Agnes Armstrong v Sean Moffatt & Ors
IRL High Court set out rules regarding notices for further particulars in personal injury cases, clarifying the extent to which the Civil Liability and Courts Act 2004 has altered practice in this regard.
In his judgement, Hogan J was highly critical of the practice of seeking particulars above and beyond the realms of necessity, describing how the particulars sought in many cases had “reached something of an art form”.
The Judge, in determining appropriate practice regarding this issue, set about analysing each of the particulars requested by the defendants in turn, and applying legal principles stemming from, and also predating the 2004 Act. He began by highlighting the changes enacted by the Civil Liability and Courts Act 2004 regarding pleading in personal injury cases. He outlined that Sections 10 and 13(1) of the 2004 Act outlined what information must be contained in a personal injury summons.
He also highlighted the fact that Section 11 also allows the defendant in a personal injuries action to request the following further information, namely:-
“(a) particulars of any personal injuries action brought by the plaintiff in which the court makes an award or damages,
(b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled,
(c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and
(d) the name of any persons from whom the plaintiff received such medical treatment…”
In turning to the general principles regarding the criteria for allowing particulars, Hogan J highlighted the judgement by Henchy J. in Cooney v. Browne [1984] I.R. 185, 191 of being of particular relevance, in which it was stated:
“Where particulars are sought for the purposes of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, or for some other special reason: see O. 19, r. 6(3). Where the particulars are sought for the purpose of a hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing….Thus, where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”
Commenting on this judgement, he stated that particulars are ordered in the interests of fair procedures and to ensure that a litigant will not be surprised by the nature of the case which he has to meet. He noted that the case-law shows that this is essentially the governing principle in all cases where the issue of whether the particulars should be ordered has been considered.
The first request in the defendants’ particulars which came under fire by Mr Justice Hogan was the issue of whether legal expenses insurance had been obtained, about which he stated “The question of legal costs insurance does not even remotely arise from any matter stated in any pleading.”He similarly disallowed queries relating to the time of the accident and whether an accident was called, stating that neither relates to the matters pleaded in the summons. Regarding the request for the identity of witnesses Hogan J did not find a personal injury case as remotely within that category, stating that the request in fact “effectively seeks to elicit evidence rather than clarify the scope of a pleading.” A request by the defendants for a narrative account of the accident was also dismissed as seeking “what amounts to a witness statement from the plaintiff by way of particulars.” The Judge also rejected a call to provide particulars of negligence and breach of duty as being already pleaded, requiring however that the plaintiff clarify her claim in respect of the Occupiers Liability Act 1995.
He similarly regarded a request for particulars of treatment as being irrelevant beyond those pleaded in the summons, questioning the relevance of the identity of the medical advisers or the details of any medication prescribed.
On the issue of a request for information regarding the plaintiff’s prognosis, the Judge rejected these as being already pleaded and stated that inquiries into social welfare and special-damage details were premature
The full judgement can be read here:
S. Major, Lacey Solicitors