Litigation Support and Assistance
A substantial part of my work involves litigation support. Litigation is the procedure whereby a series of steps are taken which ultimately will result in a contested court hearing before a judge.
The first step in most litigation matters is that a demand is made and if the demand is refused or ignored then your solicitor can prepare and issue legal proceedings which will set out in detail the nature of the claim.
Experienced litigation support
The various documents that issue in the course of litigation are collectively known as pleadings. The aim of these pleadings is to enable both parties and a judge hearing the case to know exactly what the claim is, exactly what the issues are between the parties and exactly what any defence or counterclaim is.
If it is not possible to settle the differences between the parties then the issues can be determined in a court before a judge and in certain limited cases, before a judge and a jury.
Medical Negligence Claims
Professional Negligence
Solicitor’s Negligence
District Court Proceedings
Circuit Court
High Court
Supreme Court
Personal Injuries
Since 2004, the vast majority of personal injury claims must first of all be submitted to the Injuries Board. If it is believed that the injuries were caused by an uninsured motorist then the claim must be first of all submitted to the Motor Insurers Bureau of Ireland (MIBI).
The main thinking behind the introduction of the Injuries Board was not necessarily to reduce the amount of compensation payable to the injured person but instead to reduce the costs involved in litigation with two sets of solicitors and several barristers.
We have no problem with this but clearly there is still a very urgent need for specialist help where a person has suffered a serious injury and is dealing with an organisation such as the Injuries Board.
There are a number of difficult questions involved in personal injury litigation and in connection with running your claim through the Injuries Board and we will help to answer some of those questions.
When should I submit my claim?
All claims arising from a personal injury must be submitted within two years from the date when the cause of action accrued or from the date when the plaintiff first had the necessary knowledge as defined by section 2 of the Statute of Limitations (Amendment) Act, 1991.
The majority of claims arise from motor accidents and the relevant period therefore is two years from the date of the accident.
The Injuries Board changed its name in 2008 and while the official title is the Injuries Board, it is still sometimes known as PIAB.
It should also be noted that claims made to the Motor Insurers Bureau of Ireland must also be submitted to the PIAB.
What type of accidents are covered?
The vast majority of injuries following from road traffic accidents are covered. This includes injuries to pedestrians and injuries to passengers as well as injuries to drivers. It also covers injuries caused in any kind of motor vehicle including a motor bike and including a bicycle.
If you suffer an *injury at work or an injury on a farm then you may have a claim. Many accidents are caused on construction sites (although not so many nowadays!). All these claims must be submitted to the Injuries Board.
It should be noted from the outset that the injury is not necessarily limited to something that shows up on an x-ray. Injuries can be psychological in nature and can often refer to parts of the body such as tendons or muscles or nerves where damage might not necessary show up on an x-ray.
What type of damages am I entitled to?
The Injuries Board have an excellent section on their website called the Book of Quantum. This gives a good general idea of the type of damages they are likely to award in the different type of injuries that come before them.
In our experience, PIAB do not tend to become involved in cases where the injury is purely psychological in nature. Otherwise the Book of Quantum is a good guide to the type of damages you will get if your claim is dealt with exclusively by PIAB.
How are damages calculated?
The main aim of this area of litigation is to compensate a person for an injury they have suffered. This type of compensation is known as general damages. Awards can vary but the highest figure is awarded in cases where “catastrophic” injuries are suffered.
Many people believe that very serious injuries will receive awards running into millions of Euro. This is not the case. Judge Quirke in the High Court case of Maggie Yung v. MIBI dealt with the question of a cap on general damages. Prior to this case, it was felt that the maximum sum anybody could be awarded by way of general damages was in the region of €350,000. Judge Quirke however said that where catastrophic injuries occur, there should be no cap placed on the amount of general damages awarded. He said that each case should be decided on its merits. However in practice it is extremely rare indeed that any case will attract general damages in excess of €400,000. There are however other areas of damage you can claim in addition to general damages.
Special Damages
Special damages are claims for losses incurred prior to any hearing or prior to any decision and also include future losses that can be clearly ascertained.
