the claimant; and
(iv)
the material facts upon which the complainant will rely and any matter
for proof of which the plaintiff intends to rely upon the evidence of an
expert witness; and should
(b)
contain a schedule detailing particulars of all loss and damage, past and future
in respect of which damages are sought, including all items of special damage.
Where the plaintiff alleges personal injuries a certified copy of a written medical report from a
medical practitioner who examined and/or treated the plaintiff should be attached to the
Personal Injuries Summons and should be served upon the proposed defendant(s) at the time
of service. Failure to comply with the requirements as to the particulars to be included in or
attached to a Personal Injuries Summons should expose the plaintiff to sanctions similar to
those mentioned in relation to disclosure at paragraph 5.13. below.
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B.
Every Personal Injuries Summons should be served on the defendant within 28 days
from the date upon which it has been issued unless the court has extended the time limited for
service. The summons should lapse and cease to be in force upon the expiration of the period
for service.
A defendant upon whom a Personal Injuries Summons has been served should have a period
of ten days from the date of service upon which to enter an Appearance and a further period
of 120 days within which to deliver a Defence.
5.6.2. Defence
The Committee proposes that a defendant should plead through the delivery of just one
comprehensive document to be called a Defence.
A. The Defence delivered on behalf of a defendant should specify in relation to each
averment of fact within the Personal Injuries Summons whether the defendant, (a) agrees (b)
disputes, or (c) is unable to agree or dispute, and of which he requires proof. The defence
should specify the grounds upon which the defendant disputes an averment, and set out the
defendant’s version of events should they conflict with an averment of the plaintiff.
B. The Defence should specify, in a detailed and comprehensive manner, particulars of the
material facts upon which the Defendant will rely. After delivery of a defence the defendant
should be required to file the defence. This will allow the court officer fix a date for the case
management conference, if appropriate. (See draft Rule 18(1) and draft Rule 24 in Appendix
D).
C. If a counterclaim is added to a Defence it should contain the particulars prescribed for a
personal injury summons.
65
5.6.3. Reply
By way of special pleading a plaintiff may, within fourteen days of the delivery of the
Defence, deliver a Reply to the Defence (and if necessary a Defence to any counterclaim). In
default of the delivery of a Reply within the time permitted all facts and matters which are not
expressly admitted by the parties should be deemed to be in issue.
5.6.4. Pleadings generally
A Personal Injuries Summons, an Appearance, a Defence (and counterclaim) and (where
appropriate) a Reply (and Defence to counterclaim) should be the only pleadings permitted in
personal injuries actions. After delivery thereof they should not be amended subject to the
following:
(a)
Where it is sought to amend pleadings as to liability, in exceptional
circumstances only, and then by way of a motion to the court grounded upon
evidence on affidavit and subject to sanction as to costs.
(b)
Within 21 days from the date of service of the Personal Injuries Summons a
defendant should be permitted to serve upon the plaintiff a notice seeking
further and better particulars of matters alleged in the Personal Injuries
Summons. Thereafter the plaintiff should have a period of 28 days within
which to deliver such particulars or within such additional period of time as
may be agreed between the parties.
After delivery of the Defence the plaintiff should, within 21 days thereafter, be entitled to
serve a notice upon the defendant seeking further and better particulars of matters alleged
within the Defence and thereafter the defendant should have a period of 28 days within which
to deliver such particulars.
66
Applications seeking to compel delivery of such further and better particulars should be made
to the court at any time and to the Court Officer (and thereafter the Court on appeal) at the
Case Management Conference.
The delivery of additional particulars of injuries loss and damage by the plaintiff should be
permitted pursuant to directions or with leave of the Court Officer or the Court or by consent
of the parties.
5.7.
Exchanges of final offer
The Committee notes the provision in the Civil Liability and Courts Bill for the exchanging of
final offers of terms of settlement by the parties. While the Committee sees benefit in such a
requirement, it is suggested that this requirement would best be provided for by rule of court,
and should in any case be aligned with the existing provisions for lodgement or tender with
defence in the rules. Where an award made is less than an offer made by the defendant, the
plaintiff should be exposed to a liability for costs in the same manner as would arise where
the plaintiff had failed to beat a lodgement with a defence.
5.8.
More practical and less flexible time limits
The Committee considers that practice, procedure and pleadings in personal injuries actions
should be regulated by time limits which are practical and realistic and can reasonably be
complied with by the parties. The Committee has concluded that without rigid application
such practical and realistic times limits will be ineffective and incapable of achieving the
objective required. In this regard, the Committee notes the provision, in head 8(2) of the Civil
Liability and Courts Bill, which would sanction an extension of time for service of a
document or the taking of other steps in the proceedings, to circumstances where:
(a) the parties to the action agree to the period being extended, or
67
(b) the court considers that—
(i) in all the circumstances the extension of the period by such further period as it may direct
is necessary or expedient to enable the action to be properly prosecuted or defended, and
(ii) the interests of justice require the extension of the period by that further period.
While different issues arise in personal injuries claims, resulting in the requirement for
differing time-frames within different actions, the Committee believes that the following time
limits are, in the main, practical and realistic in respect of most personal injuries actions and
should be applied strictly save in exceptional circumstances (and then only upon application
to the Court):
(1)
Service of Personal Injuries Summons – 28 days (subject to extension by the
Court as outlined above), after which the summons shall cease to be in force.
(2)
Entry of Appearance – 10 days from date of service.
(3)
Delivery of Defence – 120 days from date of entry of Appearance. The present
time limit prescribed for the delivery of a Defence, (28 days from Statement of
Claim), is wholly inadequate to enable a defendant to investigate a claim and
prepare a Defence. It is accordingly unenforceable and is not enforced. The
Committee believes that a realistic time limit should be applied and enforced.
(4)
Case Management Questionnaires – returned to the Court Officer not later than
28 days after delivery of Defence (or Reply).
(5)
Case Management Conference (where appropriate) – 60 days after date of
delivery of Defence.
(6)
Other steps – by order of the Court or by direction of the Court Officer.
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5.9.
Case Management by the Courts
The Committee advises that additional Masters and legally qualified Court Officers should be
appointed and empowered by Rules of Court to give certain directions and make certain
orders to accommodate the case management of appropriate personal injuries actions. The
Committee considers that not all personal injury actions will require a case management
conference. Detailed consideration should be given by the Superior Rules Committee to
establish objective criteria according to which it may be decided if a case management
conference is appropriate. The assignment of case management functions to court officers
would present a challenge to the Courts Service to ensure, through its recruitment, selection
and professional training programmes, that a pool of court personnel having appropriate
professional and technical skills are available to carry out the case management
responsibilities.
5.10. Questionnaire
Not later than 28 days after the delivery of a Defence in a personal injuries action the parties
should send to the appropriate court officer a questionnaire in the form set out in the Rules of
the Superior Courts directed towards identifying the matters which are in issue in the case, the
nature of the claim and the volume of evidence (including expert evidence) which is likely to
be adduced at the trial of the proceedings.
The questionnaire should also require:
(a) details of ascertainable special damages claimed to date,
(b) a schedule of witnesses (including expert witnesses from both parties),
(c) an estimate by each party of the expected duration of the trial, and
(d) details of any matter for proof of which the plaintiff intends to rely upon the
evidence of an expert witness.
69
5.11. Case Management Conference
Completed questionnaires should be returned to the appropriate Court Officer who should,
where appropriate, conduct a Case Management Conference with the parties not less than 60
days after the delivery of the Defence. The parties or their legal representatives should attend
the Case Management Conference. The Committee is of the opinion that any legal
representative attending a Case Management Conference who is unfamiliar with the details of
the case in question so that the matter cannot proceed should be subject to sanction by way of
an award or refusal of costs by the Court Officer or (on the appeal) the Court.
At the Case Management Conference the Court Officer (and on appeal the court) should give
such directions and make such orders as may be required for the purpose of accommodating
the speedy and efficient resolution of the claim. In particular and without limiting the
generality of the above objective the Court Officer (and on appeal the Court) should give
appropriate directions or make appropriate orders for:
(i)
The exchange of expert evidence;
(ii)
A meeting to be held between relevant experts and their joint preparation of a
report for the court stating (i) the points on which they agree; (ii) the points on
which they disagree and why;
(iii)
The raising of questions to and from expert witnesses;
(iv)
The possible nomination of joint experts;
(v)
The fixing of a “statement of issues”;
(vi)
Upon the application of one or more of the parties (or on the initiative of the
Courts Officer or the Court) that particular issues be tried separately;
(vii)
The disclosure or discovery of documents;
(viii) The delivery of additional particulars of injuries or of loss or of medical
reports;
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(ix)
That specified sums of money shall be paid by the Defendant to the Claimant
within a specified period of specified terms by consent of the parties on foot of
an offer made by the Defendant and accepted by the Claimant in satisfaction of
a specified item of special damages or general damages claimed in the
proceedings;
(x)
The issuing of third party notices;
(xi)
The fixing of a “trial window” (being a period of approximately four weeks
during which the trial of the action will be listed); and
(xii)
Such other steps and procedures as the Court Officer or the Court shall deem
appropriate for the purpose of ensuring that the case proceeds in an expeditious
manner.
Where no Case Management Conference is directed the court, Master or Court Official shall,
upon receipt of the questionnaire fix a “trial window” for the case. On a date not less than
four weeks before the commencement of the “trial window” the parties to the personal injures
actions, by themselves or their legal representatives, should attend before the appropriate
Court Officer with a view to the fixing of a precise “trial period” within the “trial window”.
The trial of a personal injuries action should be listed for hearing within the “trial window”
fixed by a Court Officer (or on appeal the Court). Once listed the trial should not be
