Michael McDowell (Dublin South East, Progressive Democrats)

I will now describe the Bill's main provisions. Part 2 deals with the issue of civil liability and provides for procedural and other changes in actions to recover damages for personal injuries. With stated exceptions, the part applies to personal injury actions brought after its commencement. Section 6 amends the Statute of Limitations (Amendment) Act 1991 by reducing the limitation period for personal injuries actions from three years to one year to ensure that claims are brought forward without delay. There is an emphasis in part 2 on provision of full information on the claim being made. Sections 7 to 12 deal with the bringing of personal injury actions. Section 7 provides that a letter of claim must be served on a defendant by a plaintiff within two months of the date of accrual of the cause of action or date of knowledge. Often the time limits set down by rules of court are not adhered to, causing delays in the progress of actions. Section 8 makes it a function of the court to ensure that parties to a personal injuries action comply with rules of court. This section provides that extensions to time limits will only be allowed where either both parties agree to the extension or where a court considers that justice will be served by the extension to the time limit.

It is a common complaint of our current personal injuries system that defendants are often unaware of the details of a claim until late in proceedings. Sections 9 to 12 seek to remedy this difficulty. Section 9 introduces the personal injuries summons. A personal injuries action will now be brought by means of this summons. The section goes on to outline the information which must be contained in the summons including particulars of all items of special damages claimed, the wrongful acts of the defendant, the circumstances of the wrong and each instance of negligence.

To put that in context, to institute a personal injuries claim in the High Court now, all that is required within three years of the accrual of the cause of action is to serve what is known as a plenary summons, which contains a general endorsement of claim. In the case of a personal injuries action all that is required to stop the clock from running is to state that the plaintiff's claim is for damages for personal injuries. That is all the defendant knows even though an action has been commenced. The pleadings will now be required to be in the originating document in so far as they are known to the plaintiff at that stage.

Section 10 deals with further information, which may be required from the plaintiff by the defendant. Items of information, which may be requested, and must be supplied in response to that request, are particulars of any previous personal injuries actions and medical treatment, which may have a bearing on the current injury. If a person sues for a bad back, it would be relevant that such a person had a bad back arising from an accident at work for which he or she may have claimed previously. At the moment only diligent detective work on the part of the plaintiff will uncover such a fact, which is clearly wrong. Obviously the injury and the medical history must be relevant to the claim being made. It is not possible to dredge around and intrude on people's privacies to determine that somebody involved in a car crash had mental treatment as a teenager. It is not intended to have that effect.

In addition, where a claim is made for earnings or other income, the plaintiff is required, on request, to furnish documents from the Revenue Commissioners or the Minister for Social and Family Affairs. A person claiming financial loss of that kind may be required to authenticate it by showing that the claim is in respect of a legitimate loss. The section also gives the courts powers to deal with non-compliance with a request under the section. The provision of full information is vital to the speedy and proper conduct of personal injury actions.

The same applies to defences and counterclaims. Section 11 provides that a defence to a personal injuries action must specify those elements of the claim of which the defendant does not require proof and those elements of the claim of which the defendant requires proof. In addition, the defence must contain a statement outlining the grounds on which a defendant claims he or she is not liable for any injuries to the plaintiff. A counterclaim must contain all the information required in a personal injuries summons. Again, the intention with this section is to ensure that a plaintiff is fully apprised of the details of any defence or counterclaim. People may make bland denials and at the end of reading a defence, barristers and solicitors acting for the plaintiff are left like submarines without a periscope and have no idea of what defence they will face in court.

One of the key elements of the Bill is contained within section 13, which is designed to combat false and exaggerated personal injury claims. The section provides that parties to a personal injury action must swear an affidavit verifying the contents of any pleading or any further information requested under section 10. Section 13(5) makes it an offence to make a statement in an affidavit which is false or misleading and which the person knows to be false and misleading. This represents a change. At the moment a solicitor may make a claim on a client's behalf, which is wrong and lacks any substance. However, unless the client goes to the witness box and swears up to that proposition in the course of proceedings no criminal offence analogous to perjury is committed. This section will require an individual to affirm by oath the contents of the pleadings so that even if the action is settled, a very serious offence has been committed if the other side has been induced to settle by means of a falsehood.

One further aspect of this provision, as outlined in subsection 13(8), is that the section applies not only to actions brought following commencement of this Act, but also to actions pending at that time. There will not be an interregnum period during which bogus claims can just peter out over a number of years. When the Act comes into effect people will be required to swear up to the truth of what they are doing just as if they were commencing an action for the first time. The consequence of this is that the reform will become operative from a very early date once the provision is in force.

