A new provision came into being in Irish law on 28^th January 2019, the idea being that a plaintiff must send his or her initial letter of claim within one month of the date of the incident (or cause of action).  Let’s take a look at the legislation.
This is what the law said up to 28^th January 2019:

CIVIL LIABILITY AND COURTS ACT 2004 pre 28^th January 2019
Letter of claim.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action may—

(a) draw such inferences from the failure as appear proper, and
(b) where the interests of justice so require—
(i) make no order as to the payment of costs to the plaintiff, or
(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

This is the amending enactment to change the law:

CENTRAL BANK (NATIONAL CLAIMS INFORMATION DATABASE) ACT 2018
Amendment of sections 8 and 14 of Civil Liability and Courts Act 2004

13. (1) In this section “Act of 2004” means the Civil Liability and Courts Act 2004 .

(2) Section 8(1) of the Act of 2004 is amended by:
(a) the substitution of “one month from the date of the cause of action,” for “2 months from the date of the cause of action, or as soon as practicable thereafter,”, and
(b) the substitution of “the court hearing the action shall” for “the court hearing the action may”.

This is what the new law should look like:

CIVIL LIABILITY AND COURTS ACT 2004 from 28th January 2019

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of one month from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action shall—

(a) draw such inferences from the failure as appear proper, and
(b) where the interests of justice so require—
(i) make no order as to the payment of costs to the plaintiff, or
(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

The first part of the amendment therefore changes the time limit for writing the initial letter of claim from 2 months or as soon as practicable thereafter, to simply one month. The second part changes the court’s discretion in the word ‘may’, to the court being obliged to consider this in the word ‘shall’.

Going further through the section, the court must ‘draw such inferences…..as appear proper’ and ‘where the interests of justice so require’ either make no order for the plaintiff’s costs or make a deduction from the plaintiff’s costs to reflect this section.

The saving provision from the plaintiff’s point of view is the wording ‘where the interests of justice so require’ .

There are a multitude of bona fide reasons why a plaintiff’s letter of claim will not be written within the month period and here are just a few examples

• a plaintiff does not see a solicitor within this time frame
• a plaintiff has injuries preventing him or her from considering legal proceedings
• a plaintiff is too traumatised by the incident
• a plaintiff is unsure about proceeding at all
• a plaintiff might have a claim for injuries against their employer and wants to consider this carefully
• a plaintiff wants to see if their injury settles down before taking any steps for a claim
• a plaintiff wants to know the outcome of a garda investigation
• a plaintiff wants to know the outcome of a prosecution
• it might take some time to establish the identity of the wrongdoer

The list goes on and is certainly not exhaustive. When putting the ‘interests of justice’ into the equation, however, it is hard to see how a plaintiff would be penalised.

It is also important to point out that the month is only counted form the date of the cause of action. There are situations where a plaintiff suffers harm, but this only becomes apparent at a later date. The date of knowledge of this is therefore important.

The ‘interests of justice’ is therefore a crucial provision in preserving a judge’s discretion when considering this issue. This means that a judge’s hands are not tied by legislation and allows a judge to make a fair, sensible and just decision on this.

In practice, if you go over the one month time limit then the reason for this should be stated in the personal injuries summons and the new rules for this are provided as follows:

RULES OF THE SUPERIOR COURTS

AMENDMENT TO: ORDER 1A
S.I. NO. 216 OF 2019: SUPERIOR COURTS (PERSONAL INJURIES: SECTION 8 NOTICES) 2019

“6. (1) Where a plaintiff who has not served the notice required by section 8(1) of the Act within the time prescribed for service of such a notice alleges that there was a reasonable cause for such failure, the personal injuries summons shall include particulars of the cause of the said failure.

The new court rules also allow for situations where this information is not available at the time of issue of the personal injuries summons so that it can be provided at the time of service or as soon as practicable thereafter.

The rationale behind the new legislation is a little unusual. It is generally thought this this was brought about by the insurance lobby seeking more certainty in knowing who was going to bring a claim. It may well have the effect of encouraging more claimants who would prefer to have their letter of claim issued within the one month period.

Some ambiguity also arises in the legislation. Usually an item being substituted is named first, but that is not the case here:

(a) the substitution of “one month from the date of the cause of action,” for “2 months from the date of the cause of action, or as soon as practicable thereafter,”, and

(b) the substitution of “the court hearing the action shall” for “the court hearing the action may”.

It remains to be seen if this will be tested in court.

All in all, it is difficult to see plaintiffs being penalised by this provision. The short time limit of one month gives wide scope for the plaintiff to provide a valid reason why the letter was not issued in this time frame.

This article is for information only and does not provide legal advice. If legal advice is required then please contact us at info@vintsolicitors.com © Philip Vint & Co solicitors 2019

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What are special damages in a personal injuries claim? The easiest way to think about them is that it is any compensation that you can actually mathematically calculate. Good examples of these would be loss of earnings, medical expenses or travel expenses.