adjourned other than in exceptional circumstances, on application to the court by way of a
motion, on notice, grounded on evidence by way of affidavit and on penalty by way of costs.
5.12. Sanctions to discourage false or misleading evidence
The Committee has considered the Civil Liability and Courts Bill and the provisions which
provide for (a) criminal sanctions where a person in personal injuries proceedings gives false
71
or misleading evidence or instructions, and (b) sanctions against a plaintiff within the
proceedings by way of dismissal of the latter’s claim where the plaintiff gives or procures the
giving of false or misleading evidence.
In addition to the creation by the Oireachtas of criminal sanctions in respect of false or
misleading evidence, the Committee considers that it is desirable that Rules of Court should
provide for concurrent sanctions, by way of the award or refusal by the Court of costs, where
parties to personal injuries actions make claims or adduce evidence which proves to be false
or exaggerated. The Committee envisages that the revised procedures proposed will provide
for the identification of specific issues as to liability and specific issues as to damages. The
Committee is of the opinion that where such issues, having been determined, are found to
have been based upon false or exaggerated claims or evidence, Rules of Court should provide
for sanctions to be imposed by the Courts by way of awards or refusal of costs.
As has been indicated earlier, the Committee supports the objective within the Bill but
considers that the provision as to verification on oath – as distinct from the provisions
creating criminal offences – should be provided for by way of rules of court and may be
accommodated by requiring an averment on each pleading in the following terms:
I, A.B. v. (Plaintiff or Defendant as the case may be) in the above entitled proceedings,
make oath and say as follows:
1. The contents of the (personal injuries summons, defence, reply etc. – as the case
may be) to the extent that they relate to my own acts and deeds are true, and to the
extent that they relate to the acts and deeds of any other person, I believe to be true.
2. I fully understand that it is an offence knowingly to make a statement that is false or
misleading in any material respect.
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5.13. Disclosure
The Committee considers that present court practices and procedures should be modified with
a view to reducing (and hopefully abolishing) the instances of “trial by ambush”. The
Committee favours the development of a culture of disclosure in personal injuries litigation
and recommends:
1. Within the time specified for seeking particulars any party to a personal injuries
action should be entitled to require from any other party details of any other claims
made by or against those parties for damages for personal injuries, whereupon it
should be the duty of the party so requested to furnish full and detailed particulars of
the claims made and damages awarded (or paid by way of settlement) provided.
However a defendant so requested should be obliged to provide such particulars only
in respect of claims made against the defendant arising out of similar circumstances at
the same or a similar location.
2.
Within the time specified for seeking particulars the person or persons against whom a
claim for damages for personal injuries has been made should be entitled to require
from the plaintiff within four weeks of requesting same, and in any event not later than
two weeks prior to the trial date, details of any aspect of the plaintiff’s medical history
which may bear upon or be relevant to the injuries for which damages are sought,
together with details of the identity of medical practitioners who treated the plaintiff in
respect of such relevant matters, and upon receipt of such request it should be the duty
of the plaintiff to provide such details and information as may be within his or her
possession or power of procurement.
3.
Where damages are sought in respect of loss of earnings arising out of a personal
injuries claim the defendant should, and within the time specified for seeking
particulars, be entitled to request from the plaintiff details of the plaintiff’s earnings
for the 3 year period immediately prior to the incident which has given rise to the
73
claim with supporting documentation from the Revenue Commissioners or the
Department of Social and Family Affairs, whereupon it shall be the duty of the
claimants to provide such details and information as may be within his or her
possession or power of procurement.
4.
At any time up to and including the Case Management Conference or the fixing of a
“trial window” (and thereafter with leave of the Court, Master or Court Officer or by
consent of the parties), any party to a claim for damages for personal injuries should
be entitled to require from any other party to such claim any information, evidence or
facilities for examination or inspection which is relevant to the claim or to the proper
investigation thereof by any of the parties whereupon it should be the duty of the party
so requested to provide such relevant information evidence or facilities as may be
reasonable and within his or her of possession or power of procurement.
5.
The court should be empowered to take such steps as it deems appropriate, whether by
striking out of a claim or defence or by way of the award or refusal of costs or in any
other manner as it may deem fit to sanction any party who, in the opinion of the court,
fails to comply with the obligations imposed by the foregoing provisions or who seeks
to exploit the foregoing provisions in a manner inconsistent with the spirit and intent
thereof – that is to say, a spirit of full, frank and reasonable disclosure by all parties by
all relevant information and evidence within their possession or power of
procurement.
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5.14. Allocation of Judges, Court Officials and Resources
The proposals of the Committee are intended to provide a system for litigants which is both
efficient and speedy. Accordingly, its success will depend upon the allocation of sufficient
personnel and resources to operate the system effectively. Judges should be available to take
the list. Court officers with legal training should be appointed in sufficient numbers to
implement the measures proposed effectively.
At present personal injuries cases listed for hearing are adjourned regularly because of an
insufficiency of trial judges and court personnel. It is unnecessary for the Committee to point
out that the system proposed will not be effective if the present personnel shortages and court
resources are not improved to accommodate the changes proposed.
5.15. Draft Rules
Draft rules are appended in Appendix D. These draft rules may assist the Superior Court
Rules Committee.
5.16. Personal Injuries Actions in the Circuit Court
The Circuit Court is a Court of local and limited jurisdiction. It is organised on a regional
basis throughout the country, and is divided into eight Circuits, namely, the Dublin, Cork,
Eastern, Midland, Northern, South East, South West and Western Circuits. It has a
compliment of thirty-one Judges, including the President of the Circuit Court – although, it
should be noted that from time to time, some of its Judges are assigned to Tribunals and are
not available to sit on the Circuit Court.
The Committee notes that the already extensive jurisdiction of the Circuit Court continues to
increase. Most indictable crime is tried there. In addition, the Circuit Court has an appellate
75
jurisdiction from the District Court, together with a broad-ranging civil jurisdiction which
processes a high volume of Personal Injuries cases. The Circuit Court also has a jurisdiction
in Family Law matters and licensing matters, and it also hears, inter-alia, appeals under the
Unfair Dismissal code and Equality Legislation, and applications by Planning Authorities to
enforce the provisions of Planning Legislation. Apart from these matters, its jurisdiction
encompasses other matters where legal relief is available as well. As may be seen from the
table of statistics for personal injuries cases in the Circuit Court for the year 2002 there is a
potential every year, for the Circuit Court to process a very considerable volume of civil
litigation. For example, in the year 2002 alone, over forty two thousand civil bills were
issued, and over fourteen thousand Notices for Trial were served.
This volume points to a high use of the procedures of the Circuit Court, both in respect of the
institution of proceedings and in the processing of these proceedings to the trial stage.
Nevertheless, and notwithstanding the amount of civil litigation with which it has to deal, case
loads in the Circuit Court are processed expeditiously so that the great majority of civil cases
are disposed of during the term for which they have been set down, in most Circuits. This has
come about partly because of the adoption of simple and user friendly rules for its Practice
and Procedure which have been tailored to suit its requirements. So that, for example, the
time limits in the Circuit Court for the delivery of pleadings and for setting cases down for
trial are quite short (see current procedure for Circuit Court actions chapter 2 paragraphs 2.3
to 2.3.10 of the Report).
In considering the position of the Circuit Court vis-à-vis the other jurisdictions, the
Committee has had regard to the fact that each jurisdiction has developed over time, its own
unique characteristics and requirements, which must, of necessity, impact on the procedures
which each jurisdiction adopts. For this reason, it is considered that the changes in
76
procedures which are being recommended for the High Court may need to be adjusted to meet
the requirements of the Circuit Court. In this context, the fact that the Circuit Court is a Court
of local and limited jurisdiction cannot be over-emphasised. Because a claim in the Circuit
Court is limited in amount, this should mean that the procedural steps and timescale for
advancing a claim are regulated by time limits which are practical and realistic for the Circuit
Court. One of the problems identified by the Committee in the High Court, is that existing
procedures do not act as an incentive for the parties to bring their action to trial with
reasonable expedition. However, in the Circuit Court this does not present the same problem
– in fact, its procedures and time limits create an incentive for the parties in Circuit Court
actions to get on with their cases without unnecessary delay.
Taking these factors into account, the Committee believes that there is a strong case for
maintaining the present time limits for Circuit Court procedures and that the time limits
recommended for the High Court in this report should not be extended to the Circuit Court.
5.17. Personal Injuries Actions in the District Court
Personal Injury cases are quite rare in the District Court where damages are limited to
€6,348.69. Procedures are deliberately simple in this court where the originating Civil
Summons has a return date for which it is served. This is a date “for mention” only. The
defendant files a notice of intention to defend but does not give any details of his defence. On
the return date the judge can deal with any particulars required by the parties. There is no
notice for particulars in the District Court save by order of the judge. A date is then fixed for
the hearing of the case.
It is envisaged that the Personal Injuries Civil Summons will contain the relevant details and
that on the return date or an adjourned “for mention” date the judge will give directions for
77
any particulars to be furnished by either side. It is envisaged that this should occur a
maximum of one month after the Notice of Intention to defend.
As with the Circuit Court, the District Court is a court of local and limited jurisdiction and the
Committee advises that there is no necessity to incorporate the detailed procedures and time
limits required in the High Court.
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CHAPTER 6
COSTS
6.1.
The Cost of Litigating Personal Injuries Actions
The Committee advises that the issue of the cost of litigating personal injuries be addressed.
The Committee received many submissions expressing concern at the:High cost of litigating personal injuries actions

