Michael McDowell (Dublin South East, Progressive Democrats)

The point raised in regard to rateable valuation reflects the new law. The old system of valuation has been swept away. Premises that are subject to rates are being done by reference to their open market value. I will take a look at this measure, however, because it may be important. One advantage of the rateable valuation system is that the rate was set and it was not open to argument. We must ensure that we do not introduce a system where there is argument about whether a house is in the jurisdiction of a Circuit Court or the High Court. It would be the worst of all worlds if people started bickering as to which court it should be in and waving auctioneers' reports at each other. That would not be a good idea at all.

In response to Senator Tuffy, child abduction cases are heard otherwise than in public. The Amendment of Courts (Supplemental Provisions) Act 1961 provides for this in section 31 under minor matters. Her point probably comes under this remit, but I will check it.

A point that many Members raised, which is probably the most frequently expressed doubt in regard to the Bill, is in regard to the appropriateness of reducing the limitation period for a person injured from three years to one year. Some of the criticism expressed in regard to this proposal is predicated on the assumption that this amendment will serve to defeat claims of persons who have difficulty in establishing what exactly happened to cause their injury. For example, in regard to medical negligence, it may take a long time for the injured party to ascertain what went wrong in the course of a medical procedure, whether this caused their injury, whether doctors, nurses or other staff were to blame for the outcome and so on.

Section 6 merely changes three years to one year. It does not change the date from which the limitation period begins to run. That remains as provided for in the Statute of Limitations (Amendment) Act 1991. That Act provides that a personal injuries action shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge, if later, of the relevant person. The date of knowledge is defined as the date upon which the person first had knowledge of the following facts: that the person alleged to have been injured had been injured — if one does not know that one has been injured the date of knowledge has not arrived; that the injury in question was significant — if one fell down a stairs and grazed one's hand and set off a reaction in one's brain, for example, one might say that the insignificant injury does not start the clock running; that the injury was attributable, in whole or in part, to the act or omission which is alleged to constitute negligence — this would apply to somebody who comes out of hospital feeling awful but knowing what caused the problem; that the identity of the defendant must be known — if one does not know who caused the injury or if one cannot reasonably know this, problems arise; and if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against a defendant.

On the period after which action cannot be brought, I fully accept that the relevant provision does not dispose of the argument completely, but it draws attention to the fact that it used to be the case that the statutory period could expire before one knew one had a case. This is no longer the case since 1991. Bearing in mind the provisions of the 1991 Act, the one year period looks a lot more generous than it would otherwise appear if taken as a stark calendar period. How would the lapse of another two years make it clearer to one, having had all the knowledge in one's mind, that one should bring an action? Some may criticise the one year period, but three years from the date of knowledge is a very lengthy period to give people to make up their minds on the issue. However, I will reflect upon what has been said on this matter.

I believe in mediation and do not accept the reservations of the Law Society in this regard. It is a good idea and a way of ensuring cases do not go to court. It involves a mediator trying to bring the parties together rather than an arbitrator simply listening to both sides, therefore, it is a useful function. Let us be practical and realise that mediation is more useful that the tangling that occurs between the plaintiff's and defendant's solicitors at settlement sessions in the Four Courts, in which nobody really tries to act as mediator. Much bluff and counter-bluff takes place on these occasions.

Senator Tuffy believed this Bill was, in its conception, more pro-defendant than pro-plaintiff. The Law Society, in its oral and verbal submissions to me in the course of the preparation of the final text of the Bill, made similar points. However, we are not dealing with a symmetrical situation. For instance, it is not the case that defendants are getting away with unscrupulous defences too much and that this is a major social problem. Our problem is that jobs and the competitiveness of the country, as Senator Mansergh stated, are being seriously prejudiced by the fact that the balance was tilted in the other direction. While I would always claim to be introducing balanced legislation, I am not trying to recalibrate this Bill in a way that leaves the balance more or less as it is. I believe the balance was excessively pro-plaintiff and I am moving the balance back — Senator Tuffy is correct in this regard — so it will be more significant, in an adverse way, from the point of view of plaintiffs. Plaintiffs will now be on their mettle. The rules were too soft in the past. Like Senator Tuffy, I was a practitioner of the law and on the basis of my career as a barrister I would say the system was slanted towards the plaintiff.