A new element in our personal injuries procedures, the mediation conference, is introduced in section 14, which provides that a court may direct that the parties to a personal injuries action meet to discuss and attempt to settle the action. The parties may agree on a mediator or, in the absence of such agreement, the court may appoint a person to chair the conference. Where a court appoints a chairperson, the mediator must be a practising barrister or solicitor of not less than five years standing or a person nominated by a body prescribed by order. If a group of trained mediators exists, we will not simply have a lawyers' monopoly.

The intention here would be that persons suitably qualified in mediation would be enabled to chair a mediation conference for the purposes of this section. It is vital in mediation that the confidentiality of all parties is respected, otherwise people will just be defensive and will stand their ground. To ensure this is the case, the section provides that the notes of a chairperson of a mediation conference and all communications during it shall be confidential and cannot be used in evidence in any subsequent civil or criminal proceedings. People will be able to admit to having been somewhat negligent without this being thrown at them afterwards in court as a concession they made during the conference.

The outcome of mediation conferences is addressed in section 15, which provides that the chairperson of a mediation conference must prepare and submit to the court a report of the conference. The report shall outline whether the conference took place, what issues, if any, were agreed at the conference and, where an agreement has been reached, a copy of the settlement terms signed by all parties. In cases where a party has failed to comply with a direction of the court under section 14, the court may direct that party to pay costs incurred after the direction.

Section 16 requires the plaintiff and defendant in a personal injuries action to serve a notice of offer of settlement on the other party. It is open to a defendant contesting liability completely to state that he or she wishes to offer a "nil" amount by way of settlement. Such offers of settlement will remain open for a period to be prescribed by rules of court. While a judge hearing a case will be aware that offers of settlement have been made, he or she will not be aware of the terms of such offers until a judgment has been delivered in the action. The court shall, however, have regard to the offers and the reasonableness of the conduct of the parties in making them when considering the costs of an action. The idea here is that the parties should be required to state their terms of settlement, on a basis that will have consequences in costs, before the case proceeds to trial.

The concept of pre-trial hearings is introduced in section 17, with the intention of determining what matters are in dispute and require decision in any trial of a personal injuries action. It is open to the court, where it considers it appropriate, to direct that such a pre-trial hearing take place. Section 18 makes provision for a court to direct that evidence may be given by way of affidavit. It will, of course, be open to any party to cross-examine any person who gives evidence by way of affidavit. At the moment someone wanting to prepare a case properly for court must assume that everybody must attend and give viva voce evidence, which wastes considerable time. Frequently people travel from somewhere like Killarney to Dublin and having given evidence, on which there is no issue, are not cross-examined.

In many personal injuries actions, conflicting evidence from experts must be decided by the court. Section 19 allows a court to appoint approved persons to investigate and give expert evidence on any issue the court may direct. The section also provides that any party to a personal injuries action shall co-operate with an approved person. An "approved person" is a person approved by the President of the High Court, in consultation with the Presidents of the Circuit and District Courts, for the purposes of the section. The intention behind this provision is that an expert, independent of any expert witness retained by the parties, could be appointed to assist the court. To take a medical example, a court might decide to appoint its own medical assessor, who will testify and be liable to cross examination, but will give an objective view to the court having listened to the medical experts on either side.

Section 20 is an important provision dealing with intervention in a personal injuries action. It provides that where an appeal is taken to the Supreme Court that court may, where it considers that any matter in the case relating to either liability or damages is of exceptional public importance and the action is one of a class of claims in which the same or similar matters arise, invite appropriate persons to make submissions to the court. Such an intervention may come about at the initiative of the court itself or at the request of any party or of any person who is not a party.

An issue may arise in a series of cases which is of exceptional public importance, going beyond the interests of the parties before the court. It may, for example, have far reaching implications for the public finances or for the cost of insurance. Mental distress is an example. Recently there was a case before the courts in which a mortuary attendant claimed for mental distress arising out of the psychological effect of seeing a body which had been badly mutilated in an accident. The question was whether that was reasonably foreseeable and within the chain of causation which should be covered by liability on the part of the person who caused the original accident and the insurers for that person. An issue of that kind, which could massively extend the scope of liability, is the kind of issue on which the Supreme Court would be entitled to hear more than one insurance company and one defendant because the case will have wider public ramifications, however it is decided. In such a case, a competent public body could be invited to make submissions to the Supreme Court before that court makes a decision on the issue, a decision which will bind other courts which are called upon to adjudicate on the issue in the future.

An essential element of the Bill is the necessity to reduce the number of false and bogus claims for personal injuries. Sections 21 and 22 seek to tackle this issue.