The lack of transparency in an action as to the costs being incurred

The lack of information on the costs in general in litigating personal injuries actions

The costs of cases which have not reached the courts

The lack of financial incentive to legal advisers to achieve speedy settlements
6.2.

No Foal, No Fee
The Committee is aware that many cases are taken on behalf of plaintiffs by solicitors and
barristers on a “no foal, no fee” basis. Thus, if the action does not succeed then the legal
advisors of the plaintiff obtain no fees. If, however, they win the costs will be paid by the
unsuccessful defendant. This has been criticised. However, if lawyers did not take such work
plaintiffs would have to take the case to court themselves as a lay litigant. There is no civil
legal aid in such cases in Ireland. While there was civil legal aid for such cases in the United
Kingdom for many years, it was costly and was discontinued. There does not appear to be
any likelihood of civil legal aid for personal injuries actions being introduced in Ireland.
Thus, plaintiffs will continue to rely on lawyers taking such cases on a “no foal, no fee” basis.
6.3.
No incentive to keep costs down
In “no foal, no fee” cases solicitors are often investing in a case by, for example, paying
experts in advance. However, there is no incentive to keep costs down. There is no incentive
79
to co-operate. There is no incentive to keep the length of a case down. Once the trial starts
legal advisors are paid on a daily basis and not on a pre-arranged price.
The plaintiff will have an interest in the outcome of the case, of course. However, the
plaintiff may have little or no interest in the costs accumulated because if the case is
successful he will recover the costs against the defendant, and if he looses there may be no
reality in him being held to account to pay for costs.
6.4.
Tax
In considering the cost of litigation the high level of taxation paid to the State must also be
examined.
In costs, 21% of the solicitor’s professional fee is vat, as also are barrister’s fees and
professional witnesses. On top of that, if a case goes to taxation and is decided on taxation,
then there is a duty of 8% payable to the State on that bill.
If costs are not agreed, then they go to taxation. In that situation both sides employ the
services of a legal cost accountant to draw-up the bill and pursue it through the Taxing
Master’s office. There are scales for certain items in taxation, but for the main item, which
would be the professional fee, there is no scale, and the Taxing Master assesses that on work
actually done and from comparisons given to him by the legal cost accountants. If the parties,
or one of the parties, are not happy with the result of the taxation, they can then lodge
objections to it and it can be reviewed by the Taxing Master and if they are still not happy,
then it can be reviewed by the High Court and on appeal to the Supreme Court.
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6.5.
High Level of Costs in England and Wales
The high level of costs in civil litigation in England and Wales was one of the fundamental
matters dealt with in Access to Justice.56 Thus, the issue of costs permeates every aspect of
the recent reforms in civil litigation in England and Wales.
The Woolf Reforms
The Woolf Reforms changed the conduct of civil litigation in England and Wales profoundly.
Lord Woolf identified the system of costs as the most serious problem besetting their
litigation system. He identified three aspects of the costs problem:(a)
Litigation is so expensive that the majority of the public cannot afford it unless they
receive financial assistance.
(b)
The costs incurred in the course of litigation are out of proportion to the issues
involved.
(c)
The costs are uncertain in amounts so the parties have difficulty in predicting what
their ultimate liability would be if their action was lost.
Each of these aspects of the costs problem are relevant in Ireland. Thus there is merit in
considering the new system introduced in England and Wales.
6.6.
Transparency in the cost system
At present there is little, if any, transparency in the cost system. Litigants are often not aware
of the likely costs of their action. It is essential that the costs of litigation are set out initially
to parties in an easily understood fashion at the beginning and during pleadings and
proceedings.
56
Lord Woolf Access to Justice: Final report to the Lord Chancellor on the civil justice system in England
Wales, HMSO, London, 1996.
81
6.7.
Information on the Costs of Litigating
Information on the costs of litigating personal injuries actions should be available to the
general public. This should be done by the professional bodies, insofar as they are enabled.
In addition, there should be published information on the costs of decided cases which would
illustrate a variety of types of cases from a routine road traffic accident to a medical
negligence. This could be published in many ways, including on the Courts Service website.
6.8.
Taxed Bills of Cost
The Committee considered obtaining taxed bills of costs, for publication. A formal practice
direction was issued by the Taxing Master on 3rd April, 1998, providing that any party to a
taxation must obtain consent from the party whose costs were taxed before inspecting the
taxed bill of costs. This direction was upheld by the High Court.57 While not interfering with
the practice direction, the High Court considered that it would be desirable, in the interest of
the efficient taxation of costs, if the Taxing Masters adopted some suitable procedures
whereby Legal Costs Accountants, such as the applicant, could have access to bills of costs
which would not disclose any privileged documents. The court considered that it was
desirable, in the overall interests of efficient taxation, that there be some facility for inspecting
bills of costs which would not prejudice a privilege issue.
6.9.
Taxation of Costs
The Committee has considered judgments of the Taxing Masters on the issue of costs.
However, as many of these cases relate to very specific issues, it has not been possible to
determine general fees from the decisions which would be useful in a general format.
57
Lord v. Master James Flynn and Master Charles Moran, Taxing Masters of the High Court (Unreported, High
Court, Geoghegan J., 14th May, 1999).
82
It is clear that the public would be well served if information in a non-identifiable way were
available on a range of bills of costs.
6.10. Judicial Ruling
It was submitted to the Committee that the trial judge should be given further powers to
determine the amount of costs in cases so as to avoid the necessity of costly taxation. The
Committee was referred to the new system in England and Wales. The Committee is satisfied
that there is merit in giving power to judges to determine the amount of costs in appropriate
(usually the less complicated) cases.
6.11. Increasing use of experts
Submissions made to the Committee included the complaint that there was a growth in the
number of experts called in cases with the consequential increase in costs. It was submitted
that there be a controlling mechanism to prevent plaintiffs loading a case with an excessive
number of experts on a basis that they will not have to pay for them.
In considering the reform of civil litigation the Committee has indicated a degree of Case
Management: see chapter 5. In a case managed system it is less likely that there would be an
excessive use of experts.
6.12. Section 68 Solicitors (Amendment) Act, 1994
Under section 68 of the Solicitors (Amendment) Act, 1994, a solicitor on taking instructions,
is obliged to provide in writing to the client particulars of the amounts which he will charge,
or if it is not possible or practicable to estimate it and then the basis on which the charges are
to be made, namely; is the solicitor going to charge by hour or otherwise.
83
The Committee considers that this section should be enforced and developed.
Equally, there should be a practice whereby a schedule of fees would be provided by counsel
through the solicitor to the clients as to the potential fees he may charge in the case.
6.13. Recommendations

The Committee recommends that there be public information available on the cost of
litigating personal injuries actions.

The Committee received many submissions stating that the cost of litigating personal
injuries actions is very high. Certainly there is a perception that this is the case. The
Committee recommends that the Minister establish an independent study, to include
all claims, not just those litigated, as to the legal costs in personal injuries actions and
how costs could be reduced. This inquiry should be carried out with the full
involvement of the Law Society and the Bar Council. This should be done as a matter
of urgency.

The Committee recommends that there be transparency in the litigating of personal
injuries actions and that details of the potential costs be available to parties.

The Committee recommends that s. 68 of the Solicitors Amendment Act, 1994, be
enforced and developed. This may be done by a practice direction requiring that at the
beginning of a case a copy of the letter be given to the court.

Equally, there should be a practice whereby a schedule of fees would be provided by
counsel, through the solicitor to the client, as to the potential fees he may charge in the
case.

The Committee recommends that the Taxing Masters consider a system of publishing
(through the Courts Service) a range of taxed Bills of Cost with no identifying
information as to the parties.
84

