The legislation concerning claims for personal injury is now being changed quite fundamentally.
Legislative measures include the the Personal Injuries Assessment Board (Amendment) Act 2019 and Civil Liability & Courts Act amendments – which will give the Injuries Board [now rebranded once again btw as PIAB – as we recommended here back in 2012! ] more power to demand information from people making claims or more particularly from their solicitors. However, what is most worrying about the change in the law concerns the notice period that must be given to the person against whom the claim has been taken.
If you were injured in an accident, up until now you had two months to notify the defendant of your intention to make a claim*.
*This is different from the two year Statute of Limitations rule within which you must make the actual application.
The original two month notification deadline was designed to stop situations happening where somebody had an accident, told nobody about it and suddenly two years later made an application to PIAB. Obviously then because of the passage of time, the person against whom the claim was being made had no opportunity to investigate nor defend the matter properly. This was the whole purpose of the two month rule and in fairness it made sense.
This two month rule has now been reduced to one month which is ridiculous. It is in fact likely to encourage people to take claims which was hardly the intention of the legislation.
For example, a lot of our clients will come into our practice perhaps two, three and sometimes more months subsequent to an incident. This is often because whilst they had had originally no intention of taking a claim, given sometimes that their injury is ongoing with no sign of clearing up, they subsequently make the right decision to seek compensation for what is a serious or long-term injury.
The law now effectively induces a situation whereby even if a person is only slightly injured and has no idea whether or not the injury might be recoverable from – say within a six eight week period – they are now effectively impelled to notify the respondent of any putative claim within a much earlier timeframe.
It is important to note, however, that just because you do not notify within one month does not mean you cannot take a claim. What it does mean that if the matter ends up before a court, the court will look at why the notification was not made within the one month period and decide then if it was reasonable or not and whether or not to award costs in favour of the plaintiff.
My firm have taken many cases over the years where we had not ‘complied’ with the previous two month rule because the client either just did not know about it and/or did not realise that their injury was going to last as long as it did. Never once have we had a situation whereby a court did not accept our explanations. Indeed, in certain circumstances, it is perfectly understandable and reasonable for a person not to act immediately.
There have been cases in the past where our clients have been criticised for going ‘too early on’ to a solicitor to seek legal advice following an accident. One wonders whether or not that this will be still taken into account in the future.
As alluded to at the beginning, the main thrust of this the legislative measures is to enforce more co-operation from claimants and their legal team in terms of information sharing with respect to a given claim.
In truth however, the vast majority of solicitors have always co-operated with PIAB when making their assessments and their requests for further documents (unless for example the requested documents were not actually available at all). Therefore, for most of us nothing will change here..
If, however, a solicitor or a claimant themselves does not co-operate with PIAB in giving over documents, then the court may take this into account when hearing a case and may conceivably award no costs to the plaintiff (even if the latter wins their case). This is an important matter and is something which any claimant’s solicitor must advise them of when they first meet.
Perhaps there could sometimes have been an attitude that once the matter has gone into PIAB then ‘that is that’ i.e. nothing further needs to be done other than to await the PIAB staff to to come up with a figure. However this will now no longer be simply the case and an active involvement must be pursued by everyone involved in the claim.
We have to see how this pans out in the future but, if you know anyone who has been in an accident or have been in an accident yourself, do not hesitate to go to your solicitor.
…and do not listen to the ads on the radio which will try to pretend that everyone who takes a claim is a fraudster because now if you do not go to a solicitor within one month, you could have adverse consequences down the road!