There have been a number of recent developments in the area of personal injuries litigation that are part of an overall Government plan to try to reduce the costs in this area. In this article we highlight some of the key changes.
Amendments to the Civil Liability and Courts Act 2004
Recent amendments in relation to letters of claim and verifying affidavits were made to the Civil Liability and Courts Act 2004 by section 13 of the Central Bank (National Claims Information Database) Act 2018 and commenced on 28 January 2019.
- Letters of Claim – Section 8, Civil Liability and Courts Act 2004 The previous two month limit to send a letter of claim under section 8 has been amended to one month from the date of the cause of action. A further amendment to this section has removed the discretionary power of the court in relation to drawing inferences and making costs orders against the plaintiff from a failure to adhere to this section without "reasonable cause". The new mandatory language means that a court hearing a personal injuries action must, at a minimum, consider the failure in terms of costs orders.
- Affidavits of Verification – Section 14, Civil Liability and Courts Act 2004 The new amendment adds at section 14 a new requirement that where there is a failure by either a plaintiff or a defendant to comply with providing verifying affidavits within the time limits provided for by section 14 that the court "shall" again draw any inferences that seem proper and where the interests of justice so require make cost orders against the party in default. Again, the use of the mandatory "shall" means that at a minimum a court hearing a personal injuries matter must, at a minimum consider any failure under this new section 14 (4A).
Personal Injuries Assessment Board (Amendment) Act 2019
This Act, which commences on 3 April 2019, amends the existing legislation the Personal Injuries Assessment Board (PIAB) Acts 2003 and 2007, and aims to strengthen PIAB in terms of operational issues to ensure greater compliance with the PIAB process and encourage more claims to be settled through the PIAB model. The PIAB operates an administrative, paper-based process and assesses damages but does not determine liability. Except for claims for medical negligence, intending applicants must make their personal injury claim through the PIAB.
The new amendments contain provisions that again provide for adverse cost awards for failure to comply. For instance, the newly inserted section 51C provides that a court has discretion to deny an award of costs or to pay all or a portion of the other side's costs if a party has defaulted in providing additional documents at the request of the PIAB, co-operating with experts or submitting to medical examination.
The Book of Quantum which guides awards of damages must now be revised at least every three years.
These new provisions are aimed at cutting costs, shortening delays in personal injuries litigation and at weeding out false claims by introducing new costs consequences for defaulting parties on both sides of the litigation. A court will have to take any default by either side seriously and consider where in the "interests of justice" costs should lie. This could have implications for both parties to a personal injury claim and parties will need to be aware of consequences of any delays or defaults.