The Committee recommends that judges be given power to determine the amount of
costs in appropriate cases. While the developments in civil litigation in England and
Wales are not all relevant to Ireland, the role given to the judge in determining costs in
certain actions is a matter which should be considered.
85
CHAPTER 7
INFORMATION ON AWARDS OF GENERAL DAMAGES
7.1.
A Judicial Decision
The Committee was asked to consider the extent to which standard tariffs for routine injuries
could be introduced as a guide for a judge in order to avoid discrepancies in levels of damages
awards.
In actions for personal injuries the level of damages, the amount of the award, is determined
by a judge in Ireland. Prior to 1988 this was determined by a jury. However, the law was
amended by s. 1 of the Courts Act, 1988, which provided that, notwithstanding s. 94 of the
Courts of Justice Act, 1924, or any other provision made by or under statute or any rule,
claiming damages in respect of personal injuries caused by negligence, nuisance or breach of
duty shall not be tried by a jury. This change, from decisions on awards being made by a jury
to a judge, has occurred also in other common law countries. Consequent to this change there
has been a growing request for information on the amount of the awards and a concern that
they be consistent.
7.2.
Other Jurisdiction
The Committee considered the situation in other common law jurisdictions.
7.2.1 England
In England the Judicial Studies Board publishes “Guidelines for the Assessment of General
Damages in Personal Injury Cases”.58 These guidelines identify the scale of general damages
being awarded for injuries, divided into types of injury and severity of injury. The English
system distils information collected from individual awards into guidelines. Examples
58
Guidelines for the Assessment of General Damages in Personal Injury Cases, Oxford University Press 6 th, ed.,
2002
86
illustrate this publication. Under the present guidelines, for example, quadriplegia is given a
guideline award of general damages of £165,000 to £205,000. The level of the award within
this bracket depends on various factors, including the extent of any residual movement, the
presence and extent of pain, depression, age, and life expectancy.59
Also, under these
guidelines, for example, information is given on neck injuries. Chapter 6 commences with a
general guide to neck injuries. It states that there is a very wide range of neck injuries and
that many are found in conjunction with back and shoulder problems. It guides:“At the highest level are injuries which shatter life and leave claimants very
severely disabled. These may have a value of up to £77,500. At the lowest
level, claimants may suffer a minor strain, may not have time off work, and
may suffer symptoms for two or three weeks, justifying as little as £500.00.”
The chapter provides details on the variety of injuries and damages which might fall within
this field.
The Guidelines for the Assessment of General Damages in Personal Injuries Actions are
compiled by the Judicial Studies Board of England and Wales by Mr. Justice Bell; Martin
Bruffell, Solicitor; John Cherry, Q.C.; Edwin Glasgow C.B.E., Q.C.; Alan Hughes, Solicitor;
assisted by Michael Tillet, Q.C. They are a Working Group. It is not intended to represent,
and does not represent, a new approach to the awarding of damages. It is not intended to be a
ready reckoner or fetter the individual judgment of the trial judge. “What it is intended to do,
and what it does quite admirably, is to distil the conventional wisdom contained in the
reported cases, to supplement it from the collective experience of the working party and to
present the result in a convenient, logical and coherent form.”60
59
60
at p. 3
Foreword to the First Edition by Lord Donardson of Lymington, Ibid at p. ix.
87
7.2.2. Northern Ireland
The Judicial Studies Board for Northern Ireland has also published Guidelines for the
Assessment of General Damages in Personal Injury Cases in Northern Ireland61. In his
introduction to the Second Edition Lord Justice McCollum stated that while judges determine
the quantum of damages in contested cases, only a small proportion of cases result in judicial
assessment of damages and the vast majority of cases are settled by practitioners. He stated
that the Committee had paid considerable attention to the views of its practitioner members
who are familiar with current settlement figures. He pointed out that the figures are not all
supported by judicial authority and that thus it was a matter for the judge whether or not to
adopt them. Reference was also made to the fact that some injuries give rise to consequences
over and above the direct trauma conflict.
Examples were given of a situation where
complications occur, such as psychological, disfigurement or the development of a medical
condition not usually associated with the injury. Lord Justice McCollum pointed out that in
such situations a separate provision would have to be made.
The book gives detailed information on injuries and general damages levels.
7.2.3. Australia
Widespread reform of personal injuries litigation is taking place in all jurisdictions in
Australia. The publication in 2002 of “Review of the Law of Negligence Report” considered
the reforms that already had been made in some jurisdictions and made recommendations for
reform. The terms of reference of the Panel of Eminent Persons assembled was to examine a
method for the reform of the common law with the objective of limiting liability and quantum
of damages arising from personal injury and death. The Panel was greatly concerned with
achieving consistency in the quantum of damages noting that “[i]n no area is the law more
61
Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (Second
Edition), complied for the Judicial Studies Board for Northern Ireland, by a Committee under the chairmanship
of the Right Honourable Lord Justice McCollum, S.L.S. Legal Publications (N.I.) 2002.
88
diverse and (we are convinced) in no area is the conformity more desirable, than in regard to
the quantum of damages.”62
In respect of tariffs for general damages the report, known as the “Ipp Report”, after the
chairman, The Hon. Justice Ipp, recommended that certain principles should be adopted:-63
“(a) In assessing general damages, a court may refer to decisions in earlier cases for
the purpose of establishing the appropriate award in the case before it.
(b) Counsel may bring to the court’s attention awards of general damages in such
earlier cases.
(c) The Commonwealth Attorney-General, in consultation with the States and
Territories, should appoint or nominate a body to compile, and maintain on a regular
basis, a publication along the same lines as the English Judicial Studies Board’s
Guidelines for the Assessment of General Damages in Personal Injury Cases.”
The specific recommendation that reference to other awards should be allowed was necessary
because of the decision of Planet Fisheries Pty Ltd v. La Rosa (1968) 119 CLR 118 which
prevented counsel from referring to awards in similar cases in order to establish an
appropriate award. The panel was impressed with the English system of guidelines stating:
“[t]he Guidelines facilitate settlements and promote consistency and certainty in the
assessment of general damages in individual cases. By all accounts, the Guidelines have been
markedly successful.”64 The report also recommended the imposition of a threshold for the
award of general damages at 15% of a most of extreme case, i.e. no compensation would be
payable for a claim of general damages below this threshold.65 It was further recommended
62
Para. 13.8
Review of the Law of Negligence Report 2002, recommendation 46.
64
At para. 13.25
65
Recommendation 47.
63
89
that a cap should be placed on general damages, the Panel recommending a figure of
$250,000.
The right to a jury trial in personal injury actions is restricted to varying degrees in different
jurisdictions in Australia, often at the discretion of a judge. Most recently in Queensland the
Civil Liability Act, 2003, abolished jury trials in personal injury actions.66
New South Wales
In New South Wales the award of damages in personal injuries cases is governed by the Civil
Liability Act, 2002. Section 12 provides for the award of damages for past or future economic
loss. Section 16 provides for the award of general damages with a cap of $350, 000, to be
awarded in only the most extreme cases. Damages for non-economic loss are determined in
accordance with a table in s. 16(3) under a three step process. First, the court determines the
severity of the claimant’s non-economic loss as a proportion of a most extreme case,
expressed as a percentage. Secondly the court confirms the maximum amount that may be
awarded for non-economic loss as indexed every year by the Australian Statistician under s.
17. Finally, the amount payable is determined by multiplying the maximum amount that may
be awarded by the percentage set out in the table.
Section 17 A (1) provides that in determining general damages a court may refer to earlier
decisions of that or other courts for the purpose of establishing the appropriate award. Sub.-s
2 provides that for that purpose, the parties to the proceedings or their counsel may bring the
court’s attention to awards of damages for non-economic loss in those earlier decisions.
Thus, while New South Wales has not yet established a book of guidelines similar to that
66
Section 73
90
published by the Judicial Studies Board in England and Wales, the concept has been received
favourably, in principle.
Queensland
In Queensland there has also been reform of the assessment of damages for personal injury in
the Civil Liability Act of 2003.67 Section 61(1) of the Act provides that if general damages are
to be awarded the court must assess the damages on an injury scale. Section 61(2) of the Act
envisages the creation of a regulation which would prescribe injury scale values for types of
injuries. The creation of this regulation was not a straightforward exercise. In a speech to the
North Queensland Law Association Annual Conference in 2003, The Hon. Justice Peter
Dutney referred to the fact that many versions had been attempted and described the process
as a “quagmire”. He described the regulation, of which he had version 7, as
“incomprehensible”.68 In respect of the requirement that the Court must also consider scale
values attributed to similar injuries in prior cases Justice Dutney noted that “[i]n a legal
system based on precedent and stare decisis that hardly seems to me to constitute a novel
proposition although…it may be more of a change than we realise.” At the end of 2003 a
Regulation for the Act was introduced by Subordinate Legislation (No. 229). The Civil
Liability Act Regulation runs to almost 150 pages and details the injury scale values to be
attributed to different types of injuries. The stated objective of the application of injury scale
values is to promote “(a) consistency between assessments of general damages awarded by
courts for similar injuries; and (b) similar assessments of general damages awarded by courts
for different types of injury that have a similar level of adverse impact on an injured person.”
67
Also: The Personal Injuries Proceedings Act, 2002.
“Recent Developments in Personal Injury Law”, North Queensland Law Association Annual Conference-5th
October, 2003, at p. 8.
68
91
Australia, Other jurisdictions
Similar reform has also taken place in other jurisdictions. In Western Australia the Civil
Liability Act, 2002, introduces a sliding scale applicable to general damages. South Australia
has also adopted a general damages points scale as has been done in Queensland. The South
Australian scale runs from 0-60 points. In Tasmania s. 27 of the Civil Liability Act, 2002,
provides for the assessment of general damages according to a mathematical formula. For
example, where the amount of loss is assessed at a certain level (more than $4,000 but less
than $20,000 for the year 2004), damages are calculated according to the following formula:
Amount awarded = 1.25 x (amount assessed minus amount A) where A = $4,000. Provision is
made for the indexing of this figure each year.
7.2.4 New Zealand
The right to take a personal injuries action at common law is limited in New Zealand. New
Zealand operates an Accident Compensation Scheme which provides accident insurance for
all New Zealand citizens, residents, and temporary visitors to New Zealand, on a ‘no fault’
basis.69 In return people do not have the right to sue for personal injury covered by the
scheme, except for exemplary damages.70 The scheme provides compensation no matter who
is at fault without recourse to the courts. A personal injury under the legislation includes
physical injury, mental injury caused by a physical injury and mental or nervous shock after
sexual assault or abuse. It does not cover emotional effects. The scheme is funded by the
levying of premiums on all New Zealanders; the government pays the premiums of those not
in employment. The New Zealand system is thus radically different to that in Ireland.
69
www.acc.co.nz
Section 317(1) of the Injury Prevention, Rehabilitation and Compensation Act, 2001, provides that : “No
person may bring proceedings independently of this Act, whether under any rule of law or enactment, in any
court in New Zealand for damages arising directly or indirectly out of…personal injury covered by this Act…”
70
92
7.2.5 Canada
The system in Canada is also somewhat different to the system in Ireland as civil jury trials of
personal injuries actions still take place, whereas jury trial in respect of personal injury
actions has been abolished in Ireland.71 The right to a jury in Canada is, however, not always
availed of and may be restricted.72 As a result often a personal injury action will be heard by a
judge sitting alone, as in Ireland. The situation varies according to the jurisdiction. Nova
Scotia, Ontario and British Columbia have active civil jury lists. In British Columbia when
scientific investigation is involved a jury cannot try the case. 73 Jury hearing fees are also
charged in British Columbia, which must be paid in advance and may be prohibitive for some
litigants.
In respect of the assessment of damages, the Canadian Supreme Court in Andrews v. Grand
and Toy Alberta Ltd. (1978) 83 D.L.R (3d) 452 set a cap on the award of non-pecuniary
damages by imposing a rough upper limit of $100,000 (worth about $300,000 today). There
are no Guidelines such as those in England.
7.2.6 The United States
The use of juries in personal injuries actions is common in the United States of America.
However, there too the right can be waived and is often done so. In the United States of
America, statistics on jury damages awards are compiled by various institutions and
commercial reporters.74 By contrast judicial awards do not seem to be generally available.
71
Section 1 Courts Act, 1988.
For example The Jury Act, 1998 in Saskatchewan restricts the right to demand a jury in a personal injury case
to circumstances where the amount claimed is over £10,000.
73
See “The Future of Civil Jury Trials” and “Civil Jury trials: Assessing non-pecuniary damages and civil jury
reform” Mr. Justice John C. Bouck, available at www.cle.bc.ca
74
Including the U.S. Bureau of Justice Statistics, the Federal Administrative Office of the US Courts and the
National Centre of State Courts.
72
93
7.3.
Conclusions
While there are formal reports of personal injuries actions in publications, for example the
official reports in the Irish Reports, they are not extensive. The Committee favours the
structured collection and publication of relevant information about awards made by the courts
in personal injuries actions. In order that such information be of assistance it should provide
sufficient detail of the impact of the injury on the plaintiff both physically, mentally, in
relation to work, family life and leisure activities both up to the date of the accident and into
the future. It should also include relevant personal information relating to the plaintiff.
The Committee recommends that the Judicial Studies Institute consider how such information
be collected and published and also whether it might establish and publish guidelines for
awards as is done in other common law jurisdictions.
Finally, the Committee considers it important that steps are taken to achieve greater
consistency in the level of awards by different judges. The increased number of High Court
and Circuit Court Judges over the past two decades and the relatively low number of written
judgments in personal injuries cases has increased the risk of inconsistency in the level of
awards. The Committee believes that it should be permissible to make submissions to the
court in relation to previous comparable awards. To do this the information must be available
and, if necessary, rules of court amended.
7.4.
Recommendations

The Committee recommends that there be published information on awards of general
damages in personal injuries litigation.

The Committee recommends that the Judicial Studies Institute consider establishing a
Working Group to gather and publish such information.
94

The Committee recommends that resources be made available to such Working Group
and the Courts Service to enable the gathering, compilation and publication of the
relevant information.

