Civil Liability & Courts Act 2004: Ending the Compensation Culture?
This much anticipated legislation was signed into law last July and its provisions put into operation by a commencement order on 20th September 2004. When signing the order the Minister stated that "the Civil Liability and Courts Act 2004 is a major plank in this Government's efforts to tackle insurance costs and insurance fraud and I believe that it will dramatically change the way in which personal injury actions are processed. In a very real way, the Act tackles the "compensation culture" which has developed in this country". The Act has been welcomed by the IIF and pressure groups while predictably some lawyers believe the provisions to be unfair to genuine victims. One leading lawyer spoke recently of a “culture of hostility” towards plaintiffs.
Dealing with claims from the defence side often felt a bit like playing with the other guy’s ball, with rules made up by the other side and with referees appointed from amongst their number. This new legislation along with the PIAB Act helps to level the playing pitch. This article will set out some of the new provisions and discusses the implications of some of the changes.
Quick Off the Mark.
Claims will generally have to be taken within 2 years instead of the current three. Hopes were that this period would be one year but the period was increased after strong lobbying. Claimants will have to send a notification of their intention to claim within two months of the accident. This is very important because it gives the defence a real chance to investigate the claim promptly. This is especially important in fast changing environments like Construction sites. Failure to meet these requirements has serious implications especially for costs.
Give us the Goods.
The information available in cases promises to be much more complete. A new type of summons known as a Personal Injury summons will provide more information from the outset. The summons will provide the kind of information that is really needed to set an investigation in motion. If insufficient details are provided, the Courts can delay or even dismiss the claim. There may also be implications for costs.
Details of all previous actions taken by the claimant must be provided including actions that were withdrawn or settled. As well as this the claimant must provide particulars of any injuries that might have a bearing on the claim. Details of earnings, taxes paid and social welfare receipts with appropriate official documentation to back them up must also be given. Much of this may have required a Court Order in the past.
Evening the Score.
Defendants do not get things all their own way. They will have to set out which allegations made by the plaintiff do and do not require proof. If the defendant believes they are not liable they will have to say why. While plaintiffs will have to swear an Affidavit verifying all the assertions made in the pleadings, it should be realised that defendants will have to do the same. This probably greatly reduces the scope for defendants to prolong actions for “commercial reasons” or because they have a “bad feeling” about the claim but little to back it up.
Over the years a body of law has been steadily building where it has been acceptable to exaggerate claims in certain circumstances. Even if some aspects of the claim were shown to be false, this often had little or no effect. In the case of fraudulent Actions including the provision of a false or misleading affidavit, the court should (unless this would result in an injustice) dismiss the action. Even more seriously it now becomes a criminal offence to knowingly give false or misleading material evidence in a personal injury action. Fines can be up to €100,000 with terms of imprisonment of up to ten years have been put in place.
What’s the Damage?
The Act ties in with the PIAB legislation in that the Courts are now required to have regard to the PIAB Book of Quantum when deciding on awards.
Let’s talk it over…
The court can direct the holding of a mediation conference with a view to settling the claim out of court. The mediator can be agreed or will be appointed by the court. The court will decide who should pay the costs of the conference. Pre-trial hearings of issues that need clarification can also be directed by the court. This is very important because it is often the case that once the issue is resolved, resolution of the main action follows quickly.
If an employer or other wrongdoer makes a charitable payment (as may often occur after a fatality especially) and if proceedings are later taken against him, he will now be entitled to have this donation taken into account when damages are assessed.
The provisions of this bill are being introduced in a staggered fashion, as some of them require further orders or changes to existing procedures. We have provided more precise information on the changes and the relevant dates in the information boxes. It is clear at this stage that this is a very far-reaching piece of legislation and one that will have a major effect on the claims landscape for many years to come.