Litigation Handling

1
Litigation Handling

• Deirdre Conlan, Senior Litigation Claims Handler,
  RSA

Disclaimer The Insurance Institute of Ireland
does not endorse or approve the content of any
third party.
2
When do proceedings Issue

• In order for a claimant to issue proceedings for
  personal injuries, the PIAB process must be
  exhausted without resolution of the case. This
  arises when
• The defendant rejects assessment of the action
  because liability is in dispute S14 of the PIAB
  Act
• PIAB decline to deal with the case pursuant to
  S17 of the PIAB Act
• The claimant rejects the PIAB assessment, S30 /
  S31
• The defendant rejects the assessment, S30 / S31
• PIAB will issue an Authorisation permitting
  proceedings to be issued, S 32
• Proceedings are issued to have a settlement Ruled

3
Statutory Limitation Period

• Statute of Limitations Act has been amended by
  the PIAB Act , S 50 Reckoning for the purpose of
  the Statute of Limitations. The Limitation Period
  for Personal Injuries actions is now 2 years from
  the date of the accident, but the PIAB Act
  stipulates
• 50.In reckoning any period of time for the
  purposes of any limitation
• period in relation to a relevant claim specified
  by the Statute
• of Limitations 1957 or the Statute of Limitations
  (Amendment) Act
• 1991, the period beginning on the making of an
  application under
• section 11 in relation to the claim and ending 6
  months from the date
• of issue of an authorisation under, as
  appropriate, section 14, 17, 32
• or 36, rules under section 46(3) or section 49
  shall be disregarded.
• S50 of the Statute of Limitation Act specifies a
  two year period during which proceedings must
  issue against the estate of a deceased person.
  This is unaffected by recent litigation.
• In Non-personal injury claims, the period is 6
  years, but there is no Discoverability rule

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CIRCUIT COURT PRACTICE PROCEDURE

• The Circuit Court system divides up the country
  into different circuits that are based largely
  upon county areas. Each Circuit Court area will
  have a permanent Judge or Judges.
• Jurisdiction
• The Circuit Court has jurisdiction to a maximum
  of 38,092.14

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Pleadings

• Personal Injuries Summons
• Proceedings in the Circuit Court commence by the
  issue of the Personal Injury Summons the form of
  which is specified in the Rules. Certain
  information must be stated on the Civil Bill. The
  Bill must actually be served, unlike the High
  Court where the date of issue is crucial when
  considering the Statute of Limitations.
• Appearance
• Notice for Particulars
• Replies to Particulars
• Defence
• Third Party Procedings
• Notice of Trial
• Trial

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Tenders

• The new Circuit Court Rules allow both lodgements
  and also a tender into Court by a qualified
  party. The Rules specify the format of the
  tender and the tender must state either it is
  being made with an admission of liability or with
  a denial of liability. If a Plaintiff decides to
  accept the tender they must serve a Notice of
  Acceptance of same and the Defendant must pay the
  tender amount within four weeks of the date of
  receipt of the Notice of Acceptance of same.
  Interest can be charged if the tender is not paid
  within that period.
• Should the tender not be accepted, and judgement
  is given for any amount less than that tendered,
  the plaintiff is responsible for all costs,
  including trial costs, from the date of the
  Tender. Unless there are fraud indicators,
  tenders should be made in assessment cases. It is
  also a good opportunity to review the value of
  the action and review reserves and case progress.

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High Court Proceedings

• Personal Injury Summons
• This contains a note of the identity of the
  plaintiff and defendants and sets out the nature
  of the plaintiffs claim and includes particulars
  of negligence and breach of duty, details of
  injuries and a description of the accident.
• Notice for Particulars
• These are, strictly speaking, not formal
  pleadings. A court order compelling the
  plaintiffs solicitor to reply may be sought.
• The defendant is not entitled to look for
  evidence of how the plaintiff intends to prove
  his claim, such as the identity of witnesses,
  although these queries are regularly raised to
  catch out an unwitting solicitor. This
  information is more properly sought by way of
  Discovery or Interrogatories.
• Replies to Particulars
• These should furnish additional information,
  particularly in relation to items of special
  damages and ongoing treatment

8
High Court Proceedings

• Defence
• The Rules allow 28 days from the service of the
  Statement of Claim in which the defendant is
  required to file a defence. Where Notice for
  particulars has been sought and the particulars
  are outstanding the plaintiffs solicitor is not
  prohibited from bringing a motion to compel
  service of the defence, although a 21 day warning
  letter must be served.
• The defence is usually drafted by junior counsel,
  and an opinion on liability and quantum sought at
  this point. For larger cases, it may be
  appropriate to have the defence settled by a
  senior counsel. The defence should indicate what
  aspects of the case are admitted, and what
  aspects will require to be proven. Any pleas of
  contributory negligence should be stipulated.
• Third Party Proceedings
• A defendant may require to join a Third Party to
  the Proceedings, which is done by way of Motion
  pursuant to Order 16, Rules 1 (1) of the Superior
  Court. The Grounding Affidavit should set out a
  prima facie case against the third party. A third
  party may apply to have the case set aside for
  delay, Rule 8 (3). The court doesnt specify a
  time frame for bringing third Party proceedings
  but requires the application to be made as soon
  as is reasonably possible by s27 (1) of the Civil
  Liability Act. An application can be made to have
  the proceedings set aside on the grounds of
  delay, Rule 8(3).

