Two recent High Court cases addressed two procedural issues related to the defence of personal injuries actions: ‘formal offers’ and ‘verifying affidavits’. The obligations on parties (i.e. both plaintiff and defendant) to personal injury litigation in respect of formal offers and verifying affidavits are set out in the Civil Liability and Courts Act, 2004 (“the 2004 Act”). In the first case the defendant succeeded in compelling the plaintiff to deliver a formal offer. In the second case, the defendant succeeded in having the plaintiff’s case dismissed on the grounds that the plaintiff failed to “validate” the Affidavit of Verification.
Sheila O'Donnell v Gerard McEntee and Sean Tierney 1
Section 17 of the 2004 Act requires both the plaintiff and the defendant to a personal injuries action to make a formal written offer of settlement to each other during the period between the issue of proceedings and within two weeks after the service of the Notice of Trial.
In this case the defendants sought an Order compelling the plaintiff to issue a formal offer. Kearns J firstly clarified that the actual period within which formal offers should be made is between the date upon which the Personal Injury Summons is served and 14 days after service of Notice of Trial. This is the “prescribed period”. He rejected the plaintiff’s assertion that section 17 of the 2004 Act left it open to the parties to the proceedings to make formal offers at any time (up to and including the trial itself). The court could not answer the question as to who should make the formal offer first (plaintiff or defendant)? Whilst the 2004 Act does not require simultaneous offers (this would produce an “absurd outcome”) Kearns J was ”…unable to resolve the difficulty of who should go first without rewriting the legislation to specify which party goes first”. However, the court was satisfied that the 2004 Act required both parties to make formal offers within the prescribed period and he therefore granted the defendant’s application compelling the plaintiff to make a formal offer.
Michelle Walsh v South Dublin County Council 2
A plaintiff in a personal injuries action is must sign a verifying affidavit verifying all allegations and assertions made in the pleadings are true under section 14 of the 2004 Act. A person who makes a statement in a verifying affidavit that is either false or misleading in any material respect (or that he/she knows to be false or misleading) shall be guilty of an offence.
Lavan J found that the plaintiff’s evidence in her pleadings and on cross examination showed marked discrepancies in respect of the time and location of the accident. Such discrepancies were highlighted by the evidence of medical personnel and medical records.
As a result, the court ruled that the plaintiff could not “validate her Affidavit of Verification”. The judge rejected her evidence and that of her witnesses and he dismissed the plaintiff’s case.
Lavan J observed at the end of his judgment how:
“The Oireachtas being concerned with bogus claims have moved to ensure that claims are verified. Where an affidavit of verification is sworn and subsequently proven to be wrong then the offending party must pay the price for this”.