Senator Tuffy stated some of the procedures are over-prescriptive and that a vaguer language might suffice. One of the problems with our personal injuries legislation is that, if one looked at the rules of our superior courts, one would say there is no problem at all. It is how the rules are carried out in practice that makes the difference. We must get real about the significant cost to the economy of what has been referred to as the compensation culture. When commencing litigation, people should not be setting out to win the national lottery but trying to obtain fair compensation for their injuries. Compensation must be measured and conservative. We cannot all be Santa Claus and the legal profession should not nurture a compensation culture as if there were no cost involved. Everybody bears the cost. If Ireland's compensation rates are high and our insurance premia are high, and if that has a significant economic effect, mobile economic activity will go to Latvia, Lithuania, and the Czech Republic, where broken arms will attract fractions of the compensation we would hand out and consider to be fair. I am not asking that we dismantle our system and make it comparable to the continental one, which is in many cases seriously unfair, but that we must moderate the cost of insurance in the Irish economy generally.

On verifying affidavits, section 13(2), in its current form, states: "Where the defendant or a third party in a personal injuries action serves on another party to the action any pleading containing assertions or allegations, the defendant or third party, as the case may be, shall swear an affidavit verifying those assertions or allegations." However, the problem is that the defendant's position is not the same as a plaintiff's and I remind Senator Tuffy that the plaintiff undertakes the onus of proof. If he or she leaves the court without having tipped the balance in his or her favour, the defendant wins. This is a part of our system. The plaintiff, in starting proceedings, imposes upon the defendant all kinds of responsibilities as a defendant in the case. Therefore, every plaintiff's case should be verified on affidavit and the defendant should not be asked to swear an affidavit unless he or she is asserting some special fact upon which the defendant proposes to rely. In other words, if the defendant proposes to say, by way of defence, that the plaintiff was drunk, he or she cannot simply assert it but must state that he or she believes it to be true. One cannot just theorise on the case.

The purpose of this legislation is to ensure that bona fide claimants for compensation will be compensated but that those who are inclined to exaggerate their claims or bring entirely false claims will hesitate hugely before doing so. Doubtless, such cases will brought. There is an example in today's newspaper of a grossly exaggerated claim being made and flung out by the courts only yesterday. I do not believe this legislation will stop this from happening again, but it will bring home to plaintiffs that they are playing a very serious game of poker if they believe they can bluff their way towards undeserved compensation and that the consequences of losing in this game will be much more serious than they have been in the past.

One good point about this legislation is that it requires any lawyer or solicitor acting for a plaintiff to draw to the plaintiff's attention the provisions of this Act. The plaintiff will have to swear in the affidavit of verification that he or she has been warned of the consequences of the provisions of the Act. A conversation will have to take place in the solicitor's office at some stage before litigation begins in which the solicitor will have to say to the plaintiff that if he, the plaintiff, brings any part of his claim in bad faith or exaggerates, he will commit a serious criminal offence, and that if part of his claim is genuine and he is thinking of gilding the lily in respect of another part, the costs of both parts will be awarded against him. Conscientious solicitors may already do something similar but now they must do it. That will detract seriously from the culture of shaking the tree to see will anything fall from it or taking a chance on finding a a naive claims manager who will throw out a few thousand euro just to get rid of the case. There will be a totally different attitude as a result of this legislation.

I agree with Senator Mansergh's proposition that courthouses be opened to the public. We open Government Buildings and the Cabinet rooms on Saturdays to members of the public so that those who are interested can see how those places, which are normally off-limits, look. I intend bringing this point to the attention of the Irish Courts Service because there are many amazing courthouses which members of the public would like to see. They are welcome to visit while cases are at hearing but some might also like to hear about their features on a guided tour. Sligo courthouse is a beautiful Victorian building which deserves a visit.

The Irish Courts Service is doing a wonderful job restoring a rich legacy of courthouses across the country. It is also closing several small court venues so that the facilities described here can be made available, especially in family law cases. This will provide places in which clients and witnesses can talk to their lawyers in privacy and not in a large hall where they are stared at by others. I urge Senators to visit some of the magnificent restoration projects under way. They make me proud when as Minister for Justice, Equality and Law Reform I am asked to open them or to inaugurate the restoration process. It would warm the cockles of one's heart to see the great achievement of turning around a legacy of several decades of neglect of some of the most magnificent public buildings in the country.

I thank the Members of this House for their thoughtful response to this Bill and look forward to Committee Stage when the individual sections will be discussed in detail. I reiterate that I am open to any constructive and reasonable amendment to the legislation because I do not claim to have a monopoly of wisdom or truth and we want the best possible legislation to deal with a very serious problem.