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46 2003

Personal Injuries Assessment Board Act 2003

PART 2

Mandatory Assessment Procedures in respect of Certain Civil Actions

Chapter 1

Mandatory applications for assessment

“Relevant claim”.

9. —In this Chapter “relevant claim” means a civil action to which this Act applies.

What this Chapter does.

10. —This Chapter—

(a) specifies certain procedures that must be employed by—

(i) every claimant who wishes to recover damages in respect of a relevant claim, and

(ii) the Board in consequence of those procedures having been employed by such a claimant,

and

(b) prohibits the bringing of proceedings in respect of such a claim unless specified conditions are satisfied.

Application for assessment.

11. —(1) A claimant shall make an application under this section to the Board for an assessment to be made under section 20 of his or her relevant claim.

(2) That application shall be in the form specified by rules under section 46 and be accompanied by such documents as may be so specified.

(3) Without prejudice to the generality of section 46 as regards the documents that may be specified for the foregoing purpose, the documents that may be specified for that purpose include—

(a) a document that has been given or sent, by or on behalf of the claimant, to the person or persons whom he or she believes to be liable to pay compensation to him or her in respect of the claim, notifying the person or persons of his or her relevant claim and seeking the payment of compensation,

(b) copies of any other correspondence between the claimant and that person or those persons in relation to the relevant claim,

(c) a report prepared by a medical practitioner who has treated the claimant in respect of the personal injuries, the subject of the relevant claim, in relation to those injuries,

(d) receipts, vouchers or other documentary proof in relation to loss or damage in respect of which special damages are being sought in the relevant claim.

(4) If an enactment or a rule of court (whether passed or made before or after the passing of this Act) requires notice of any accident or occurrence that has given rise to personal injuries being sustained by a person to be given, prior to a civil action being pursued in respect of those injuries, to the person or persons alleged to be responsible for them, then the reference in subsection (3) (a) to the document mentioned in that provision shall be construed as a reference to such a notice.

(5) When it appears to the Board, in circumstances where the presumption provided for by section 18 (presumption as to full capacity) is rebutted in relation to the applicant, that an applicant under this section is not of full capacity the Board shall not deal with the applicant's application (but without prejudice to its duty, subject to section 17 , to deal with a fresh application subsequently made under this section on his or her behalf by a next friend or a committee of him or her).

Bar on bringing proceedings unless certain conditions are satisfied.

12. —(1) Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14 , 17, 32 or 36, rules under section 46 (3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim.

(2) Nothing in subsection (1) or any other provision of this Act is to be read as affecting the right of a claimant or a respondent to invoke, subject to and in accordance with this section, the jurisdiction of any court to make an order referred to in subsection (3) that could be made if proceedings, but for subsection (1), were to be brought or were about to be brought in respect of the relevant claim and the court shall, accordingly, have jurisdiction, subject to and in accordance with this section, to make such an order despite the enactment of subsection (1).

(3) The order mentioned in subsection (2) is any order of an interlocutory kind or power to make which is provided for by rules of court or otherwise inherent in the court's general jurisdiction in civil proceedings and, in particular, an order restraining the transfer of assets to a place outside the State for the purpose of defeating the rights of another arising out of the relevant claim or the dissipation of assets for that purpose and an order requiring evidence to be preserved.

(4) In relation to the invocation of the foregoing jurisdiction of the court the following provisions have effect—

(a) the application for the order concerned shall be made by motion on notice or, as appropriate, ex parte motion,

(b) without prejudice to the principles or rules that govern generally the exercise of that jurisdiction, the court shall not exercise that jurisdiction to make any order (not being an order relating to the transfer or dissipation of assets) unless it is satisfied that—

(i) the making of the application therefor is bona fide and for the sole purpose of ensuring the fair and just disposition of any proceedings that could be brought in the event of the issue of an authorisation referred to in subsection (1), and

(ii) the making of the order is required so as to enable the fair and just disposition of those proceedings,

and the court shall ensure that the manner in which any such application is dealt with does not prejudice any procedures which are being or may be followed under this Act in relation to the relevant claim,

(c) on the hearing of any such application the court shall have power to grant the relief sought or, subject to this section, make any other interlocutory order that is appropriate to the application or may adjourn, from time to time, the hearing of the application or dismiss the application and, in any of the foregoing cases, may make such order as to costs as it considers appropriate,

(d) the person making any such application shall be subject to the same duties as he or she would be subject to if the application were to be made in the course of proceedings brought in respect of the relevant claim and may (in addition to any undertaking he or she may be regarded as having given by operation of law) be required to give such undertakings as the court may specify in the circumstances,

(e) in the event of proceedings being brought in respect of the relevant claim pursuant to an authorisation referred to in subsection (1), any order made in exercise of the foregoing jurisdiction shall be deemed to be an order made in the course of those proceedings and the court may, accordingly, continue to exercise jurisdiction in respect of the order, and

(f) in the event of no proceedings being brought in respect of the relevant claim, the court may make such order as to the discharge of the order referred to in paragraph (e), to any other matters in consequence of the order so referred to and to the costs of the matter as in necessary or appropriate in the circumstances.