So how are these calculated? The basic principle of compensation is to put you in the position you would have been in ‘but for’ the accident. With the loss of earnings, therefore, it is the net loss that is calculated. If the amount varies, you can take an average and then use this to work out the loss. Certain social welfare benefits must also be deducted; the simplest way to ascertain these is to obtain a certificate of the amounts from the Recoveries section of the Social Welfare Department. Invariably a defendant will have obtained these figures anyway.

Medical expenses are relatively easy to calculate. It is simply a question of adding these all up to include doctors’ and consultants’ fees, pharmacy bills, MRI scan fees, physiotherapy expenses and so on. This can sometimes get a little more tricky where, for example, a health insurer has paid medical bills on the plaintiff’s behalf. The health insurer might insist – and it may well be a part of the policy – that their outlay is included in special damages and they might look for an undertaking that, if this is recovered, it is repaid to them.

Travel expenses are similarly simple to calculate. They are generally allowable for trips for medical appointments and a rate of, say 63 cent per mile, is usually allowed.

Another item of special damages might be for car repairs. An estimate from a garage will often suffice to prove this. Where a car has been written off, you need to come up with market values for an equivalent replacement in terms of age, mileage etc. A starting point here can be using figures from popular internet car sales sites. In many cases, an insurer will cover the car damage without prejudice to the remainder of the claim once liability is not an issue.  A salvage value is often factored in too.

Minor items which have been damaged in an accident can also be claimed. Regular examples are mobile phones or expensive clothing that has been ripped or damaged.

Of course, all of the above assumes that you can get to a fixed point in time, such as settlement or trial, and do simple calculations but what about future losses? It is often very useful to get a report from an experienced occupational therapist. This can identify what the plaintiff can do upon returning to the work marketplace and ought to provide sample earnings. An actuary should then be instructed to crunch the numbers and provide figures for future loss of earnings. The actuary should be able to also work out figures for all other future losses such as future medical care, or future loss of services. Future loss of services might arise in a fatal accident case where a parent has been killed in an accident. The value of their services to the family can be worked out and then actuarialised.

Special damages are a crucial aspect of a personal injury, fatal accident or medical negligence claim and must be dealt with properly.

© Philip Vint & Co 2019

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The mediation will often take place on neutral territory such as in a hotel meeting room.

There are 4 essential pillars to mediation which are established at the start of any mediation process. They are that a mediation is voluntary, impartial, confidential and self determined; it is useful to outline these a little further. ‘Voluntary’ means that the parties are attending of their own free will. ‘Impartial’ means that a mediator will not take sides. ‘Confidential’ means that nothing that is said in the mediation can be referred to later unless the parties consent. Even the mediator’s notes will be shredded after a mediation has concluded. ‘Self determined’ means that it is the parties who determine the outcome of mediation.

In terms of the process, each party will have uninterrupted time to say what the issues are and the mediator will then summarise this back. There is then a discussion and parties are encouraged to look at options and solutions. It is possible that the mediator will meet each party in private during the mediation.

The key to a mediation is getting beyond positions and drilling down as to what is really going on. This can be thought of as the iceberg in which only the positions are apparent, ‘I will not’, ‘I will never’ etc and getting to true interests below the surface, ‘what is important’, ‘what is the impact’ etc. Once interests can be identified the parties will find solutions far more easily.

If agreement is reached, the parties can decide themselves whether to commit this to a written binding agreement.

Mediation can go where litigation cannot tread; it can be creative and indeed solve the almost impossible.

(c) Philip Vint & Co Solicitors 2019

The post ‘Mediation: How it works and what makes it so effective’ first appeared on Philip Vint & Co. Solicitors.

The Mediation Act came into force in January 2018 and represents a game changer in terms of all types of conflict resolution in Ireland.

Mediation is confidential, impartial, voluntary and self determined. From a practical perspective it is usually quicker and cheaper than going to court.

We offer mediation on a wide range of topics to include personal injury, medical negligence, employment, land, property, boundary disputes, conveyancing, litigation and probate disputes.

We are formally accredited with the Mediator’s Institute of Ireland http://www.themii.ie/members/profile/3062

and registered with the Law Society of Ireland https://www.lawsociety.ie/Find-a-Solicitor/Mediator-Search/?filters=s_Vint!c_16#

Should you like to know more about this, please contact us at philip@vintsolicitors.com or on 059 9164363

This article is for information only and does not provide legal advice. If legal advice is required then please contact us at info@vintsolicitors.com

© Philip Vint & Co solicitors 2018

The post Mediation Services at Philip Vint & Co. Solicitors first appeared on Philip Vint & Co. Solicitors.