A TRIBUTE TO OUTGOING PAST PRESIDENT BRIAN GALLAGHER

LITIGATION - BACK
TO BASICS
Basic Guide to Personal
Injuries Assessment
Board/Personal Injury
Procedure
Most members may find this simple guide
to procedure for personal injuries as
surplus to requirements or too basic to
consider, however, there is certainly no
harm in revisiting the fundamentals and
members who do not practice exclusively
in personal injury cases will hopefully get
some benefit.
Remind me? What cases are
involved?
Section 3 of the PIAB Act, 2003 sets out
that the PIAB procedure must be adopted
in a civil action for
Employee against his/her employer for
negligence or breach of duty arising in the
course of employment with that employer.
Action by a person against another arising
out of that others ownership, driving or
use of a mechanically propelled vehicle.
Action by a person against another arising
out of that others use or occupation of
land or any structure or building.
Not falling within any of the proceeding
paragraphs other than cases of medical or
surgical negligence.
Do I need a section 68 letter for
these cases?
Yes a Section 68 letter must be issued to
the client setting out where possible the
costs that will be incurred for you to
conduct the case for the client through the
PIAB. With recent developments and
particularly the costs report and indeed the
new overall focus on legal fees its seems
to be expected that solicitors would quote
an hourly rate as opposed to basing a fee
on the possible quantum size of the case.
It is preferable that the client would sign
the section 68 letter which should be
retained on the file.
How do we approach the Personal
Injuries Assessment Board?
Form A1 must be completed by the client
at instruction stage if possible and also in
addition the solicitor should get a letter of
authority from the client addressed to
PIAB explaining that PIAB is from that
point forward to deal with that applicant’s
solicitor and not directly with the
applicant. The Law Society have produced
a precedent which suffices for this task.
Do I contact PIAB or the
Defendant/Respondent?
An initial letter should be sent to the
Defendant/Respondent advising them of
the client’s cause of action and offering
them the opportunity to compensate at that
stage. This should be done within two
months of the date of the incident
concerned or as soon as practicably
possible thereafter. There are new
implications in relation to costs where this
tight time frame is not adopted. As before
where there is potentially more than one
Defendant/Respondent the “O’Byrne”
letter must issue to the relevant parties.
What happens next?
Depending on the response received (if
any) you should then be in a position to
formally lodge your application with
PIAB. In order to do so you require the
following.
Completed application form.
Original letter/authority from the claimant
to PIAB.
Medical report from the client’s doctor.
Copies of any correspondence between
the client and the Respondent or the
client’s solicitor and the
Respondent/Insurance Company.
Any vouchers, receipts or documentary
proof in respect of any financial loss
suffered by the client/loss of earnings.
Cheque for 50.00 payable to PIAB.
Any other documentation relevant to the
claim.
How long does it take?
The solicitor should immediately seek to
get acknowledgement from PIAB that the
application is deemed received and
complete under section 50 of the PIAB
Act, 2003. Remember that the Statute of
Limitations continues to run until this
formal notification is received. Once
received the Statute of Limitations is on
hold until the claim has been dealt with
and until six months thereafter.
Is that all it takes?
There may be further or additional
information required by PIAB. They may
refer your client to a medical attendant.
PIAB will effectively engage the
Respondent with a view to settling the
claim provided they accept full liability. If
the Respondent decides to have the claim
assessed then your client should quantify
in so far as possible the loss incurred and
also make reference to the Book of
Quantum before accepting or rejecting any
assessment amount.
What happens if the Respondent declines
to have the claim assessed?
PIAB will issue an authorisation to
proceed to court. Pleadings should be
drafted and issued through the appropriate
court office and the authorisation from
PIAB will be necessary to do this.
Teething problems are still being
experienced when solicitors attempt to
issue these proceedings and the DSBA is
attempting to iron out these administrative
problems with Court Services but the
intention is that a Personal Injuries
Summons will be issued and served on the
Defendant.
What happens if the Respondent accepts
liability but the client refuses to accept the
amount of the assessment?
It is important to note that under section
51(1) of the PIAB Act the PIAB
procedure is effectively “without
prejudice” and no admission of liability
within the PIAB procedure will be
permitted in the substantive proceedings
themselves. In these circumstances it
could be viewed that the entire procedure
is a waste of time and of no assistance in
deciding the case either way. However,
the commencement of court proceedings
opens the matter as if for the first time, or
“ab initio”.
