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Time nor tide wait for your letter of claim

Updated: Jun 13, 2019





Be warned; swift action required in Personal Injury claims


Most people are already aware that they do not have an infinite amount of time to bring a legal action – they normally know that some time limits do apply, but what are those limits? This piece deals with the time limits that apply when an injured party is bringing an action for personal injuries.


Why have a time limit at all?


The Statute of Limitations is the length of time a person has to bring their claim. The main purpose for having such limits is grounded in common sense principles;


  • If a plaintiff has a valid case of action they should pursue it with reasonable diligence

  • Delays in bringing a claim may prejudice the defendant as evidence can become stale (i.e. witnesses may no longer be alive or capable of recalling the relevant events, and evidence may have disappeared due to the passage of time)

  • A person should not have to endure a threat of legal action hanging over them for an indefinite period of time.


Two years as a general rule in Personal Injury actions*


*(The general limitation period under the Statute of Limitations is six years for proceedings for tort or breach of contract or to enforce an arbitral award (s. 11(1) and 11(2)). What this means is that in general you have six years from when a breach of contract or a tort occurs to bring legal proceedings)


Generally speaking if you have been injured as a result of someone else’s negligence, you have 2 years to bring the action. This can be extended where a person has no knowledge that an injury is connected with a wrong committed by someone else. For example, a situation arose in a well-known UK case when an illness known as asbestosis was discovered, which in many cases resulted in death. The condition was cause by asbestos which was a product used in roof construction over 30 years ago. Asbestos is a group of minerals with thin microscopic fibres. These fibres are resistant to heat, fire, and chemicals and do not conduct electricity. These desirable properties made asbestos a very widely used material. Many years later it was discovered that asbestos caused serious problems for the lungs. which leads to long-term breathing complications. It is caused exclusively by exposure to asbestos, but may not be diagnosed until decades after the exposure occurred. By the time the danger of asbestosis was discovered the Statute of Limitations had expired. The ‘date of knowledge’ of the injury has therefore evolved based on the rationale that if you didn’t know about it, you couldn’t possible have done anything about it.


The Statute of Limitations (Amendment) Act 1991 introduced the ‘date of knowledge’ for personal injury cases. The date of knowledge is defined as the date a person (or a personal representative or dependent of a dead person) had knowledge that the injury had occurred, that it was significant, and that it was attributable to negligence or breach of duty, and knew the identity of the defendant. To put is simply, the date of knowledge principle exists to protect people from the time limit running down before they realise they have suffered an injury and can bring an action. The test for the date of knowledge is primarily a subjective test, with the objective element of what information a plaintiff could reasonably be expected to acquire.


It’s also important to realise that all personal injury claims, once an application has been made to the injuries board, will benefit from the six-month stay afforded by the Injuries Board.


Important time limits for different areas of law in Ireland;


Breach of contract – 6 years

Estate – 6 years

Land (adverse possession) – 12 years or 30 years in the case of the State

Unfair Dismissal – 6 months

Assault – 6 years

Nuisance – 3 years

Defamation – 1 year

Medical Negligence – 2 years*


(A provision in the Legal Services Regulation Act 2015, once it is commenced, will extend the time period within which to issue proceedings claiming medical negligence from 2 years to 3 years)


Sending a letter; you have 1 month

Arising from Section 8 of the Civil Liability and Courts Act 2004, and the Supreme Court judgment in Doyle v Banville [2018] 1 IR 505, as of January 2019 a plaintiff must send their ‘letter of claim’ within 1 month from the date of the cause of action. If one fails to do so, the Judge who ultimately hears the case shall draw such inferences as appear proper and either refuse to award legal costs to the plaintiff or reduce those costs, where the interests of justice require it.


All of this means that you have less time within which to serve a letter of claim on the defendant and that it is now mandatory that the trial Judge to consider imposing the adverse consequences outlined above where this fails to occur. This new language means that any court hearing a personal injuries action must, at a minimum, consider the failure in terms of costs orders.


If a letter of claim was not sent within the prescribed period, the reasons for such failure must now be inserted in the Personal Injury Summons at the time of issuing the Summons. If that cannot be done, for whatever reason, that information must be inserted, by way of amendment or otherwise, prior to service of the that Summons.


The rationale for this change is borne out of the following;


a. To assist in enhancing the effectiveness of the statutory requirement for a plaintiff to serve a notice in writing on the defendant

b. The retention period for data protection purposes is one month, beyond which retention is only permitted in certain circumstances (i.e. CCTV preservation)


Disclaimer:


WHEN LOOKING FOR LEGAL ADVICE, PLEASE REMEMBER THAT THESE PUBLICATIONS, GUIDES & INFORMATION ARE TO PROVIDE GENERAL INFORMATION ONLY. SPECIFIC ADVICE ON YOUR CASE SHOULD ALWAYS BE OBTAINED. ALWAYS USE THE SERVICES OF A SOLICITOR REGULATED BY THE LAW SOCIETY OF IRELAND ON LEGAL MATTERS. IT IS YOUR GUARANTEE OF A PROFESSIONAL, QUALIFIED AND REGULATED SERVICE.


Author:

Daniel O'Connell, Senior Associate

Email: doc@reb.ie


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