PERSONAL INJURY LITIGATION THE VALUE EQUATION Carrie McDermott PARTNER

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PERSONAL INJURY LITIGATION- THE VALUE EQUATION
Carrie McDermottPARTNER
Disclaimer The Insurance Institute of Ireland
does not endorse or approve the content of any
third party.
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Contents

• Old Regime
• Compensation in Personal Injury Litigation
• Fees in Personal Injury Litigation
• Conclusion- Managing Costs

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Old Regime

• Single Process for all claims with little
  distinction for assessment only cases.
• Court Proceedings issued immediately.
• 33,000 writs were issued annually
• Largely reactive approach by defendants.
• Traverse Defence.
• Only one in ten made it to court .
• On the Steps of the Court settlement.
• No real pattern or guideline as to compensation.

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Compensation

• PIAB- compensation is based on documents only.
• PIAB does not deal with liability.
• The judiciary are now obliged to have regard to
  Book of Quantum.
• The compensation awards should become
  streamlined.
• Section 22 of the Civil Liability and Courts

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Compensation

• Book is not fully comprehensive- certain injuries
  such as the loss of an eye are excluded!
• No figures for psychological damage or scars.
• Judiciary retains discretion.

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Compensation

• Section 51A of Personal Injuries Assessment Board
  Act 2007.
• If PIAB assessment is rejected by the Plaintiff
  and accepted by the defendant and award is not
  exceeded in court- Plaintiff may be penalised as
  to costs.
• No award of costs may be made to Plaintiff and
  costs may be awarded against the Plaintiff.

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Compensation

• Plaintiffs must now have realistic expectations
  as to compensation.
• Sections 25 and 26 of Civil Liability and Courts
  Act 2004 aimed at fraudulent claims.
• Section 25 states that giving false and
  misleading evidence, known to be misleading is an
  offence.
• The penalty is 100,000 and/or imprisonment
• Section 26 of the Civil Liability and Courts 2004
  applies specifically to Plaintiffs.
• Plaintiffs who knowingly give false and
  misleading evidence could have case dismissed.

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Compensation

• Affidavit of Verification encourages Plaintiff to
  be truthful.
• Deterrent for those pursuing fraudulent or
  exaggerated claims.

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Compensation

• Section 17. Formal Offers- Both parties make an
  offer of settlement.
• Plaintiff obliged to state a sum that they are
  willing to accept.
• Defendant obliged to state sum that they are
  willing to pay or confirm not willing to pay any
  settlement.
• If case does not settle, trial judge will
  consider reasonableness of the conduct of the
  parties.
• Judge can make order as to costs based on
  reasonableness of the offer made.

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Compensation

• Section 17 offer is a useful tool for defendants
  as there is a greater costs risk to Plaintiffs.
• Defendants should be careful to make reasonable
  offers.

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Compensation

• Lodgments- Governed by Order 22, Rule 10 of the
  Superior Court Rules in High Court Actions.
• Tenders- Governed by Order 22, Rule 14 of the
  Superior Court Rules in High Court Actions.
• A qualified party can make an offer of tender of
  payment to the other party instead of lodging
  money in court.
• A qualified party includes an indemnifier of any
  party authorised to carry on business in the
  State as an insurance undertaking.
• In all other respects, the tender operates in the
  same manner as a lodgement and shall have the
  same effect.
• The defendant may at time of delivery of defence
  or four months of the notice of trial, make a
  lodgment/tender.

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Compensation

• If the Plaintiff does not accept the
  lodgment/tender and fails to obtain an award in
  excess of the lodgment/tender, the Plaintiff will
  be penalised as to costs.
• Calderbank Letters-
• These letters are offers by the defendant to
  settle the Plaintiffs case, on a without
  prejudice basis, save as to costs.
• SI 12 of 2008 Rules of the Superior Court- Court
  will have regard to the terms of any written
  offer when awarding costs.
• Calderbank letter now on Statutory footing.

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Fees

• Old Regime v- New Regime.
• Pre PIAB all claims were processed the same.
• Significant costs.
• New Regime introduced with PIAB Act 2003 and
  Civil Liability and Courts Act 2004.
• Estimated Savings of 24m.

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Fees

• Section 8 of Civil Liability and Courts Act 2004
  - Plaintiff is obliged to send initial letter of
  claim to the defendant.
• This calls for an admission of liability and acts
  as a warning to the defendant.
• This helps clarify the facts at an early stage.
• Special Personal Injury Proceedings now exist
  with strict time frame.

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Fees

• Pre-Trial hearing- Section 18 of Civil Liability
  and Courts Act 2004.
• Court can decide of own volition that pre-trial
  hearing should be held.
• Court will decide what matters are still in
  dispute between the parties.
• The provision could reduce professional fees
  payable by limiting the issues with a resultant
  savings in costs.

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Fees

• Mediation Conference- Sections 15 and 16 of the
  Civil Liability and Courts Act 2004.
• Alternative Dispute Resolution Procedure which is
  confidential and encourages settlement.
• Either party can request mediation conference to
  be held.
• The court can direct that the conference take
  place if it is felt same will be of benefit and
  the other party shall comply.
• In the absence of agreement between the parties,
  court shall appoint a chairperson.
• All notes of the chairperson at the mediation and
  communications shall not be used in civil or
  criminal proceedings.

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Fees

• Section 20 of Civil Liability and Courts Act
  2004- Court can appoint Expert for that case.
• This expert will act on behalf of the court and
  will give an overview of all the evidence
  submitted.
• The expert can be cross-examined by either party.
• The theory- Clearer evidential picture and
  speedier process.
• In Reality- Costs incurred in the appointment of
  expert and in carrying out the investigations.
• Court can direct either party to pay these costs.
• Likely to give rise to additional medico-legal
  fees.

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Conclusion- Managing Costs

• Proper investigations into the matter exchange
  information with other side.
• Utilise the legislation- Formal Offers,
  Alternative dispute resolution.
• Seek early resolution- Tenders, Lodgments and
  Calderbank letters.