Michael D'Arcy (Wexford, Fine Gael) | Oireachtas source

I move amendment No. 17:

In page 11, between lines 6 and 7, to insert the following:"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".

(3) Section 14 of the Act of 2004 is amended by the insertion of the following subsection after subsection (4):

"(4A) Where there is a failure to comply with subsection (4), the court hearing the personal injuries action concerned 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 party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate.".".

Amendment No. 17 is designed to amend the Civil Liability and Courts Act 2004 to give effect to recommendations made by the cost of insurance working group.

The amendment was considered carefully by the Department of Justice and Equality and the Office of the Attorney General during the formal drafting process. This consideration took into account the need for balance and constitutional proportionality and has been signed off by the Attorney General. Therefore, while legislation can always be challenged, we are satisfied that constitutional issues should not arise in the context of these two limited amendments and that there should not be any unintended negative consequences for genuine claimants.

On section 8, the amendment deals first with the letter of claim and the potential consequences of a failure to serve a notice in writing on the alleged wrongdoer within a prescribed period from the date of the cause of action – currently two months. The cost of insurance working group formed the view that section 8 should be amended to enhance the effectiveness of this statutory requirement.

The key aim of this amendment is to reduce the notification period for the serving of a letter of claim from two months to one month, to align the time period with data protection legislation and the new general data protection regulation, GDPR, which came into force on 25 May 2018 and which provides that data shall not be kept for longer than is necessary for the purposes for which it is obtained – generally no more than one month.

However an exception to this rule is where information on CCTV footage, video footage or digital footage is held in the context of an investigation, such as a personal injuries claim. Consequently, by requiring a plaintiff to notify a defendant within one month of an alleged incident under section 8, the defendant will be given the opportunity to identify within the data protection time limits any footage the defendant may have of the incident, and keep it beyond the one-month period for investigation purposes where the defendant believes the claim is questionable. This earlier notification period will also help a defendant prepare his or her defence in a range of other ways such as being able to put together more accurate employee witness statements where this is relevant. It also may help the defendant in accepting his or her liability as early as possible, thus enabling the claim to be settled quickly with minimal legal fees incurred.

The existing wording of section 8 needs to be strengthened in order to ensure it is used more effectively by the courts. In this regard, it is proposed that instead of a court having the option to draw inferences from the failure to serve a letter of claim on the alleged wrongdoer within the prescribed period of time through the use of the word "may", it should be required to do so as a matter of course through the use of the word "shall". It should be noted that these inferences may not always be negative as the court may conclude that there was reasonable cause for the delay in notification. However, where the inference is negative, the court may make no order as to the payment of costs to the plaintiff or deduct such amount from costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

Finally, on this part of the amendment, the working group believes that the words "or as soon as practicable thereafter" should be deleted as this allows arguably too much latitude to a plaintiff to delay unnecessarily before notifying the defendant. The working group, however, is of the view that with the deletion of these words, sufficient protection still remains for the plaintiff in this section, as only where there is a failure "without reasonable cause" can a court draw a negative inference. That refers to section 8.