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High Court Proceedings

• Tenders
• Lodgements continue to be required in commercial
  or professional indemnity claims but order 22,
  Rule 1, Sub-rules 7-10, of the Rules of the
  Superior Court provide that tenders may be made
  in injury cases, subject to strict time
  guidelines.
• The defendant may tender
• Once, without the permission of the court and, on
  notice to the plaintiff, tender with their
  defence, or within 4 months of service of Notice
  of Trial
• Where 18 months has passed since the date of
  Notice of Trial, a Defendant may, without
  permission of the Court, make a payment of money
  into court/ tender within 21 days of expiry of
  the 18 month period, provided that the payment,
  if it is not accepted by the plaintiff, shall not
  take effect until expiration of two months from
  the date it was made or increased.
• Where the plaintiff serves Replies to a notice
  for Particulars or Additional Particulars without
  a request for such particulars, after the time
  within which a defendant could make a lodgement/
  tender.
• Notice of Tender is served on the plaintiffs
  solicitors and on the Court Office. This document
  is not filed with the Court Office.

10
High Court

• Notice of trial
• While usually the plaintiff serves the Notice of
  trial, the defendant may do so, if the defendant
  hasnt moved to do so within three weeks after
  proceedings have closed, provided they have
  secured leave of the Court. If six weeks elapse
  from close of the pleadings, they do not require
  leave of the court. Alternatively, the defendants
  may bring an application to the master to have
  the case struck out for want of prosecution.
• List Numbers
• Each High Court venue has its own list and all
  cases set down are provided with a list number.
  It should be notified to the opposition
  solicitor.
• Rules of Disclosure under SI 391
• Within one month of Notice of trial being served,
  the plaintiff to an action must provide the other
  side with a schedule listing all reports from
  expert witnesses intended to be called at the
  hearing. The defendant must, within ten days of
  receipt of this schedule, furnish the plaintiff
  or any other party a schedule listing out all the
  reports from expert witnesses intended to be
  called. Within seven days the parties shall
  exchange copies of the reports listed in the
  respective schedules.
• A Report is defined as being a report or
  statements from Actuaries, Accountants,
  Occupational Therapists, Architects, dentists,
  Doctors, Engineers, Psychologists, Psychiatrists,
  Scientists and includes any maps, drawings,
  photographs, graphs, charts, calculations and
  such things referred to in any such report.

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High Court

• Discovery
• This is a process where one party can require
  another party, or any other person who has
  documentation relevant to the issues between the
  parties, to disclose what documents are in their
  possession, custody or power. The process is
  governed by SI233/1999 Rules of the Superior
  Courts No 2 (Discovery) 1999. Discovery may be
  made voluntarily or following a court Order.
  Documents are collated and then designated those
  over which privilege will be claimed or not
  privileged. The party seeking disclosure must
  first seek voluntary discovery of the documents,
  and thereafter must show the court that a
  reasonable time has elapsed since their request
  during which the other party has failed, refused
  or neglected to make discovery.
• Discovery cannot be used as a means of gathering
  information or evidence in order to establish a
  claim, and the court may require proof that the
  plaintiff has a statable case and pleaded cause
  of action before making an Order. Discovery is
  usually dealt with after the Defence has been
  filed.
• The party must gather the documentation sought,
  list each document, identify the classification
  of privilege claimed in respect of each document
  and indicate the general nature of the document.
  In some cases, the parties will furnish copies of
  the documentation in others inspection will be
  allowed.
• An affidavit of Discovery is required to be
  signed by the person making the discovery, in the
  case of a Company, it is usual for the Company
  Secretary to sign.
• If a Discovery Order is not fully complied with,
  the claim or defence may be struck out or an
  Order for Further Discovery made.