The Committee recommends that the Rules of Court be amended to enable counsel to
being to the attention of the court the amount of awards of general damages in earlier
court decisions, and any relevant publication of the Judicial Studies Institute.
95
CHAPTER 8
RESOURCES
No matter how many new rules and regulations and strategic plans are made the system will
not be improved and developed unless it receives appropriate resources. The changes advised
by the Committee would involve increased funding of the courts. However, it would be a
relatively small financial investment for the benefit which would be achieved.
At present a very small proportion of personal injuries cases go to trial. However, litigants
have the right of access to the courts and the process available should be the dispensing of
justice in a speedy, efficient and effective manner.
The number of judges making determinations in personal injuries actions is relatively small.
A High Court judge is in charge of the personal injuries list. In Dublin there may be available
to hear ongoing cases another judge, or perhaps more, depending on availability. It is a small
proportion of the High Court work. High Court judges are required to hear cases in lists on
matters such as Personal Injuries, Bail, Bankruptcy, Chancery, Commercial, Common Law
Motions, Circuit Court Appeals, Family Law, Garda Compensation, Judicial Review, Probate,
Proceeds of Crime Act, Asylum, Admiralty, Solicitors Act, Medical Council, Nursing
Council, Dental Council, Extradition, European Arrest Warrants, The Hague Convention, The
Luxembourg Convention and Crime. In addition to the High Court list of personal injuries
actions, the High Court judges also go out of Dublin to hear personal injuries actions. Thus
during term there will be judges hearing cases in sessions in Cork, Galway, Limerick and
other locations.
In the High Court at present a small number of judges are able to dispose of relatively long
lists of personal injuries actions listed for trial both in Dublin and other venues by reason of
96
the high number of last minute settlements. If the procedural proposals herein are
implemented it is envisaged that the cases which may be settled will settle prior to being set
down for trial and a significantly higher number of cases listed for trial will require to be
determined by a judge. This will mean that cases listed for trial will more probably go to trial,
and this will require judges to hear the cases.
However, the judge is perhaps the least expensive part of the process. There also needs to be
court officials, court buildings, information technology, etc. There are important programmes
of development in the Court Service on Court Buildings, Information Technology, etc.
However, it is also essential that there be resources made available to develop legally trained
court officials to take part in the development programme of the courts. The future of
litigation involves case management. This, in turn, requires that there be resources to train
and develop court officials who may take an active part in modern case management.
It has been pointed out that there are fewer judges in Ireland per head of population than in
other European and Common Law countries75.
The Committee recommends the appointment of a sufficient number of judges to enable
personal injuries litigation proceed justly in an efficient and effective manner.
Historically, there has not been active case management in the courts. It is of importance to
the litigants, the courts and the State76, that cases proceed within a reasonable time. This
requires financial resources.
Dublin University Law Society, “Judges for the Future”, 1 st March, 2004, speech by The Hon. Mrs. Justice
Susan Denham.
76
Price and Lowe v. United Kingdom App. No. 431885/98. The European Court of Human Rights held that the
delay between the issue of a writ and the first hearing was a breach by the State of Article 6.1 of the Convention.
75
97
The Committee recommends that resources be made available for court officials and to train
and develop court officials who may take an active part in modern case management.
98
CHAPTER 9
CONCLUSION
In answer to the specific matters in the request from the Minister for Justice, Equality and
Law Reform, (see Chapter 1.3) the Committee concludes:

The present system of practice and pleadings in personal injuries litigation in the High
Court is not appropriate to modern personal injuries litigation and should be changed:
see the Proposed Procedural Changes in chapter 5.

This change would be done most effectively by Rules of Court: see draft Rules of
Court for consideration by the Superior Court Rules Committee.

The Committee advises that the plaintiff and defendant should verify on oath the
contents of the pleadings. The provision as to verification on oath, as distinct from the
provisions creating criminal offences, should be provided by way of rules of court: see
chapter 5.12.

The Committee has provided in the proposed procedural changes a system which
requires parties to cooperate, provide information early in the proceedings and which
should provide encouragement and incentive for early settlement where appropriate.

The Committee has already indicated to the Minister its support for the principle of
making litigants liable for fraudulent and exaggerated claims.77

The Committee does not consider that the present procedures provides sufficient
encouragement to litigants to avoid litigation in the first place and to arrive at an early
settlement of litigation, consequently it has made the recommendations referred to
above.

The Committee advises and has advised78 that pre-litigation mediators should not be
made mandatory.
77
Commentary on the General Scheme of Civil Liability and Courts Bill by the Committee on Court Practice
and Procedure, November, 2003.
78
Ibid.
99

The Committee advises that steps be taken to publish information as to the level of
awards of general damages: see Chapter 7.
100
CHAPTER 10
RECOMMENDATIONS
Procedural Changes
1.
The Committee recommends that the Rules of Court on personal injuries litigation be
reviewed.
2.
The Committee recommends that the Rules of Court be amended to enable a just,
efficient, effective system which promotes early co-operation and early exchange of
information between parties and early settlement.
3.
The Committee recommends the introduction of case management of personal injuries
litigation by the court, in appropriate cases.
4.
The Committee has drawn up suggestions for procedural changes in the High Court,
which are set out in Chapter 5.
The following changes are envisaged:
(i)
Court Rules should have a more realistic timetable for the different steps in
pre-trial procedures and should then be strictly enforce.
(ii)
The parties should lose control of the pace of the litigation and the Courts
(through Judges, Masters of the High Court and County Registrars) should
case manage and be pro active in moving the case on.
(iii)
Pre-trial meetings to narrow the issues should be compulsory in appropriate
cases.
(iv)
Pleadings should be realistic and give greater detail.
(v)
Pre-trial meetings should establish where written reports can be substituted for
oral evidence.
(vi)
Notice to admit should be used more widely.
101
New Rules
5.
The Committee recommends that the Rules of the Superior Courts, on the practice and
procedure of personal injuries litigation, be amended. Draft rules are attached in Appendix D
for the assistance of the Superior Courts Rules Committee.
Costs
6.
Judges should be given powers to determine the amount of costs in appropriate cases.
7.
Costs of unnecessary expert witnesses should be disallowed.
8.
The taxation of costs should be modernised.
9.
Parties using procedures to enhance costs rather than advance the case should suffer a
penalty, in costs or otherwise.
10.
The Committee recommends that there be public information available on the cost of
litigating personal injuries actions.
11.
The Committee received many submissions stating that the cost of litigating personal
injuries actions is very high. Certainly there is a perception that this is the case. The
Committee recommends that the Minister establish an independent study, to include all
claims, not just those litigated, as to the legal costs in personal injuries actions and how costs
could be reduced. This inquiry should be carried out with the full involvement of the Law
Society and the Bar Council. This should be done as a matter of urgency.
12.
The Committee recommends that there be transparency in the litigating of personal
injuries actions and that details of the potential costs be available to parties at all times.
13.
The Committee recommends that s. 68 of the Solicitors Amendment Act, 1994, be
enforced and developed. This may be done by a practice direction requiring that at the
beginning of a case a copy of the letter be given to the court. Equally, there should be a
practice whereby a schedule of fees should be provided by counsel, through the solicitor, to
the clients, as to the potential fees he may charge in the case.
102
14.
The Committee recommends that the Taxing Masters consider a system of publishing
(through the Courts Service) a range of taxed Bills of Cost with no identifying information as
to the parties.
Information on Awards
15.
The Committee recommends that there be published information on awards in general
damages made in personal injuries litigation.
16.
The Committee recommends that the Judicial Studies Institute consider establishing a
Working Group to gather, compile and publish such information.
17.
The Committee recommends that resources be made available to such a Working
Group and the Courts Service to enable the gathering of relevant information and its
compilation.
18.
The Committee recommends that the Rules of Court be amended to enable counsel to
bring to the attention of the court awards of general damages in earlier court decisions and,
when completed, any relevant publication of the Judicial Studies Institute.
Video Conferencing
19.
The Committee recommends the development of videoconferencing technology in as
many courts as possible to facilitate the giving of evidence, especially expert evidence, from
witnesses in other locations in the State and internationally.
Information Technology
20.
The Committee recommends greater use of information technology in the courts and
by the litigants in personal injuries litigation.
103
Transferring Jurisdiction
21.
Judges should be pro-active in sending a case to a more suitable jurisdiction, not
reactive as at present. There should be more penalties for proceedings in a higher court than
is necessary and those penalties should be more vigorously applied. There should be a short
and inexpensive procedure to move a case from one jurisdiction to another.
Resources
22.
The Committee recommends the appointment of a sufficient number of judges to
enable personal injuries litigation proceed justly in an efficient and effective manner.
23.
The Committee recommends that resources be made available to the Courts Service
for the appointment of court officials, and to train and develop court officials, who may take
an active part in modern case management.
104
APPENDIX A
Advertisement
Review of Practice and Procedure in relation to Personal Injuries Litigation
INVITATION FOR WRITTEN SUBMISSIONS
The Minister for Justice, Equality and Law Reform has requested the Committee on Court
Practice and Procedure to examine all aspects of practice and procedure relating to personal
injuries litigation. The Committee will consider whether the present system of practice and
pleadings is appropriate to modern personal injuries litigation.
The specific questions which the Committee proposes to consider include:







