Since 2004, a person who wishes the bring proceedings seeking damages for personal injuries has been required to send a letter of claim in advance of litigation, setting out the basis of their claim .

Two specific elements of this rule were important: first, the person was obliged to serve that letter of claim within two months of the date of their cause of action , and second, if they failed to do so, it was provided that a Court ultimately hearing their case may draw such inferences from the failure as appeared proper and, if required by the circumstances of the case, refuse to grant the plaintiff their legal costs in the action or reduce the costs awarded. Clearly, this could have significant ramifications for a plaintiff.

These provisions were permissive rather than mandatory and were not adopted in a widespread manner by the Courts . In the Supreme Court judgment in Doyle v Banville [2018] 1 IR 505 the provision was cited and the Supreme Court noted that it allowed inferences to be drawn in certain circumstances, but concluded that it did not apply to the facts of that case .

However, the position in relation to letters of claim has been altered in an important way, with effect from 28 January 2019 . From that date, a person who wishes to bring personal injuries proceedings must serve a letter of claim within the shorter period of one month from the date of the cause of action. If they fail to do so, the Judge who ultimately hears the case shall draw such inferences as appear proper and either refuse to award legal costs to the plaintiff or reduce those costs, where the interests of justice require.

The net effect of this change is that the period in which to serve letter of claim is shorter, but more importantly, it is now mandatory that the trial Judge consider imposing the adverse consequences outlined above where this fails to occur.

It is also notable that from the same date, a party who fails to file a verifying affidavit shall face similar adverse consequences : the judge hearing the case shall draw such inferences from the failure as appear proper, and where the interests of justice require, either refuse to grant that party their costs or reduce the amount of costs payable. Parties to personal injuries proceedings have also been required since 2004 to verifying affidavits, confirming the truth of the facts asserted by them in the case. However, these new potential adverse consequences for failure to comply make it all the more important that this is done in the correct manner.

Clearly, it is key that the advisors of plaintiffs and defendants in personal injuries litigation are alive to the consequences of these changes.