If you have incurred actual expenses up to the date of trial then these expenses should be able to be quantified. They cover matters such as loss of earnings, medical expenses, travel expenses etc. If specialist medical assistance or nursing assistance was required or if some form of home help was required then these expenses can also be claimed.
In addition to past loss of earnings, a person can claim future loss of earnings. In order to do so, a reliable and comprehensive medical report will have to be obtained clearly setting out why the claimant’s ability to earn into the future might be impaired. It is also often necessary to seek a report from a rehabilitation consultant or an expert, who can set out what type of employment and what type of earnings a person may be able to do following an injury and following the best recovery possible. This element of a claim can be extremely significant given that future loss of earnings can effectively last for a life time if the injuries are genuinely serious.
If a person trains for many years and is a very skilled chef or a carpenter and suffers a serious hand injury, then future loss of earnings can be extremely significant even though the injury itself might seem to be relatively insignificant. The same applies if a professional musician was no longer able to play a particular musical instrument or could not sing.
Medical Expenses
It is relatively easy to ascertain past medical expenses but it can be difficult ascertain future medical expenses but with very serious injuries, future expenses can be extremely substantial and may for instance involve the expense of a full time or part time carer. A house may have to be adapted to cater for a person who has suffered serious injuries or a car may have to be adapted accordingly.
An area of controversy exists in relation to hospital expenses where there has been substantial litigation concerning the amount a person can claim on behalf of a hospital for treatment they have received in the past. We can advise specifically on this area if required.
Is a personal injury award subject to taxation?
The award itself is not taxable but if you invest it, then any interest gained is taxable. There is an exception to this rule in cases where there has been permanent or total incapacity arising from an injury and a person is unable to maintain themselves. A claim will have to be made to the Revenue Commissioners to obtain a certificate to this effect and very strong medical evidence will be required. It will not be sufficient to show that the injuries were serious or even life threatening – the injury must result in permanent and total incapacity.
Do I need a solicitor if I submit my claim to the Injuries Board?
We would very strongly advise all clients to obtain expert legal advice concerning a claim submitted to the Injuries Board. They do not give legal advice. Their job is simply to process paperwork and make a paper award based on the content of a medical report and any other relevant documentation submitted to them. They do not hear evidence. You have to know what type of damages you are entitled to claim and you have to know whether or not any award made is sufficient and acceptable.
There can be serious difficulties if there is a psychological element to any claim as in our experience PIAB will only make awards in cases where there is a physical injury as well as a psychological injury. They do not tend to make awards where there is psychological injury only. In our experience there is very often a psychological impact in very many accident cases.
PIAB and the insurance companies do their best to prevent solicitors becoming involved in claims but the Supreme Court have determined that the Injuries Board must deal with a claimant’s solicitor if the claimant instructs them to do so.
A claimant has to be extremely careful to ensure that the appropriate paperwork has been submitted to the Injuries Board.
A person claiming can be penalised if they do not send a written warning notice to the alleged wrong doer within two months from the date of the accident. This letter should set out the nature of the wrong alleged and if it is not sent, the claimant can be penalised by having costs awarded against him/her and can have their ultimate award reduced.
The Injuries Board Form A must be submitted and this is a critical document and must also refer to a medical report. Again, the medical report is critical and you must ensure that all relevant information is covered in the medical report and that it is as comprehensive and accurate as possible.
The medical report and Injuries Board form A must be sent along with the standard Injuries Board fee to the Injuries Board at P.O. Box 8, Clonakilty. Co. Cork.
In order to come within the two year Statute of Limitations period, you must have all relevant paperwork submitted to the Injuries Board and in addition, you must receive from them a written acknowledgement that they have received documents. Otherwise the statute continues to run and your claim could be statute barred.
Once the claim is accepted, the Injuries Board will then write to the other side and ask them if they wish to have the Injuries Board adjudicate on the claim. If they do not, then the claimant can issue their own court proceedings.
Once the Injuries Board make an award, the other side have 21 days to accept the award and unless a positive response is received, then it is assumed that the award is rejected.
If the award is accepted then the order to pay has the same effect as a court judgment.