Whether the plaintiff should be required to swear an affidavit verifying the facts relied
on to ground any claims against the defendant;
The extent to which a defendant should be required to put forward an affirmative
defence which does not simply traverse the plaintiff’s case and put the plaintiff on
proof;
The extent to which procedures such as Notices for Particulars could be dispensed
with;
Whether and to what extent litigants engaged in making fraudulent and exaggerated
claims should be penalised;
Whether present procedures provide a sufficient encouragement to litigants
(a) to avoid litigation in the first place and
(b) to arrive at an early settlement of any litigation so commenced;
Whether pre-litigation mediation might be made mandatory;
The extent to which standard tariffs for routine injuries could be introduced as a guide
for a judge in order to avoid discrepancies in levels of damages awards.
The Committee invites written submissions which should be forwarded on or before the 31st
day of January 2003 to:
The Secretary, Committee on Court Practice and Procedure,
c/o The Principal Registrar, The High Court, Four Courts, Dublin 7.
105
APPENDIX B
WRITTEN SUBMISSIONS WERE RECEIVED FROM THE
FOLLOWING PERSONS BY THE COMMITTEE ON COURT
PRACTICE AND PROCEDURE IN THE INQUIRY TO EXAMINE ALL
ASPECTS OF PRACTICE AND PROCEDURE RELATING TO
PERSONAL INJURIES LITIGATION
1.
Newman Solicitors
2.
Mr. Terence E. Dixon
3.
Bríd Mimnagh & Associates
4.
The Dublin Solicitors Bar Association
5.
Independent Mediation Services
6.
Mediators Institute Ireland
7.
Mr. Michael Williams
8.
P & I Shipping Services Ltd.
9.
Medical Protection Society
10.
Ernest J. Cantillon & Co., Solicitors
11.
Nora Dillon
12.
Dublin City Council, Law Agent, Litigation Section
13.
Law Society of Ireland
14.
The Bar Council
15.
Department of Enterprise, Trade & Employment
16.
Motor Insurance Advisory Board
17.
Irish Insurance Federation
18.
Edmund Honohan, S.C., Master of the High Court
19.
Hayes & Sons, Solicitors
20.
Melvyn Hanley, Solicitors
21.
Mr. Seamus Lantry
22.
John Lanigan & Nolan, Solicitors, Mr. Seamus Brennan
23.
Association of Personal Injury Lawyers (Ireland)
24.
Mr. John Fitzpatrick, Sheriff of Dublin County
25.
The Honourable Mr. Justice Richard Johnson
26.
Irish Hospital Consultants Association
27.
Irish Insurance Federation
28.
Courts Service
106
APPENDIX C
ORAL SUBMISSIONS WERE MADE BY THE FOLLOWING
TO THE COMMITTEE ON COURT PRACTICE AND PROCEDURE IN
THE INQUIRY IN RELATION TO
PERSONAL INJURIES LITIGATION
1.
Bar Council of Ireland
Mr. Conor Maguire, S.C.
Mr. Hugh Mohan, S.C.
Mr. Carroll, D.G.
17/02/03 and 28/03/03
2.
Alliance for Insurance Reform
Mr. Gerry McCaughey
Mr. Barry English
Ms. Catherine Logan
17/02/03
3.
Law Society of Ireland
Mrs. Geraldine Clarke – President
Mr. Ken Murphy, D.G.
Mr. Roddy Bourke – Chairman Litigation Committee
03/03/03
4.
Attorney General’s Office
Ms. Christina O’Rourke
03/03/03
5.
Personal Injuries Assessment Board
Ms. Dorothea Dowling
28/03/03
6.
Courts Service
Mr. Noel Rubotham
Mr. Diarmuid MacDiarmada
Mr. Ciaran Kelly – Principal Registrar
28/03/03
7.
Insurance Federation of Ireland
Mr. Michael Kemp
Mr. Hogan
Mr. John Graham
12/05/03
8.
Bar Council of England
Mr. Matthias Kelly – Chairman
24/11/03
107
APPENDIX D
Draft Rules for Proposed Procedural Changes in High Court
Order ….
Personal Injuries Proceedings
I. Preliminary
Definitions
1. In this Order unless the context or subject matter otherwise requires –
“personal injuries proceedings” means an action for the recovery of damages,
in respect of a wrong, for—
(a) personal injuries,
(b) both such injuries and damage to property (but only if both have been caused by
the same wrong), or
(c) under section 48 of the Civil Liability Act of 1961,
but shall not include an application for compensation under the Garda Síochána
(Compensation) Acts 1941 and 1945, or an action where the damages claimed include
damages for false imprisonment or trespass to the person;79
and “proceedings” shall be interpreted accordingly;
“personal injuries” includes any disease and any impairment of a person’s physical or
mental condition80;
“personal injuries summons” means a plenary summons by which personal injuries
proceedings are instituted in accordance with rule 3 of this Order;
“Proper officer” means:
(a) a registrar of the High Court assigned, in consultation with the President of
the High Court, by the officer for the time being managing the Central Office or
(b) any other principal officer within the meaning of Part 1 of the Court
Officers Act, 1926, assigned by the President of the High Court
to carry out the duties and functions required by any of the provisions of this Order to
be performed by the proper officer.
Application of this Order
2. (1) The provisions of this Order shall apply to personal injuries proceedings.
This is a revised definition, to coincide with the definition of “personal injuries action” contained in section
2(1) of the Civil Liability and Courts Bill.
79
80
This follows the definition of “personal injury” contained in section 2 of the Civil Liability Act, 1961.
108
(2) Save where otherwise expressly provided by this Order, in the event that any conflict
shall arise between the provision of any rule of this Order and any other provision of these
Rules, the provision of the rule of this Order shall, in respect of personal injuries
proceedings, prevail.
II. Commencement of Proceedings81
Personal injuries summons
3. Personal injuries proceedings shall be instituted by a plenary summons82, which shall be in
the Form No. 1 in Appendix XX, and shall be referred to as a personal injuries summons.
4. Save where otherwise expressly provided by this Order, the provisions of these Rules
which apply to a plenary summons shall, with appropriate modifications, apply to a personal
injuries summons.
5. (a) A personal injuries summons shall specify:
(i) the plaintiff’s name, the address at which he or she ordinarily resides and his or her
occupation,
(ii) the personal public service number allocated and issued to the plaintiff under section
223 (inserted by section 14 of the Act of 1998) of the Act of 1993,
(iii) the defendant’s name, the address at which he or she ordinarily resides (if known to
the plaintiff) and his or her occupation (if known to the plaintiff).83
(b) Where the proceedings are being instituted for the benefit of dependants of a deceased,
the personal injuries summons shall specify the date of birth and Personal Public Service
Number of the deceased.
(c) Where a plaintiff or deceased, as the case may be, has not been issued with a Personal
Public Service Number, this shall be stated in the personal injuries summons.
(d) Where the proceedings are being instituted for the benefit of dependants of a deceased,
the names, addresses and date of birth of all such dependants shall be stated in the personal
injuries summons.84
(e) Where the plaintiff alleges personal injuries, the plaintiff shall attach to the personal
injuries summons a written report of a medical practitioner who examined or treated the
plaintiff as to the personal injuries in respect of which damages are sought, and when the
personal injuries summons is being served on the defendant a certified copy of such report (or
if more than one, reports) shall be served on the defendant together with the personal injuries
summons.85
6. Where the report or reports referred to in rule 5(e) of this Order have not been attached to
the personal injuries summons and certified copies thereof served on the defendant in
81
The requirement of a pre-proceedings letter, since it precedes court proceedings and may result in none being
issued, is, it is suggested, more appropriate for primary legislation.
82
Order 1, rule 2 of the Rules at present provides that “An originating summons for the commencement of
plenary proceedings with pleadings and hearings on oral evidence (in these Rules called a plenary summons)
shall (save in admiralty proceedings) be in the Form No.1 in Appendix A Part I”.
83
This is a requirement of Head 9 (2)(a) to (c) of the Courts and Civil Liability Bill, 2004. By virtue of Order
125 rule 1, words importing the singular are to be construed as importing the plural, and vice versa.
84
This incorporates the requirement in Par. 5.1 of the Practice Direction on Part 16 of the English Civil
Procedure Rules (CPRs).
85
See recommendation at par.5.6.1. This is similar to the requirement in Par. 4.3 of the Practice Direction on
Part 16 of the CPRs.
109
accordance with that rule, the Court, upon the application of the defendant on notice to the
plaintiff, the defendant having entered an appearance, may:
(a) order the action to be dismissed accordingly;
(b) order the action to be stayed pending compliance by the plaintiff with such
conditions as the court may specify, or
(c) order the plaintiff to lodge the report (or if more than one, the reports) and serve
certified a certified copy (or copies) thereof on the defendant within such period as the
court may specify,
and may make such order as to the costs of the application or such further or other order as
the Court shall think just, and in addition may take such default into account when
determining the costs of the action.86
Indorsement of claim
7. The indorsement of claim on a personal injuries summons shall be entitled “Indorsement of
Claim”87 and shall
(a) specify, in a detailed and comprehensive manner (i) the circumstances in which the injury is alleged to have been suffered by the
plaintiff or (where the proceedings are being instituted for the benefit of the dependants
of a deceased) the deceased, as the case may be;
(ii) the negligence, breach of statutory duty, or other civil wrong for which the
defendant or (where the defendant is sued as a personal representative) the deceased is
alleged to be liable;
(iii) the nature and extent of the injury alleged to have been suffered by the plaintiff
or deceased, as the case may be, and the consequences of that injury for the plaintiff
alleged; and
(iv) particulars of the material facts on which the plaintiff relies, and
(b) contain a schedule of particulars of all loss and damage, past and future 88, in respect of
which damages are sought, including any items of special damage;89
8. Where the indorsement of claim does not contain the information prescribed by rule 6 of
this Order, the Court, upon the application of the defendant on notice to the plaintiff, the
defendant having entered an appearance, may:
(a) order the action to be dismissed accordingly;
(b) order the action to be stayed pending compliance by the plaintiff with such
conditions as the court may specify, or
(c) order the plaintiff to provide any outstanding or additional information, verified on
oath in like manner as is prescribed in this Order for a personal injuries summons,
within such period as the court may specify,
86
See recommendation at par. 5.6.1B of the draft Chapter.
The indorsement of claim on a plenary summons is at present entitled “General Indorsement of Claim” (Order
4, rule 2). Given the particularised nature of the indorsement on the personal injuries summons, the reference to
“general” would not be appropriate.
88
This incorporates the requirement in Par. 4.2 of the Practice Direction on Part 16 of the CPRs.
89
See recommendation at par. 5.6.1 A(b) of the Chapter. Order 19(5) at present provides that “[i]n all cases
alleging a wrong within the meaning of the Civil Liability Acts, 1961 and 1964, particulars of such wrong, any
personal injuries suffered and any items of special damage shall be set out in the statement of claim or
counterclaim…”.
87
110
and may make such order as to the costs of the application or such further or other order as
the Court shall think just, and in addition may take such default into account when
determining the costs of the action.90
9.(1) Further and better particulars of any matter alleged in the indorsement of claim on the
personal injuries summons requiring particulars may at any time be ordered to be delivered by
the Court and, at the case management conference, by the proper officer, upon such terms, as
to costs and otherwise, as may be just.
(2) Before making application in accordance with sub-rule 1 of this rule, a defendant shall,
within twenty-one days of service upon him of the personal injuries summons, by notice in
writing request such particulars from the plaintiff. The costs of each letter and of any
particulars delivered pursuant thereto shall be allowable on taxation. In dealing with costs of
