Inquiry to Examine All Aspects Of

1

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

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

INDEXPAGE

Chapter 1 Introduction6

1.1.Terms of Reference 6

1.2.Members of the Committee7

1.3.Topic 8

1.4.Specific questions the Committee was requested to consider8

1.5.Submissions 8

Chapter 2The current procedure in personal injuries actions9

2.1.Starting a personal injuries action9

2.2.Procedure in the High Court9

2.2.1Plenary summons10

2.2.2Service10

2.2.3Appearance11

2.2.4Application to join a third party11

2.2.5Statement of claim11

2.2.6Defence12

2.2.7Reply13

2.2.8Notice for particulars 13

2.2.9Notice of further particulars of injury13

2.2.10Notices for judgment in default13

2.2.11Notice of trial 14

2.2.12Settlements and lodgments 14

2.2.13Discovery 15

2.2.14Expert reports15

2.2.15Remittal of action16

2.2.16Trial16

2.2.17Appeals17

2.3.Procedure in the Circuit Court17

2.3.1Issuing and serving proceedings, joining a third party17

2.3.2Appearance and defence 18

2.3.3Notice for particulars 18

2.3.4Defence and counterclaim18

2.3.5Third parties, notice for particulars, reply19

2.3.6Discovery 19

2.3.7Settlements and lodgments 19

2.3.8Notice of trial19

2.3.9Remittal and transfer of the action19

2.3.10Trial and appeal20

2.4.Procedure in the District Court 20

2.4.1Issuing and serving proceedings21

2.4.2Defence, lodgment and counterclaim21

2.4.3Other applications22

2.4.4Transfer of the action22

2.4.5Appeal22

Chapter 3 Problems in the system24

3.1.Problems as perceived by those making submissions to the Committee24

3.2.Problems in the system identified by the Committee 26

Chapter 4 Statistics27

4.1.27

4.2.27

4.3.The High Court27

4.3.1High Court – statistics on personal injuries28

4.3.2Table 2 – volume of cases set down42

4.3.3Fixing a date for hearing46

4.3.4Awards of damages47

4.4.The Circuit Court49

4.4.1Level of awards in the Circuit Court51

4.4.2Dublin Circuit Court51

4.4.3Provincial Circuit Courts53

4.4.4All Circuit Courts 54

4.5.Statistics from the District Court 55

Chapter 5 Litigating personal injuries claims: issues and solutions56

5.1.Proposed procedural changes56

5.2.Revised statutory limitation periods59

5.3.New approach60

5.4.Committee proposals for new practice and procedure 61

5.5.Immediate, clear, detailed and unambiguous pleading62

5.6.New forms of documents – The High Court 62

5.6.1.Personal injuries summons63

5.6.2.Defence 64

5.6.3.Reply65

5.6.4.Pleadings generally65

5.7.Exchanges of final offer66

5.8.More practical and less flexible time limits66

5.9.Case management by the courts68

5.10.Questionnaire 68

5.11.Case management conference 69

5.12.Sanctions to discourage false or misleading evidence 70

5.13.Disclosure 72

5.14.Allocation of judges, court officials and resources 74

5.15.Draft rules 74

5.16.Personal injuries actions in the Circuit Court 74

5.17.Personal injuries actions in the District Court 76

Chapter 6 Costs78

6.1.The cost of litigating personal injuries actions78

6.2.No foal, no fee78

6.3.No incentive to keep costs down78

6.4.Tax79

6.5.High level of costs in England and Wales80

6.6.Transparency in the cost system 80

6.7.Information on the costs of litigating 81

6.8.Taxed Bills of cost81

6.9.Taxation of costs81

6.10.Judicial ruling 82

6.11.Increasing use of experts82

6.12.Section 68 Solicitors (Amendment) Act, 199482

6.13.Recommendations 83

Chapter 7 Information on awards of general damages85

7.1.A judicial decision85

7.2.Other jurisdictions 85

7.2.1England85

7.2.2Northern Ireland87

7.2.3Australia87

7.2.4New Zealand91

7.2.5Canada92

7.2.6The United States92

7.3.Conclusions93

7.4.Recommendations 93

Chapter 8 Resources 95

Chapter 9 Conclusion98

Chapter 10 Recommendations 100

Appendix A – Advertisement inviting written submissions104

Appendix B – Written submissions made to the Committee105

Appendix C – Oral submissions made to the Committee106

Appendix D – Draft rules for proposed procedural changes in High Court 107

Appendix E No. 1 – Draft Personal Injuries Summons117

Appendix E No. 2 – Draft Affidavit of Verification 119

Appendix E No. 3 – Draft Case Management Questionnaire 120

Appendix F – Rules for proposed procedural changes in Circuit Court122

Appendix G – Draft rules for proposed procedural changes in District Court123

CHAPTER 1

INTRODUCTION

1.1.Terms of Reference

1.1.1The 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.”

1.1.2By 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.”

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

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, 2002[1] and written submissions were received by the Committee[2]. Oral submissions were presented by a number of parties[3].

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 foractions 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.

2.2.1Plenary 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 issue[6]. If the plaintiff is a minor the three years begin to run once he or she reaches the age of eighteen[7]. 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 abuse[8]. 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 proceed[9].

2.2.2Service

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 court[10].

2.2.3Appearance

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.

2.2.4Application 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-defendant[11]. 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.

2.2.5Statement of Claim

The next document in a personal injuries action is the Statement of Claim, whichsets out the details of the plaintiff’s claim. It also sets out the reliefs the plaintiff is asking the court to provide[13]. It may be amended once without leave[14] and at any time with the leave of the court[15].

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.

2.2.6Defence

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 later[17]. 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 Counterclaim[18]. In the Counterclaim the defendant may also allege negligence or may make out a cause of action against the plaintiff.

2.2.7Reply

A reply is filed only if the Defence goes beyond mere denial and makes specific allegations which the plaintiff wishes to refute[19]. 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.

2.2.8Notice 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.

2.2.9Notice 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.

2.2.10Notices 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]

2.2.11Notice 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 given[21]. 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 of[22].

2.2.12Settlements 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 Lodgment[23]. 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.

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]

2.2.13Discovery

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 Discovery[26]. 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.

2.2.14Expert 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 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 side[27]. 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 reports[28] 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.

2.2.15Remittal 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 trial[29]. In these circumstances the Circuit court has jurisdiction to award damages without limit[30]. 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.

2.2.16Trial

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 personal injuries actions during certain weeks in Cork, Limerick, Galway, Sligo, Waterford, Dundalk, Ennis and Kilkenny.