You have to be very careful in deciding whether or not to accept an award made by the Injuries Board because if you reject it and the matter subsequently proceeds to a fully contested court hearing and the eventual award is less than the amount awarded by the Injuries Board, you could be penalised by having to pay your own legal costs or costs might actually be awarded against you and you may have to pay the other side’s costs. Legal advice at this stage is absolutely essential.
*Personal Injury Summons
If for whatever reason the claim is not dealt with by the Injuries Board then a claimant can issue a Personal Injury Summons. This covers all cases whether they are dealt with in the District Court, Circuit Court or High Court. The Personal Injury Summons sets out full details concerning the plaintiff, the accident complained of and the injuries and damages suffered.
It must also set out full particulars concerning the negligence alleged.
The defendant will then usually raise a Notice for Particulars and on foot of this document, a plaintiff will generally have to reveal his/her accident or claims history.
If the defendant or the court is misled in any way under this heading, a plaintiff can have his claim dismissed or can be penalised by having the claim reduced or costs being reduced or awarded against him.
Once satisfactory Replies have been received to the Notice for Particulars, a defendant will lodge a Defence and if necessary, a Counterclaim.
All parties are required to lodge Affidavits of Verification in personal injury actions. This places a greater onus on all parties to prevent fraudulent claims and cover all proceedings issued after 31st March 2005.
Lodgements
A defendant, and in particular an insurance company, will often lodge a sum of money into court stating that they believe that this sum is sufficient to cover the claim. A defendant can make a lodgement either when they are lodging their defence or within four months from the date of the Notice of Trial. These time periods can be amended with permission from the court. If a lodgement is made and the case proceeds to trial and the plaintiff does not obtain a settlement in excess of the lodgement, then the judge (who will not have known beforehand, that the lodgement has been made) can penalise the plaintiff by reducing or refusing to order the defendant to pay the plaintiff’s costs.
All of these new procedures are set out in the Courts & Civil Liabilities Act of 2004. Another method whereby settlement is encouraged is the procedure of formal offers where proceedings issued after 31st March 2005. The Act says that the plaintiff and the defendant must make an offer of settlement to each other at some time between the issue of proceedings and before the expiration of two weeks after the service of the Notice of Trial. If a formal offer is not accepted, the judge, after he has made his Order, will consider the refusal and whether or not it was reasonable and will take this into account when making a decision concerning costs.
This Act also introduced the concept of mediation into *personal injury actions and either side can request a mediation conference at any time prior to trial.
Once the defence has been lodged, the question of D iscovery may arise. Discovery is the process whereby one party calls on the other party to prepare a list of all documents relative to the claim and subsequently, if required, hand over copies of such documents.
Once all pleadings have concluded, then the case is set down for trial and the following documents have to be lodged with the Central Office:
i. Setting down docket and Notice of Trial.
ii. Evidence of service of the Notice of Trial.
iii. Book of Pleadings.
iv. Solicitor’s letter certifying that the Book of Pleadings are true copies of the originals.
Once these documents have been sent into court, the case will be given a list number and the case will be given a hearing date in due course.
Defamation
The tort, or civil wrong, of defamation is concerned with protecting an individual’s (or indeed, corporate entity’s) reputation from unjust attacks. The right to a good name is constitutionally guaranteed and, as such, the State must protect and vindicate this right.
There are many ways in which an individual can be defamed. Traditionally, unjust attacks on reputation in written form where known as libel, while slander described defamatory remarks made in spoken or other transient form. That distinction has since been abolished and both categories now go under the umbrella of defamation.
The right of an individual to his/her good name and reputation is jealously guarded but so too is the constitutional right to freedom of expression.
When these two rights come into conflict, defamation litigation arises. This most commonly occurs when media publications print stories that have a detrimental effect on an individual’s reputation. However, not all material – however offensive it may be to the party concerned – will be considered defamatory by the courts
Costs
The issue of costs is hugely relevant in relation to defamation. In recent years, unsuccessfully defended defamation actions have results in exorbitant awards of damages to libelled parties.
