John Paul Phelan (Carlow-Kilkenny, Fine Gael) | Oireachtas source

I move:

That, pursuant to Standing Order 200, Standing Order 154 is modified to provide that it be an instruction to the Select Committee on Finance, Public Expenditure and Reform, and Taoiseach that it has power to make provision in the Central Bank (National Claims Information Database) Bill 2018 in relation to:section 8 of the Civil Liability and Courts Act 2004 to enhance the effectiveness of the statutory requirement for a plaintiff to serve a notice in writing on the defendant stating the nature of the wrong alleged to have been committed by him or her; and section 14 of the Civil Liability and Courts Act 2004 to allow for the court to draw inferences from non-compliance with the requirement to lodge a verifying affidavit within 21 days after the lodgement of the service of the pleading concerned, and deduct costs from the party responsible for the failure;and to make other consequential amendments required to take account of the changes above.

The purpose of my remarks is to explain the background to and the need for amendments to the Civil Liability and Courts Act 2004, and the reason they are being tabled by the Minister for Finance to the Central Bank (National Claims Information Database) Bill 2018.

Members of the House will recall that the Minister of State, Deputy D’Arcy, signalled that amendments were being considered to sections 8 and 14 of the Civil Liability and Courts Act 2004 on 20 September as part of his Second Stage contribution on the Central Bank (National Claims Information Database) Bill 2018. Both of these amendments arise from key recommendations 6 and 14 contained in the Cost of Insurance Working Group’s Report on the Cost of Employer and Public Liability Insurance.

I will now give some further information on the amendments. The first amendment relates to section 8 of the Civil Liability and Courts Act 2004. 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. Its rationale is to align the time period with data protection legislation, 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 or CCTV 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 is being given the opportunity to identify within the data protection time limits any relevant CCTV footage he or she may have of the incident, and keep it beyond the one month period for investigation purposes where they believe 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.

In addition, the working group believes that the existing wording of section 8 needs to be strengthened 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".

Amendment of section 14 of the Civil Liability and Courts Act 2004 proposes the insertion of a new subsection (4A) into section 14 of the Act. Section 14 deals with the matter of a verifying affidavit in a personal injuries action. At the time this Bill was being legislated for it was described as a key element of the 2004 Act and was designed to combat false and exaggerated personal injury claims.

The working group concluded that non-compliance with section 14 as a whole is not frequently raised in court as an issue, and no instance of a prosecution or conviction pursuant to section 14 was found. The working group also took the view that the requirement to lodge an affidavit within 21 days of the service of the pleadings was not unreasonable. However, it would appear that this regularly does not happen.

Consequently, it proposed a new subsection which would provide for a court hearing a personal injuries action, where there is a failure to lodge an affidavit in court by the deadline set out in the existing subsection (4) to draw inferences and, where it thought it appropriate in the circumstances of the case, to deduct costs from the party responsible for the failure.

The working group hopes that by providing for potential financial consequences to be applied for non-compliance with the procedural requirements, where a court thinks it appropriate, it will force parties to the action to strictly adhere to the requirements set out. The aim of the working group regarding this amendment is to reinforce the original intention of the provision as a measure to combat fraud and exaggeration in personal injury claims.

In summary, both of the amendments are seen as important for small and medium businesses in particular. When implemented, they should make it easier for businesses and insurers to challenge cases where fraud or exaggeration is suspected. The Minister for Finance, Deputy Donohoe, and the Minister of State, Deputy D'Arcy, believe these proposed amendments form important steps in the reform of the overall personal injuries framework.

See this speech in context