Michael McDowell (Dublin South East, Progressive Democrats)

Amendment No. 13 is introduced to close what could be seen as a possible loophole in the original provision. The original wording "a person who intends to bring a personal injuries claim" was to my mind open to possible abuse. In that regard, it may have been possible for a person to evade the penalty aspect of the provision by stating that he or she did not actually intend to bring an action and was still making up his or her mind. The new provision does not contain those words and its content is otherwise in line with the policy of the original provision.

Subsection (1) now provides that where a plaintiff in a personal injuries action fails to serve a notice in writing on the defendant within two months from the date of the cause of action, the court may draw inferences from the failure as appear proper. The court may also make no order as to the payment of costs to the plaintiff or deduct an appropriate amount from the cost to be paid to the plaintiff. Subsection (2) goes on to define for the purposes of the section the term "date of the cause of action". This can be either the date of accrual of the cause of the action or date of knowledge whichever occurs later.

One of my main objectives in bringing the Bill before the Oireachtas is to ensure that defendants are informed in good time of the wrong alleged to have been done to the plaintiff. It is not acceptable that defendants are only informed late in the limitation period that they may be facing a claim for personal injury damages. The rephrasing of the section means that any person who brings an action and who has not served a letter of claim on the defendant within two months of the date of accrual or of the date of knowledge may be penalised in costs. The provision does not provide that the person will be penalised but that he or she may be penalised and must have a reasonable excuse for not sending the letter. The amendment is in accordance with my thinking on the issue.

I opposed on Committee Stage the approach taken in amendment No. 14 and I continue to oppose it. Increasing the time limit goes against the purpose and objectives of the Bill. A two month period is sufficient time for a plaintiff to serve notice on a defendant. There must be a penalty for non-compliance with the procedures for personal injuries actions. In my view, the possibility — I emphasise the word "possibility" — that failure to serve a notice of claim could lead to a court making no order as to costs or to a court deducting an amount from costs is a much greater deterrent than the proposal contained in the amendment.

Acceptance of amendment No. 15 could negate the section. Certain plaintiffs may be willing to take their chances on not serving a letter of claim if they consider that the penalties for non-compliance are too weak or too limited. It is not right in normal circumstances that a defendant only becomes aware that a claim is pending when he or she receives a personal injuries summons towards the end of the limitation period. As the law stands, that is what can happen and that is a source of much concern. The section, as currently drafted, seeks to ensure defendants are made aware of potential claims within a short period. This provision is an important part of the legislation and for that reason I do not propose to accept amendment No. 15.

I must stress that a claim does not automatically fail for want of sending a warning letter. Also, a claim will not be knocked on the head by the courts for want of serving a warning letter. The law provides that a plaintiff can be penalised if he or she does not provide reasonable cause for not sending a warning letter. Reasonable cause will be determined by the courts.

In addition, where failure to send a warning letter occurs, without reasonable cause, the courts can draw such inferences as it feels appropriate. If a plaintiff withholds a claim until such time as the defendant is not in a position to investigate the accident and if a fair inference in that regard is that the plaintiff was deliberately making it difficult for the defendant to substantiate the claim, the courts may make whatever inferences it feels appropriate. An example would be a person who allowed at an unconscionable level a building to be repaired or demolished and then claimed the existence of a defective step on the third flight of stairs in that building. In such circumstances, a court could ask why if the person fell down the stairs in February he or she did not by April send a letter of claim and why he or she allowed the building to be demolished without ever drawing the attention of the defendant to the claim.

The mechanism being provided is a reasonable one and is always subject to the fact that the courts are not obliged to knock a case on the head or to disallow costs unless it believes there has been an unreasonable failure to comply with obligations to warn defendants of a potential claim.