Michael McDowell (Dublin South East, Progressive Democrats)

There is provision in the present rules of court for particulars arising out of any pleading to be served on the party who has served that pleading so a defendant is obliged to provide particulars of any matters stated in the defence. The Senator is going one stage further, that sometimes the plaintiff may require information from a defendant such as to their earning or so on. This is normally dealt with by letter and if the defendant does not come up with the goods so to speak, the court would take a very poor view of it. Sometimes, when one is a defendant in proceedings, if one simply says that one was not negligent, one is putting the matter at issue. One cannot ask someone to say why he or she was not negligent. There is a danger of people thinking that justice must be symmetrical. The onus of proof is on a plaintiff. The defendant, therefore, need not prove or disprove anything, except some positive assertion that he or she is making.

Second, the whole process is not symmetrical, in that the plaintiff seeks damages from the defendant. In general terms, the latter does not seek anything from the plaintiff. To ask a defendant to particularise a defence on the basis that the plaintiff may be required to do so assumes there must be symmetry between two situations which are fundamentally asymmetrical. If one is a large-scale employer, one simply may not know much about how an accident is supposed to have taken place. To be inundated with letters demanding that one set up one's defence in such circumstances is not the same as asking the plaintiff to do the same for his or her claim.

If, at the end of any civil proceeding, the court is left in the position that it simply does not know one way or another what the situation is, matters are not decided on a 50:50 basis. The plaintiff must lose, since he or she undertakes to prove things on a balance of probabilities. If something is left in doubt, the defendant should win. That is a principle of our civil law. In this case, to ask a doctor in a medical negligence suit, for instance, to give particulars of the reasons that he or she was not negligent is effectively to change the onus of proof, casting on the doctor the obligation in those circumstances to begin to justify all the actions taken. The doctor is not brought before the court to justify anything. Our system is that the plaintiff must prove matters on a balance of probabilities. It is not a system in which the doctor is told to prove that he or she was not negligent. That is not how our system works.