(5) The issuing of a notice of motion or the moving of a motion for the purposes of an application referred to in subsection (4) shall not be regarded as the commencement of proceedings in respect of the relevant claim for the purposes of the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act 1991 .

Notification of application to respondent and ascertainment of his or her wishes.

13. —(1) As soon as practicable after receipt of an application under section 11 the Board shall serve the following notice on the person or each of the persons who the claimant alleges in the application is or are liable to him or her in respect of the relevant claim (who or each of whom is referred to in this Part as a “respondent”).

(2) That notice is a notice stating that the Board has received an application made under section 11 by the claimant and requesting the respondent to state to the Board in writing, within the period specified in the notice, whether he or she consents to an assessment being made under section 20 of the claimant's relevant claim.

Procedures on foot of notification under section 13 .

14. —(1) If a respondent—

(a) states in writing, in response to a notice under section 13 , within the period specified in it, that he or she does consent to an assessment being made under section 20 of the claimant's relevant claim, or

(b) fails to state in writing, in response to that notice, within the period specified in it, whether or not he or she does so consent,

then the Board shall, subject to sections 17 and 18, arrange for an assessment to be made under section 20 of that claim.

(2) If a respondent states in writing, in response to a notice under section 13 , within the period specified in it, that he or she does not consent to an assessment being made under section 20 of the claimant's relevant claim, it shall be the duty of the Board, as soon as may be after that statement is received by it, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (4).

(3) Such a document is referred to in this Act as an “authorisation”.

(4) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim.

Procedures if not everyone of 2 or more respondents consents to assessment being made.

15. —If there are 2 or more respondents as respects a relevant claim and one or more but not all of them makes a statement in writing of the kind referred to in section 14 (2) the following provisions have effect—

(a) the Board, despite the making of such a statement, shall, subject to sections 17 and 18, arrange for an assessment to be made under section 20 of the claimant's relevant claim,

(b) the assessment made under that section, though subsequently accepted, if such be the case, by the other respondent or respondents, shall not be binding on the respondent or respondents who made such a statement, (the “non-participating respondent or respondents”), and

(c) section 14 shall have effect as if the following subsections were substituted for subsection (4):

“(4) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against only the non-participating respondent or respondents (within the meaning of section 15 ) but this subsection is subject to the following subsection.

(5) Subsection (4) does not prejudice the operation of section 41 (which relates to the application of section 16 of the Act of 1961 (satisfaction by one wrongdoer discharging the other wrongdoer or wrongdoers)) and, accordingly, the proceedings authorised by that subsection to be brought—

(a) shall cease to be maintainable if the amount or amounts specified in an order to pay that may eventually be issued by the Board in respect of the relevant claim are paid to the claimant, or

(b) if only a portion of the amount or amounts specified in such an order to pay that may eventually be issued is paid to the claimant, shall be maintainable in respect of only the balance outstanding.”.

Making of, or omission to make, statement referred to in section 14 not an admission of liability.

16. —Neither a statement referred to in paragraph (a) of subsection (1) of section 14 nor a failure of the kind mentioned in paragraph (b) of that subsection shall constitute an admission of liability by the respondent concerned or be capable of being used in evidence against him or her in any proceedings or operate in any manner to prejudice any proceedings.

Discretion of Board not to arrange for making of assessment.

17. —(1) Despite—

(a) the making by a respondent of a statement referred to in section 14 (1)(a), or

(b) the fact that a failure by him or her of the kind referred to in section 14 (1)(b) has occurred,

the Board shall not be required to arrange for the making of an assessment under section 20 of the relevant claim concerned (or, as appropriate, shall discontinue any such assessment the making of which it has arranged) if—

(i) in its opinion, there does not exist, or there has not been previously entered into, in relation to the type of personal injury or injuries to which the relevant claim relates, a sufficient body of case law or, as the case may be, a sufficient number of settlements to which regard may be had by the assessors for the purpose of making such an assessment, or

(ii) in its opinion, it would not be appropriate to do so—

(I) because of the particular complexity of the issues that would require to be addressed were an assessment of the relevant claim to be made such as (without limiting the generality of this clause) issues involving the interaction between each of a number of injuries the claimant alleges he or she sustained in the accident or incident concerned or the interaction between one or more such injuries and any existing condition or disease the claimant suffered from or any injury he or she previously sustained, or

