RECENT LEGISLATIVE CHANGES IN PERSONAL INJURIES LITIGATION
The Personal Injuries Assessment Board (PIAB) is the country’s independent State body with responsibility for assessing personal injuries claims relating to accidents on the road, at work, or in a public place. It does not, however, deal with cases classed as Medical Negligence.
If you have suffered a Personal Injury, there are two routes through which compensation can be recovered. The first route is through PIAB. The second option after the PIAB process is through litigation, that is by pursuing a claim through the Irish courts. If you are making a Personal Injury claim, it is a legal requirement that you first lodge a claim with PIAB before you can use the court system. The other party, namely the Respondent, must first consent to the assessment before it can be assessed by PIAB. Claims are assessed based on all the medical evidence produced, having regard to the level of compensation that is awarded for particular injuries, and this is known as assessment in accordance with the Book of Quantum. If the award from PIAB is acceptable to both parties, then PIAB issues an Order to pay to the Respondent. If, however, either party is dissatisfied with PIAB’’s award, then PIAB issues an Authorisation enabling the Claimant to commence court proceedings.
There have been a number of recent developments in the area of Personal Injury litigation that are part of an overall Government plan to try to reduce costs in this area. On the 3rd of April 2019, new rules around the operation of PIAB came into effect via the Personal Injuries Assessment Board (Amendment) Act 2019 (2019 Act). This Act amends the existing legislation, the Personal Injuries Assessment Board (PIAB) Acts 2003 & 2007 and aims to strengthen PIAB in terms of operational issues to ensure greater compliance with the PIAB and to encourage more claims to be settled through the PIAB model.
New rules have also been introduced via the Central Bank (National Claims Information Database) Act 2018,( 2018 Act ) which requires Personal Injuries Claimants in Ireland to give early notice of their claim. These changes are aimed at helping businesses and their advisors to assess claims earlier.
We set out some of the key changes brought about by both Acts.
Key Changes:
The Personal Injuries Assessment Board (Amendment) Act 2019,makes five key changes to the Personal Injuries Assessment Board (PIAB) process:
1. Notification of Claim:
Section 13 of the 2003 Act, as amended by s.2 of the 2019 Act, provides that the Injuries Board is now allowed to issue preliminary notice to the Respondent(s), that is the other side, that a claim against them has been received. It is now, however, no longer necessary for a Claimant to include a medical report with the application form to PIAB in order to stop the clock running for the purposes of the Statute of Limitations Act 1957 (Statute of Limitations). However, if a medical report is not lodged, and while the Respondent may receive a preliminary notice of the claim, the formal notice to the Respondent will not be sent by PIAB until the outstanding medical report is received.
2. Clarity on the Statute of Limitations when joining additional Respondents:
Section 50 of the 2003 Act, as amended by s.7 of the 2019 Act, resolves the anomaly identified in the case of Renehan v T & S Taverns [2015] IESC 8. Where a claim has been submitted to PIAB and one or more Respondents are later added to that existing claim, the recent amendment confirms that time continues to run against the Claimant under the Statute of Limitations in respect of those additional Respondents until the date of their addition to the claim. Therefore, an application for assessment against one Respondent will no longer stop the Statute of Limitations clock running against all other possible Respondents who may be joined at a later date.
3. Lack of Co-Operation with PIAB:
Section 51(c) of the 2019 Act is a new provision that provides that the Court may penalise Claimants and Respondents as to costs if the Claimant goes on to issue proceedings and has not fully co-operated with PIAB. In such circumstances, a Court will have discretion to make several possible costs orders against the Claimant, to include: not awarding the Claimant their costs, awarding reduced costs, or awarding costs against the Claimant. The 2019 Act describes acts of non-cooperation by a Claimant, such as: failing to attend a medical appointment, failing to provide details of Special Damages, and failing to co-operate with an expert. Equally, if a Respondent fails to comply with certain requests made by PIAB, this may have costs implications if authorisation issues and the matter progresses to hearing. This change applies to PIAB applications made on, or after, the 3rd of April 2019, or to existing applications where a PIAB Assessor has not yet made the relevant request.
4. Updating the Book of Quantum:
Section 9 of the 2019 Act updates the Book of Quantum by amending s.54 of the 2003 Act. The Book of Quantum provides general guidelines as to the level of compensation which someone may be awarded in Personal Injuries actions, and it is to be reviewed from time to time and updated at least once every three years.
5. Service of Documents
Section 79 of the 2003 Act, as amended by s.14 of the 2019 Act, provides that PIAB can now serve or issue documents electronically or by document exchange service where consent to such service or issue is given.
The Central Bank(National Claims Information Database) Act 2018 (2018 Act)
Section 8 of the Civil Liability and Courts Act 2004 (2004 Act) has been amended by the 2018 Act so that a Personal Injuries Plaintiff must serve a Letter of Claim which states the nature of the alleged wrong on the alleged wrongdoer within one month of the cause of action. If the Plaintiff fails to do so, the Court is now obliged to draw such inferences as appear proper and, if justice so requires, penalise the Plaintiff on costs. This means that the previous two-month limit to send a Letter of Claim under s.8 has now been amended to one month from the date of cause of action. The courts previously had discretionary powers in making costs orders against a Plaintiff for failure to adhere to this section but now, at a minimum, must consider the failure in terms of costs orders.
Section 14 of the 2004 Act which introduced the requirement for parties in a Personal Injuries action to swear a verifying affidavit in respect of any pleadings that make assertions or allegations has also been amended. The new amendment adds, at s.14(4A), a requirement that where there is a failure by either party to comply with providing verifying affidavits within the time limits provided for by s.14, the Court “shall”, again, draw any inferences that seem proper and, where the interests of justice so require, make a costs order against the defaulting party.
The new requirements introduced by the 2018 Act apply to claims arising on or after the 28th of January 2019.
Conclusion:
The new provisions introduced under both the 2018 Act and the 2019 Act are aimed at cutting costs, shortening delays in the litigation process, and introducing new costs consequences for defaulting parties.
These new rules highlight the importance of having expert legal advice, and our team at BDM Boylan Solicitors is happy to address any questions clients may have on the implications of the above legislation.