The highest award ever made by an Irish court in a defamation case was €10 million in November 2010 to businessman Donal Kinsella. Prior to the Kinsella case, the largest libel award was €1.9 million to PR consultant Monica Leech over a series of articles in the Evening Herald newspaper in 2004, which falsely suggested that she had had an affair with a government minister.
However, under the 2009 Act, the jurisdiction of the Circuit Court for defamation matters was increased to €50,000, which in theory should ensure more matters are instigated in the Circuit Court, thus reducing the potential legal costs of claims.
In addition, the 2009 Act allows a judge sitting with a jury in a defamation action to give directions to that jury in relation to ‘the matter of damages.’
What must I Prove?
- In order to take an action for defamation, there must have been publication to a third party. There can be no damage to reputation if the public is not aware of the defamatory statement. However, publication to just one other person is sufficient provided it was intentional and reasonably foreseeable that publication to the third party would occur.
- Secondly, the words must be capable of having defamatory effect. Section 2 of the Defamation Act 2009 defines a defamatory statement as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.’ When establishing if a statement is defamatory or not, words will be given their ordinary, natural meaning. However, the courts will also have regard to innuendo, whereby words which are not on their face critical of the individual may constitute defamation by implying or insinuating something about him or her.
- Finally, the alleged injured party must prove that they have been identified or are capable of being identified by the material complained of. According to section 3(6) of the Defamation Act 2009, ‘a defamatory statement concerns a person if it could be reasonably be understood as referring to him or her.’ It must be noted that an individual need not actually be named in order to prove identification. All that is required is that they are capable of being identified by the details given. In addition, member of a class/group may take an action in defamation provided that they are not too great in number and that, by virtue of the circumstances in which the statement is published, it could reasonably be understood to refer, in particular, to the member concerned.
Defences to an Action
Because freedom of expression is a fundamental right in any democracy, there are a total of nine ways in which an action for defamation can be defended.
Truth
Truth is always a complete defence to an allegation of defamation. That is, if it can be demonstrated that the statement is true, then the alleged injured party cannot bring an action for defamation. It must be noted that ‘a presumption of falsity exists’ whereby the court will presume that the statements complained of are false. It is up to the other side to prove the veracity of the statement.
Absolute Privilege
In certain circumstances the law will grant immunity from an action for defamation to the maker of a statement where public policy dictates that the recipient’s right to know prevails over the individual’s right to a good name. Thus, no action for defamation can arise from a statement made, for example, in either House of the Oireactas by a member of either House of the Oireachtas or any statement made by a judge or other person performing a judicial function. For a full list of the categories covered by absolute privilege see Section 17 of the 2009 Defamation Act.
Qualified Privilege
This defence is particularly relevant to the media and may be pleaded as a defence in circumstances where the law recognises that a person may have a duty to speak to others who have a reciprocal interest in receiving the information. However, it must be noted that malice destroys this privilege.
Honest Opinion
The defence of honest opinion will be upheld in an action for defamation if it can be proven that the statement consisted of an opinion that was honestly held. The courts will distinguish between statements of fact and opinion when this defence is raised.
Fair and reasonbable publication on a matter of public interest
Again this defence is particularly relevant to the media and will apply when it can be proven that the statement was made in good faith on a subject of public interest for the benefit of the public. The statement must be in all circumstances fair and reasonable.
Offer of amends
A person who publishes a defamatory statement may make an offer of amends, which must be in writing. They may chose to publish a correction or an apology or make a payment to the injured party.
Apology
An apology may be issued as a part-defence, in that it can go towards mitigation of damages.
Consent
No action for defamation can arise out of a statement that the complainant consented to the publication of.
Innocent publication
This defence is particularly relevant to publishers as repetition of a defamatory statement counts as a separate act of defamation. A person who is not the author of the statement at issue, who took reasonable care in relation to its publication and had no reason to believe that he/she caused or contributed to the defamatory publication, will not be guilty of defamation.
Defamation is a highly nuanced area of law. If you feel that you have been defamed it is advisable to contact a knowledgeable solicitor straight away as you have just one year from the date of publication to take a claim.