(II) because the injury or injuries alleged to be sustained consist wholly or in part of psychological damage the nature or extent of which it would be difficult to determine by the means of assessment to which the assessors are limited to employing by this Act, or

(III) because aggravated or exemplary damages are bona fide (and not for the purpose of circumventing the operation of this Act) sought to be recovered in the relevant claim, or

(IV) in case the relevant claim arises out of a trespass to the person, because the making of an assessment of the claim by the means to which assessors are limited to employing by this Act would not respect the dignity of the claimant, or

(V) because the gravity of any injury or illness of the claimant is such that, were proceedings to be brought in respect of his or her relevant claim, an early trial of the claim would, in the Board's opinion, be ordered to be held to meet the contingency of the claimant's dying before the time the claim would otherwise, in the ordinary course of events, come on for trial,

or

(iii) in its opinion, the period of time for which the making of such an assessment would have to be deferred (in order for a long term prognosis in respect of the personal injury or injuries to which the relevant claim relates to be made) would be likely to result in section 49 not being complied with, or

(iv) in its opinion, the person purporting to act as a next friend, or as the case may be, a guardian of the claimant or a respondent has a conflict of interest in the matter, or otherwise would not be entitled to act as a next friend or guardian of the claimant or respondent were the relevant claim to be the subject of proceedings, and steps are unlikely to be taken in a timely fashion to secure an appropriate replacement for him or her, or

(v) in its opinion, the relevant claim falls within a class of relevant claims as respects which the Board has, with the consent of the Minister and the Minister for Justice, Equality and Law Reform, for the time being declared there to be other good and substantial reasons for its not arranging the making of such an assessment in respect of them.

(2) As soon as may be after the Board forms an opinion referred to in any of paragraphs (i) to (v) of subsection (1), the Board shall record that opinion in writing and the reasons therefor.

(3) In addition to the grounds specified in subsection (1) for its not doing so, the Board may, in its discretion, decide not to arrange for the making of an assessment under section 20 of a relevant claim if a charge imposed by it pursuant to regulations under section 22 (1) on a respondent has not been paid to it; any such decision shall be recorded in writing by the Board as soon as may be after it is made.

(4) It shall be the duty of the Board, as soon as may be after recording an opinion or a decision referred to in subsection (1) or (3), to issue to the claimant concerned a document that contains the statement and operates to have the effect mentioned in subsection (6).

(5) Such a document is also referred to in this Act as an “authorisation”.

(6) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim.

(7) If an authorisation would fall to be issued under both—

(a) this section, and

(b) but for this subsection, section 14 as it has effect by virtue of section 15 ,

then an authorisation shall only be issued under this section.

Presumption as to capacity of claimant and respondent.

18. —(1) Subject to subsections (2) and (3), for the purpose of the performance of every function under this Part the Board shall presume that the claimant and the respondent or respondents are each of full capacity.

(2) If—

(a) rules under section 46 require an application under section 11 to include a statement that the claimant is of full age, or

(b) rules under that section require the Board, before it deals with a claimant or a respondent under this Part, to seek confirmation from the claimant or the respondent that he or she is of full age,

then subsection (1), in so far as it relates to a person's being of full age, shall not apply unless and until that requirement of those rules is complied with or that confirmation is given by the claimant or the respondent.

(3) Subject to subsection (4), if, during the course of the performance by the Board of its functions under this Part, a medical opinion in writing is furnished to the Board to the effect that the claimant or a respondent is not of sound mind then the presumption in subsection (1) shall be regarded as rebutted and the Board shall, as appropriate—

(a) not arrange for the making of an assessment of the relevant claim concerned, or

(b) if any step in the making of that assessment, or consequent on the making of that assessment, has already been taken, cause no further step to be taken in the making of that assessment or consequent on its making,

unless, in the case of such an opinion that has been furnished in respect of one or more than one of 2 or more respondents, no such opinion has been furnished in respect of the other or others or the claimant.

(4) Nothing in subsection (1) or paragraph (a) or (b) of subsection (3) applies if—

(a) in the case of a claimant, a next friend or a committee of the claimant is acting on his or her behalf, and

(b) in the case of a respondent, a guardian or a committee of the respondent is acting on his or her behalf.

(5) No action or proceeding shall lie against the Board or any of its members or employees in respect of anything which the Board, the member or the employee could have lawfully done or omitted to do had the circumstances presumed by virtue of subsection (1) to pertain pertained in fact.

(6) If such an opinion as is referred to in subsection (3) is furnished in respect of one or more than one, but not all, of 2 or more respondents and subsection (4) does not apply then the Board shall record in writing the fact of its having received that opinion and no assessment made under this Part in relation to the relevant claim shall bind the respondent or respondents to whom the opinion relates.