Section 21 makes it an offence to give or adduce or dishonestly cause to be given or adduced evidence that is false or misleading and which a person knows to be false or misleading. Equally, it shall be an offence to give, adduce or dishonestly cause to be given or adduced false information to a solicitor or expert. In the context of this section, a person does an act dishonestly if that act is done with the intention of misleading the court. It should be noted that section 21(4) provides that this section applies to personal injuries actions pending at its commencement as well as to subsequent actions. Therefore, if any further step is taken in an action after the passing of this Bill into law, that provision will apply.

It is of concern to me that, in a number of cases, persons have misled the courts on aspects of their claim and yet have walked away with an award in their favour. That means that if somebody who has a broken arm produces an entirely spurious claim for loss of earnings running to hundreds of thousands of euro, they still get damages for the broken arm, even though they spent considerable time and effort and wasted the time of the court in trying to sustain a claim which was fraudulent in nature on a collateral issue. In my view, if one seeks justice in the courts, one must, so to speak, "come with clean hands".

Section 22 is a key section in terms of combating such bogus claims. It provides that, where a plaintiff in a personal injuries action gives or adduces or dishonestly causes to be given or adduced evidence that is false or misleading and which the plaintiff knows is false or misleading, the court shall dismiss the plaintiff's action unless this would result in injustice being done. The section imposes the same sanction on any person who falsely swears an affidavit under section 13.

Essentially, if a person lies in the course of a personal injuries action, their claim will be dismissed subject to the qualification I have mentioned. Again, section 22 applies to actions pending at the time of the section's commencement as well as to subsequent actions. It will, therefore, have immediate effect. Again there is an example — somebody injured in a road traffic accident sustaining a broken arm who says in court that as a consequence they have never been able to golf since, but the other side shows the court a video of the person golfing last week as if nothing had happened. In those circumstances it is not good enough to compensate them for the original accident and say it is just too bad that they did not get away with the fraudulent aspect of their claim. One risks everything if one goes to court other than with clean hands in an attempt to sustain a claim which is part fraudulent.

Section 23 deals with the issue of collateral benefits. The Civil Liability Acts 1961 and 1964 are amended by providing for the deductibility of charitable donations made by the defendant if he or she specifies in advance that the donation is being made on that basis. In December 2002, the Law Reform Commission published a report on The Deductibility of Collateral Benefits from Awards of Damages. This recommended a general principle of deductibility subject to exceptions. One of the exceptions was that, in assessing damages, account should not be taken of payments made under an insurance contract where the plaintiff has paid the entirety of the insurance premiums, directly and independently, and in his or her own name. Senators may recall that, in the general scheme of the Bill which I published last year, I adopted a somewhat different approach in that I proposed that all insurance benefits, whether the premiums were paid by the plaintiff, or by his or her employer or somebody else, should be taken into account in assessing damages. Section 23, as it stands, does not amend the law on insurance benefits. I have left the issue aside for now and I will return to it and table an amendment at a later stage in the progress of the Bill through the Houses.

Section 24 provides that any income, in respect of which a claim is being made but which has not been returned or notified to the Revenue Commissioners will be disregarded by the court is assessing damages save for situations where the court considers that an injustice would be done.

I mentioned earlier offences committed under this Part. It is my view that such offences should attract serious penalties. Section 25 outlines the penalties imposed on persons who commit an offence under this Part. If convicted on indictment for an offence, a person shall be liable for a penalty of imprisonment for a term not exceeding ten years or a fine not exceeding €100,000, or to both. A summary conviction carries a maximum penalty of one year in prison or a fine of up to €3,000 or both.

I turn now to the other aspects of the Bill. Chapter 1 of Part 3 provides for the realisation of the dormant funds of suitors of the High Court, and of the special account for small balances, and their transfer for the benefit of projects of the Courts Service. The value of these dormant funds is currently estimated at about €6.4 million. Dormant funds of suitors of the High Court result mainly from unclaimed funds of wards of court, funds invested on behalf of minors, tail balances, bail deposits, civil lodgements as well as amounts of interests accruing on capital sums lodged in court and subsequently paid out. Periodic efforts made by the Irish Courts Service to refund dormant funds to account holders have met with limited success. Funds become dormant when there has been no activity over the preceding 15 years, with the exception of small balances which are deemed to be dormant after five years.