any application for particulars, the provisions of this paragraph shall be taken into
consideration by the Court.
(3) Where a request for particulars has been made by a defendant in accordance with sub-rule
2 of this rule, the plaintiff may, within twenty-eight days of receipt of the request, or such
further period as the parties may agree or the Court or the proper officer may, on application
made on notice to the defendant, allow, deliver such particulars. Particulars shall not be
ordered to be delivered unless the Court shall be of opinion that they are necessary or
desirable to enable the defendant to plead or ought for any other special reason to be so
delivered.91
10. (1) Every personal injuries summons shall be served on the defendant within twenty-eight
days from the date on which it has been issued unless, upon application made by the plaintiff
ex parte to the Court within that period, the Court has extended the time limited for service.
(2) A personal injuries summons shall cease to be in force upon the expiry of the period
for service on the defendant prescribed in sub rule 1 of this rule, or such further period as the
Court may have allowed in accordance with that sub rule.
Appearance
11. An appearance to a personal injuries summons shall be entered within ten days after the
service of the summons, exclusive of the day of service, unless the Court shall otherwise
order.
III. Medical examination
12. (1) Where the defendant has not been afforded by the plaintiff an opportunity to have the
plaintiff examined by a medical practitioner nominated by the defendant, whether prior or
subsequent to the commencement of proceedings, or where the defendant has not availed of
any such opportunity offered, the defendant at any time prior to the period appointed during
which the proceedings will be listed for trial92 and, by agreement of the parties or with leave
of the Court or the proper officer, at any time thereafter until the trial of the proceedings, may
request the plaintiff in writing to make himself available for such examination.93
(2) Where the plaintiff, having been requested by the defendant to make himself available for
examination in accordance with sub rule 1 of this rule, fails to make reasonable efforts to do
90
See recommendation at par. 5.
See recommendation at par.5.6.4 (b). The rule follows the model of Order 19(7) of the Rules of the Superior
Courts.
92
This is the “trial window” referred to in Chapter 5.
93
See recommendation at par. 5.13.
91
111
so, the defendant may apply to the Court on notice to the plaintiff to dismiss the action, with
costs, and on the hearing of such application the Court may order the action to be dismissed
accordingly, or may make an order requiring the plaintiff to make himself available for
examination within such period as the Court may specify, with costs of the application to the
defendant, and may take such default into account when determining the costs of the action.
IV. Disclosure
13. (1) Upon the request of a defendant made in writing
(a) at any time prior to the period appointed during which the proceedings will be
listed for trial or,
(b) where the parties consent or where the Court or the proper officer, upon the
application of the defendant on notice to the plaintiff, gives leave at any time prior to
the trial of the proceedings,
a plaintiff must, within one month or such further period as the Court or the proper officer,
upon the application of the plaintiff on notice to the defendant, may allow, but in any event
not later than two weeks prior to the trial date, provide:
(a) particulars of any other claims for damages for personal injury which the plaintiff
has made previously and details of the damages awarded under each such claim or,
where such a claim was settled prior to trial, the amount for which it was settled;
(b) where relevant to the instant personal injuries proceedings, particulars of the
plaintiff’s medical history and the identity of persons by whom the plaintiff has been
treated;
(c) where damages for loss of earnings are sought, particulars of any income, benefit
or assistance received in the period of three years immediately prior to the date on
which the right of action the subject-matter of the proceedings arose;
(d) such documentary evidence as the plaintiff may be entitled to procure from the
Revenue Commissioners or the Department of Social and Family Affairs as to any
such income, benefit or assistance received.94
(2) Where a plaintiff fails to comply with a request made in accordance with sub-rule 1 of this
rule, the Court, upon the application of the defendant on notice to the plaintiff, may:
(a) order the action to be dismissed;
(b) order the action to be stayed pending compliance by the plaintiff with such
conditions as the court may specify, or
(c) order the plaintiff to provide any outstanding or additional information, verified on
oath in accordance with Part VI of this Order, within such period as the court may
specify,
and may make such order as to the costs of the application or such other order as the Court
shall think just, and in addition may take such default into account when determining the costs
of the action.95
14. (1) Upon the request of a plaintiff made in writing
(a) at any time prior to the period appointed during which the proceedings will be
listed for trial or,
94
95
See recommendations at par. 5.13.
See recommendation in Chapter 5 and Head 10(3) ands (4) of the Civil Liability and CourtsBill, 2004.
112
(b) where the parties consent or where the Court or the proper officer, upon the
application of the plaintiff on notice to the defendant, gives leave at any time prior to
the trial of the proceedings,
a defendant must, within one month or such further period as the Court, upon the
application of the plaintiff on notice to the defendant, may allow, but in any event not later
than two weeks prior to the trial date, provide particulars of any other claims for damages for
personal injury made against the defendant previously arising out of similar circumstances at
the same or a similar location and details of the damages awarded under each such claim or,
where such a claim was settled prior to trial, the amount for which it was settled. 96
(2) Where a defendant fails to comply with a request made in accordance with sub-rule 1 of
this rule, the Court, upon the application of the plaintiff on notice to the defendant, may:
(a) order the defendant’s defence, if any, to be struck out, and the defendant placed in
the same position as if he had not defended97; or
(b) order the defendant to provide any outstanding or additional information, verified on
oath in accordance with Part VI of this Order, within such period as the court may
specify,
and may make such order as to the costs of the application or such other order as the Court
shall think just, and in addition may take such default into account when determining the costs
of the action.98
V. Pleadings
15. No statement of claim shall be deliverable by the plaintiff.99
16. Save where otherwise expressly provided by this Order, the provisions of these Rules
which apply to a statement of claim shall, with appropriate modifications, apply to a personal
injuries summons.
17. Every pleading shall specify, in a detailed and comprehensive manner, particulars of the
material facts on which the party pleading relies, and of any matter for proof of which the
party intends to rely upon the evidence of an expert witness, and shall specify any point of
law which the party intends to raise.100
18. (1) A defence shall be delivered by the defendant within one hundred and twenty days
from the entry of appearance, and the defendant shall within seven days of delivery notify the
proper officer in writing that he has delivered his defence.101
96
See recommendation in Chapter 5.
This adopts the approach open to the court in the event that a defendant fails to comply with an order to
answer interrogatories or make discovery: see Order 31, rule 29.
98
See recommendation at Chapter 5.
99
The detailed statement of claim would, under the regime proposed, be included in the indorsement of claim in
the personal injuries summons.
100
This rule reverses the current requirements as to pleadings, which are required to be “as brief as the nature of
the case will admit” (Order 19 rule 1) and to contain only “a statement in a summary form of the material facts
on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which
they are to [be] proved” (Order 19 rule 3). Order 25 rule1 provides that a “party shall be entitled to raise by his
pleading any point of law…”
101
See recommendation at par. 5.8 of Chapter 5.
97
113
(2) Where the Court has made an order in pursuance of [rule 12(2)] of this Order requiring a
plaintiff to make himself available for examination by a medical practitioner, or an order in
pursuance of [rule 13(2)] of this Order directing a plaintiff to provide outstanding or
additional information as to his indorsement of claim, the defence shall be delivered by the
defendant within one hundred and twenty days from the date of receipt of the information, or
the conducting of the examination102, as the case may be.
19. (1) A defendant shall, in respect of each averment of fact contained in the endorsement of
claim to the personal injuries summons, state in his defence whether he
(a) agrees
(b) disputes, or
(c) is unable to agree or dispute,
the averment of fact concerned, and shall specify those averments of fact of which he requires
proof.
(2) where a defendant disputes any such averment of fact, the defence shall
(a) identify the averment disputed and specify the defendant’s reasons for so disputing;
and
(b) where the defendant alleges a version of events at variance with that alleged by the
plaintiff, set out the defendant’s version of events. 103
(3) A defendant shall state in his defence whether he
(a) agrees
(b) disputes, or
(c) is unable to agree or dispute
the matters contained in the report of the medical practitioner attached to the personal injuries
summons.
(4) where a defendant disputes any part of the report of the medical practitioner referred to
in sub-rule 3 of this rule, the defence shall identify the part or parts disputed and specify the
defendant’s reasons for so disputing, and
(5) where a defendant has obtained a report of a medical practitioner on which he intends to
rely, the defendant shall attach that report to his defence.104
(6) a defence shall contain a counter-schedule which shall specify, in respect of particulars of
all loss and damage, past and future, including any items of special damage contained in the
schedule to the personal injuries summons, which of those particulars or items the defendant
(a) agrees
(b) disputes, or
(c) is unable to agree or dispute,
and where any items are disputed, the defendant in the counter-schedule shall furnish
alternative amounts, where appropriate.105
20. A plaintiff shall deliver his reply, where necessary, within fourteen days of the delivery of
the defence.106
21. No pleading, once filed, shall be amended save where it is sought to amend a pleading as
to an issue of liability, and the Court, on the application of a party by motion on notice to the
102
This assumes that only one examination will be provided for.
See recommendation at par. 5.6.2. This rule reflects the requirement in rule 16.5 of the CPRs as to the
contents of a defence.
104
This incorporates a requirement similar to that in Par. 12.1 of the Practice Direction on Part 16 of the CPRs.
105
This incorporates a requirement similar to that in Pars. 12. 2 of the Practice Direction on Part 16 of the CPRs.
Order 21, rule 6 of the Rules provides that “[n]o denial or defence shall be necessary as to damages claimed or
their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted” – rule 16(1) as
proposed would, in relation to personal injuries actions, displace Order 21, rule 6.
106
See recommendation at par. 5.6.3.
103
114
other party, in the exceptional circumstances of the case to be expressed in the order, and on
such terms as to the payment of costs as it deems just, directs.107
VI. Verification of facts alleged.
22. Every personal injuries summons, and every pleading, reply to request for particulars or
other document issued, filed or delivered containing statements of fact shall be verified on
oath as to the facts alleged, by the plaintiff, defendant or other party on whose behalf it is
