Letter of claim within one month; but is this a reality?
A new provision came into being in Irish law on 28th 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 28th January 2019:
CIVIL LIABILITY AND COURTS ACT 2004 pre 28th 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