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• Delay
• A defendant may apply to have a case struck out
  due to delay.
• Regard should be had to
• Delay on the part of the Defendant
• Steps taken by a defendant causing the plaintiff
  to incur substantial costs
• The relative strength of the case for either
  party
• The broad principals in striking out a case for
  delay were outlined in Primor plc v Stokes
  Kennedy Crowley
• The courts have inherent jurisdiction to control
  their own procedure and to dismiss a claim when
  the interests of justice require them to do so
• it must, in the first instance, be established
  that the party seeking dismissal of proceedings
  for want of prosecution on the ground of delay in
  the prosecution thereof, that the delay was
  inordinate and excusable
• Even where the delay has been both inordinate and
  inexcusable the court must exercise a judgement
  on whether, on the facts the balance of justice
  is in favour of or against the proceeding of the
  case
• In considering the latter obligation, the court
  is entitled to take into consideration and have
  regard to
• The implied constitutional principals of basic
  fairness of procedures
• Whether the delay and consequent prejudice in the
  special facts of the case are such as to make it
  unfair to the Defendant to allow the action to
  proceed and to make it just to strike out the
  plaintiffs application
• Any delay on the part of the defendant
• Whether any delay on the part of the Defendant
  amounted t acquiescence on the part of the
  Defendant to the plaintiffs delay
• The fact that the conduct by the defendant which
  induces the plaintiff to incur further expense in
  pursuing the action does not, in law, prevent the
  Defendant from securing a Striking out order, but
  is a relevant factor to be taken into account by
  the judge in exercising his discretion whether or
  not to strike out the claim, the weight to be
  attached to such conduct depending on all the
  circumstances of the particular case
• Whether the delay gives rise to a substantial
  risk that it is not possible to have a fair Trial
  or is likely to cause or to have caused a serious
  prejudice to the defendant, and
• The fact that the prejudice to the defendant
  referred to in (v) may arise in many ways and be
  other than merely caused by the delay, including
  damage to a Defendants reputation an business

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High Court

• Trial
• Rulings
• Appeals
• Notice of Appeal must be served on the other side
  within 21 days from the date of perfection of the
  Order or Judgement being appealed against. If the
  time limit has expired an application may be made
  to serve the Appeal.
• Where Notice of Appeal has been lodged, the
  appellants solicitor must lodge three or five
  books of Appeal, which include all pleadings,
  notices, the High court Order and the Notice of
  Appeal. In addition a transcript of evidence and
  legal submissions must be lodged. It is important
  that a stay be sought at the time the order is
  made, or by application before Notice of Appeal
  is filed.

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Non-Jury Cases

• These cases concern claims other than for
  personal injuries and insurers are involved manly
  in cases involving claims for damages for
  property damage, consequential losses,
  professional indemnity claims and cases involving
  the operation of insurance policies.
• The Limitation Period is usually 6 years, or 12
  in respect of a claim for breach of contract
  under seal. The proceedings are similar to PI
  cases. In addition an application may be made for
  an Order for Security for Costs where the
  plaintiff is a company, with no apparent assets
  but it is a good defence for the plaintiff
  company to show that the impecuniosity was caused
  by acts of the Defendant the subject of the
  proceedings.
• Any third party applications must be made within
  28 days from the time limited for the filing of a
  defence, which is 56 days from service of the
  Statement of Claim.
• Discovery is more focussed and the application
  must verify that the discovery of the documents
  sought is necessary for disposing fairly of the
  cause or matter or for saving costs and the
  applicant must furnish the reason why each
  category of documents is required to be
  discovered. Discovery in non-jury cases is very
  costly and serious consideration should always be
  given to resolving a case before the discovery
  process begins.
• In all cases, counsel must furnish Advice on
  Proofs and Certificate of Readiness before a
  trial date is sought. The handlers need to
  consider their position on liability and quantum
  before proceeding to trial and also ensure they
  have secured appropriate witness reports dealing
  with liability and quantum.
• At trial, stenographers are required. It has
  become increasing prevalent for the parties to
  proceed to mediation before or during trial in a
  bid to resolve their issues, and a judge might
  direct that they do so, before hearing the
  action.
• Judgements are usually reserved and delivered at
  a later time.

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Commercial Court

• This court deals with commercial cases where the
  value of the claim is not less than 1m. Insurers
  will be involved in professional negligence
  claims, disputes under insurance policies and
  substantial third party property and financial
  loss claims.
• Three judges are assigned to the commercial
  court, and the intention is to offer a speedy,
  focussed litigation process. The cases are
  admitted by application of the plaintiff after
  service of the Statement of Claim. The applicant
  must prove the value of the claim and show the
  importance of a speedy trial.
• The judge fixes immediate dates for the pleadings
  to be files, for mediation and for trial. There
  is an initial directions hearing and case
  management conference. The system results in
  front-loading of legal and expert costs in
  preparation of the proceedings. In addition, the
  court requires exchange of summary of evidence
  and all witness and expert reports. There are
  cost penalties for non-compliance with deadlines.
• It is imperative that the defence team is
  selected early, thorough investigations concluded
  early to evaluate liability and experts engaged
  to address quantum. Where possible, the cases
  should be resolved though mediation to avoid
  trial costs. Costs in these, and other non-jury
  cases, can regularly exceed the amount in dispute
  and it is usual to seek quotes from solicitors,
  and particularly experts ahead of their
  retention. Experts usually include forensic
  accountants, QS firms, expert legal
  professionals, investment advisors and
  economists.
• Calderbank Letters
• These can be made where there is no provision for
  a lodgement/tender. Strictly speaking, they
  arent admissible where a tender can be made and
  should represent the full value of the case.

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• Thank You