issued, filed or delivered, and the form of oath of verification shall be in the Form 2 of
Appendix XX and shall be incorporated in the summons or other document in question.108
VII. Case Management.
Case management conference109
24. (1) A case management conference shall, where the proper officer considers it
appropriate, be held not less than sixty days from the date of delivery of the defence, and the
proper officer shall notify the parties in writing of the date appointed for the conference at
least twenty-one days prior to the date appointed for the conference.110
(2) The case management conference shall be chaired and regulated by the proper officer.
(3) Any decision made or direction given by the proper officer at the case management
conference may be appealed to the Court by a party affected.
(4) The case management conference shall be attended by the solicitors appearing for each
of the parties or, where a party, not being a body corporate, is not represented by a solicitor,
by the party himself. Where the proper officer considers it necessary or desirable, he may
direct that party, or, where the party is a body corporate, the proper officer of a party, attend
the case management conference, notwithstanding the fact that the party may be represented
by a solicitor.
(5) Each solicitor attending the case management conference shall ensure that he is
sufficiently familiar with the proceedings, and has authority from the party he represents to
deal with any matters which are likely to be dealt with at the conference.
(6) Where a party is represented by counsel, such counsel may attend the case
management conference, but the attendance of only one of such counsel will be allowed in the
taxation or fixing of costs.
(7) Where at the case management conference it appears to the proper officer that the
same cannot conveniently proceed by reason of the failure of a solicitor or counsel to be
properly prepared for the conference, the proper officer may award costs against such solicitor
or counsel, or may disallow the costs of such solicitor, or fees of such counsel, as the case
may be.
25. (1) Immediately after receiving notice of the delivery of the defence, the proper officer
shall send to each of the parties a case management questionnaire in Form 3 of Appendix XX.
Where a case management conference has been directed in accordance with rule 23(1), each
107
See recommendation at par. 5.6.4 (a).
See recommendation at par. 5.12.
109
See par. 5.6.2.
110
Proper Officer may fix a date for Case Management Conference – see par. 5.6.2.
108
115
party shall, not later than three clear days prior to the case management conference, lodge the
case management questionnaire, duly completed, with the proper officer.
(2) Where a case management conference is not directed to be held, the proper officer
shall, upon receipt of the case management questionnaires, appoint a period during which the
proceedings will be listed for trial.
(3) The decision of the proper officer appointing the period referred to in sub-rule 2 of this
rule may be appealed to the Court by a party affected.
26. The purpose of the case management conference shall be to:
(a) establish what steps remain to be taken to prepare the case for trial, the likely length
of the trial and the arrangements, if any, for witnesses, and any other arrangements
which require to be made for the trial;
(b) Appoint a period during which the proceedings will be listed for trial.111
27. At the case management conference, or any adjournment thereof, the proper officer, for
the purpose of ensuring that the proceedings advance to trial in a manner which is just,
expeditious and likely to minimise the costs of the proceedings, may
(a) fix a timetable for the completion of preparation of the case for trial, and for that
purpose adopt any proposed timetable agreed by the parties if satisfied that it is reasonable
and
(b) give directions for or in respect of one or more of the following matters:112
(i) the exchange of expert evidence;
(ii) the raising of questions for answer by expert witnesses;
(iii) the nomination of joint experts;
(iv) the fixing of a statement of issues;
(v) upon the application of one or more of the parties, of the proper officer’s own
motion or at the the Court’s direction, the trial separately of particular issues, and
any directions consequential thereto;
(vi) the disclosure or discovery of documents;
(vii) the delivery of additional particulars of injuries or of loss or of medical reports;
(viii) where an offer has been made by the defendant and accepted by the claimant in
that behalf, the payment, within such period as the parties have agreed, of a sum or
sums of money by the defendant to the plaintiff in satisfaction of a specified item of
special damages, or of general damages claimed in the proceedings;
(ix) the issuing of third party notices; and
(x) such other matters and steps as the proper officer shall deem appropriate for the
purpose of ensuring that the case proceeds to trial in an expeditious manner.
28. (1) Not less than four weeks prior to the commencement of the period referred to in [subrule 2 of rule 25] or [paragraph (b) of rule 26], as the case may be, the parties or their
representatives shall attend before the proper officer for the purpose of the fixing by the
proper officer of a date for the trial.
(2) Once a date has been fixed for the trial of proceedings, the trial date shall not be changed
save where the Court, on the application of a party by motion on notice to the other party, in
the exceptional circumstances of the case to be expressed in the order, and on such terms as to
the payment of costs, directs.
111
112
Rule 29.2 of the CPRs provides that the court shall fix the trial date or trial period “as soon as practicable”.
See the powers listed at par. 5.11.
116
VIII. Evidence
Expert witnesses
29. The proper officer or the Court may direct that expert witnesses shall consult with each
other for the purpose of (a) identifying the issues in respect of which they have given or are to give evidence;
(b) where possible, reaching agreement on those issues, and
(c) considering any matters which the Judge may direct them to consider,
and may require that the expert witnesses record in a memorandum to be jointly submitted by
them to the proper officer and delivered by them to the parties, (a) the issues upon which they
agree; (b) the issues upon which they disagree and the reasons therefore.
IX. Mediation, conciliation and arbitration
30. Where the Court, at any time prior to the completion of exchange of pleadings/ fixing of a
date for trial, whether on the application of the parties, of its own motion, considers it
desirable or appropriate that proceedings, or any issue therein, be referred to a process of
mediation, conciliation or arbitration, it may adjourn the proceedings for such time as it
considers appropriate to enable the parties to avail of one or more of such processes.
31. Where proceedings, or any issue therein, have been referred to a process of mediation,
conciliation or arbitration in accordance with rule 27, the Court may extend the time for
compliance by the parties or any of them with any provision of these Rules or any order of the
court.
117
APPENDIX E
No. 1.
PERSONAL INJURIES SUMMONS.
O. XX r. XX
_________
THE HIGH COURT.
20…. No……
Between
A.B.,
and
C.D.,
Plaintiff,
Defendant.
To the Defendant
of
in the County of
This personal injuries summons requires you to enter an appearance in person or by solicitor
in the Central Office, Four Courts, Dublin in the above action within ten days after the
summons has been served on you (exclusive of the day of such service).
And TAKE NOTICE that if you do not enter an appearance the plaintiff may proceed in this
action, and judgment may be given in your absence.
BY ORDER,
Chief Justice of Ireland,
the
day of
two thousand ……………………….
N.B.—This summons is to be served within twenty-eight days from the date last mentioned,
unless the time for service has been extended by the Court.
The defendant may appear to this summons by entering an appearance either personally or by
solicitor at the Central Office, Four Courts, Dublin.
INDORSEMENT OF CLAIM.
The plaintiff's claim is as follows (add additional sheets if necessary):113
113
The indorsement of claim should:
(a) specify, in a detailed and comprehensive manner -
118
SCHEDULE OF PARTICULARS OF ALL LOSS AND DAMAGE,
PAST AND FUTURE
(add additional sheets if necessary)
ITEMS OF SPECIAL DAMAGE
(add additional sheets if necessary)
(Signed)
This summons was issued by the plaintiff
as follows:
whose personal details are
1. Plaintiff’s address:
(state address accurately)
2. Plaintiff’s occupation:
3. Plaintiff’s date of birth:
Day:
Month
Year
4. Plaintiff’s Personal Public Service Number:
(If the Plaintiff has not been issued with a Personal Public Service Number, this must be
stated)
5. The plaintiff’s address for service, if different from the plaintiff’s address mentioned
above, should be stated here:
This summons was issued by the plaintiff
OR
This summons was issued by
whose registered place of business is
, solicitor for the plaintiff,
,
INDORSEMENT OF SERVICE
on the defendant
day of
Indorsed the
day of
(Signed)
This summons was served by me at
on
day the
, 19
19 .
(Address)
(i) the circumstances in which the injury is alleged to have been suffered by the plaintiff or (where the
proceedings are being instituted for the benefit of the dependants of a deceased) the deceased, as the case
may be;
(ii) the negligence of or breach of statutory duty 113 by the defendant113 or (where the defendant is sued as
a personal representative) the deceased, in consequence of which the injury is alleged to have been suffered;
(iii) the nature of the injury alleged to have been suffered by the plaintiff or deceased, as the case may be,
and the consequences of that injury for the plaintiff or [ deceased / dependants of the deceased ]; and
(b) contain a schedule of particulars of all loss and damage, past and future 113, in respect of which damages
are sought, including any items of special damage. (Order XX, rule 7, Rules of the Superior Courts)
119
No. 2.
AFFIDAVIT OF VERIFICATION
O. XX r. XX
_________
I, A.B. v. (Plaintiff or Defendant as the case may be) in the above entitled
proceedings, make oath and say as follows:
1. The contents of the (personal injuries summons, defence, reply etc. – as the case
may be) to the extent that they relate to my own acts and deeds are true, and to the
extent that they relate to the acts and deeds of any other person, I believe to be true.
2. I fully understand that it is an offence knowingly to make a statement that is false or
misleading in any material respect.
120
No. 3.
CASE MANAGEMENT QUESTIONNAIRE
(PERSONAL INJURIES PROCEEDINGS).
O. XX r. XX
_________
THE HIGH COURT.
20…. No……
Between
and
A.B.,
Plaintiff,
C.D.,
Defendant.
1. If you are, or are representing, the plaintiff , indicate below 114
(a) the nature of the claim:
(b) particulars of special damages ascertained and claimed to date:
2. Identify the matters which are in issue in the proceedings:
114
Continue answers on separate page(s) if necessary
121
3. Identify the matters (if any) for proof of which you intend to rely upon the evidence of
expert witnesses:
4. List on the Schedule attached the witnesses you intend to call (identify expert witnesses
where appropriate)
5. Are there any special facilities you will require at the trial?
6. Give your estimate of the length of time the trial will take:
SCHEDULE OF WITNESSES
Signed ___________________________
Plaintiff/Solicitor for the Plaintiff
Defendant/ Solicitor for the Defendant115
115
Delete as appropriate
122
APPENDIX F
In the light of the considerations relating to the Circuit Court, which are outlined in paragraph
5.16 of the Report, the Committee recommends that any changes arising therefrom and which
are necessary to implement the recommendations of the Report, should be done by way of
Rules of Court to be drawn up by the Circuit Court Rules Committee.
123
APPENDIX G
Draft Rules for proposed procedural changes in the District Court.
1.
The Civil Summons commencing proceedings shall be called The Personal
Injuries Civil Summons.
2.
The Notice of Intention to Defend shall be filed not later than four days before
the sitting of the Court to which the summons is returnable.
3.
Any application to the Court for an Order for Particulars under Order 40 Rule
3 of the Rules of the District Court shall be made within one month of the Notice of
Intention to Defend.