There have been four previous Funds of Suitors Acts, in 1959, 1963, 1966 and 1984. Those Acts allocated the dormant funds to certain social, cultural and courts rehabilitation projects such as the Cork Opera House, Abbey Theatre, Peacock Theatre, Kings Inns and the Children's Court. However, on this occasion, the funds transferred will be used for purposes in relation to the defrayal of costs involved in the provision, management and maintenance of court buildings as provided for in the relevant section of the Courts Service Act 1998. In the very unlikely event that there might be a deficiency in the funds of suitors, the Minister for Finance will offer a complete indemnity from the Central Fund.

Chapter 2 of Part 3 deals with miscellaneous court provisions. Among the provisions included in this chapter are the amendment of the in camera rule and provisions in relation to the jurisdiction of the Circuit Court in proceedings relating to land.

Section 31 amends the in camera rule, particularly as it relates to various family law statutes. The amendment will allow the publication of reports of proceedings with the proviso that such reports do not contain any information which could identify the parties or, in particular, any child to which the proceedings relate. The section also provides that nothing in any enactment which prohibits proceedings from being heard in public shall prevent the production of a document or the giving of information or evidence relating to such proceedings to a body or person conducting a hearing or enquiry pursuant to statute. This provision extends to bodies or persons acting otherwise than under statute where the body or person has been prescribed by ministerial order. I should add that there is a prohibition on any body or person publishing the document or information in those cases.

This provision will implement a commitment in An Agreed Programme for Government, comprising the Fianna Fáil Party and the Progressive Democrats. Essentially, the section has two purposes. First, it allows for the reporting of family law proceedings so that practitioners, legislators and the general public are aware of how the law in this area is in fact being administered. This knowledge is restricted at present because of the in camera rule. Furthermore, it is not desirable that justice should be administered in secret where our true objective is to protect parties' privacy and it does not require total secrecy.

The second aspect of the section is that it will allow the use of material from the in camera proceedings by disciplinary bodies, for example, in relation to complaints against a solicitor or a barrister or a medical practitioner arising out of the conduct of those proceedings. I have received a number of submissions on the relaxation of the in camera rule from a number of bodies involved in family law matters. I am considering those submissions and other issues and it is possible that I will bring forward amendments to that section at a later stage.

At present costs bear interest from the date of judgment, even though the solicitor has not yet submitted his bill. It is extraordinary that if a decree of costs is awarded to a person, the interest clock starts running, even though the amount on which it is running is determined only at a later stage. This situation is not fair to the party who must pay the costs. Section 32 amends section 30 of the Court and Court Officers Act 2002. The effect of the amendment is that interest on legal costs shall not be payable until the amount of costs is agreed by the parties or until the costs are taxed and measured. Thereafter the costs will bear interest at the rates specified from time to time.

Senators will be aware that the Central Criminal Court sits outside Dublin on occasion and it is necessary, therefore, to facilitate the administration of that new arrangement. This is done in section 34, which amends section 38 of the Court Officers Act 1926, to provide for the carrying out of the functions of the registrar of the Central Criminal Court by the local county registrar or a member of the staff of the local Circuit Court office, where the Central Criminal Court is sitting at that location.

Sections 35 to 42 address the implications of the Valuation Act 2001 for court jurisdiction in property matters, mainly in respect of the Circuit Court. At present, jurisdiction is determined on the basis of rateable valuation. The jurisdiction given to the Circuit Court is where the rateable valuation does not exceed €253.95. The introduction in the Valuation Act 2001 of a new valuation system which more accurately reflects current property values requires a modification of those provisions. The sections change the limit from €253.95 rateable valuation to a market value of €3 million. The term "market value" is defined.

The Bill has enormous significance for plaintiffs taking personal injuries actions and defendants. The procedural changes in sections 7 to 12 will mean that actions must be brought sooner and that full information must be provided by all parties. The provisions of the Bill dealing with verifying affidavits, false evidence and fraudulent actions will seriously reduce the number of false and exaggerated "trying it on" type claims. The Bill in no way compromises the right to compensation for genuine plaintiffs. It is even-handed as between the parties but is formulated to cut out the abuses which have threatened to discredit our legal system.

I look forward to the contributions of Senators. I will take account of views expressed and will consider carefully any amendments tabled. I am considering a number of issues which could be the subject of amendments at a later stage.

The Bill, together with the Personal Injuries Assessment Board Act, the road safety measures being taken under the auspices of the Minister for Transport, Deputy Brennan, and other measures in the Government's insurance reform programme, will combine to greatly alleviate the cost burden on business and the insured public, a burden which has been increasing over the years. If Members need any proof of that they should read today's newspapers and articles about people shopping around in search of reduced insurance costs. For the first time, there is downward competitive pressure on insurance premiums and consumers are enjoying the fruits of the new policies which are beginning to work their way through the insurance market.

I commend the Bill to the House.