Aaron McKenna, Chair of the Litigation
Committee
Note: the Lawsociety have prepared
precedents for practice for PIAB which
can be accessed in the members area of
the Lawsociety website
www.lawsociety.ie
Warning – 30 TH March 2007
Statute of Limitations
Deadline Approaching–
Check your litigation files
The Litigation Committee wishes to
remind members that the 30 th of March
2007 is fast approaching. What is the
significance you might ask? You may
recall that the Civil Liability and Courts
Act, 2004 under section 7, reduces the
Statute of Limitations in respect of
personal injury claims from three years to
two years. The commencement of the
section was the 31 st of March 2005 and
this means that the two year period in
question expires on the 30 th of March
2007. This affects cases post 31 st March
2004 up to 31 st March 2005, as the
limitation period for incidents that
happened between these dates expires on
the 30 th of March 2007.
Members are reminded of the importance
of section 50 of the Personal Injuries
Assessment Board Act, 2003 which
stipulates that the clock on the Statute of
Limitations stops running as soon as the
application is acknowledged to have been
received completed by PIAB. It is
common practice for PIAB to
“acknowledge” receipt of the application
but not to specifically state in their
replying correspondence that the Statute
of Limitations stops running in accordance
with section 50 of the said Act. Members
should insist that they get this
acknowledgment from PIAB if they do
not receive it automatically. Members
should also bear in mind that once PIAB
has furnished an authorisation under the
2003 Act allowing a client to proceed to
court that the two year Statute of
Limitations does not continue until six
months has elapsed after the date of the
authorisation. This provides obviously an
extra period of time in which to prepare
proceedings or otherwise, however, the
Litigation Committee would strongly urge
that members give themselves plenty of
time and possibly implement some kind of
an organised diary reminder system in
order to avoid any close calls.
Aaron McKenna, Chair of the Litigation
Committe
CONVEYANCING
e-conveyancing
GO SOFTLY INTO THE NIGHT–
rising to the challenge of
e-conveyancing and the new future
of conveyancing following the Law
Reform Commission’s Report,
Justin McKenna sets out the way
forward
The Property Registration Authority
(PRA) is going to have to pull the legal
profession all the way if it is going to
succeed in making econveyancing a
reality. The technology is there. All we
have to do is join up the thinking.
The Law Reform Commission in its recent
report adopted the model assembled by
BearingPoint in which agents like
solicitors are lined up on one side of a hub
while information providers like the Land
Registry are positioned on the other. The
thing is, whatever this hub is supposed to
do, it has to enable land deals to happen
from a pc or an ipod.
Buy it, bank it, or even blog it but the
rules for living in it, labouring in it, or just
lingering in it will be governed by what it
says on the tamperproof website. The
written word will be on the internet and
accessible by all. Enforceability of the
rules (or what we used to call
“covenants”) will have nothing to do with
positive or negative points of view. The
new principles of conveyancing will be
governed by money and virtual signatures.
The digital hub will control the key to
ownership and the management of charges
over land.
The paper free solution should,
coincidentally, provide us with a cure for
the thorny problem of how to buy, sell,
mortgage or manage an apartment.
Buying an apartment will be as easy as
buying a share in a company.
Changing the way we do things will
require the cooperation of all the vested
interests. These include solicitors, banks,
insurance companies, revenue,
auctioneers, managing agents and others.
At present each acts for the benefit of
itself and its own client but this system
can be adversarial. The concept of ‘buyer
beware’ has no place in the vision ahead.
The cooperative experiment must go
further. It will also include the
registration authorities beginning with the
PRA, ordnance survey, the court services,
local authorities and others. These offices
do not have clients in the conventional
sense since they are public bodies. There
is a commonality that is relevant to us as
practitioners. They all contain lawyers.
But the survival of all the vested interests
depends on how each service is to be
financed. The Competition Authority
already plays an active role in this area.
When the system is drawn to its logical
conclusion the consumer will face a single
charge to be disbursed throughout. The
frontline service provider plays a critical
role in setting the mark for remuneration.
The challenge ahead for the legal
profession is to educate the profession in
the prospect of the inevitable, prepare its
graduates for adaption and then take the
lead in ensuring that the solicitor becomes
the digit in the hub.
Justin McKenna is a past President of
the DSBA, a member of the
Conveyancing Committee and spoke at
the December 2006 Conveyancing CPD
seminar on dealing with the practical
implications of the Law Reform
Report.
More Information on
e-conveyancing
At the DSBA seminar in December 2006
Ms. Patricia Rickard Clarke updated
practitioners on the implications for
conveyancers of the Land Conveyancing
and Law Reform Bill and the Report and
Frank Lanigan highlighted ways
solicitors can use technology to become
more efficient. The papers from the
December 2006 Conveyancing CPD can
be ordered from the DSBA, email:
maura@dsba.ie for details of price and
availability. The Law Reform
Commission’s report can be viewed in
full on their website www.lawreform.ie
and the Autumn 2006 Parchment
contains a summary of the Law Reform
report by Garbhan O’Nuallain.
PRACTICE
MANAGEMENT
2007 – The year of Training
In 2006, the DSBA in association with
Anne Neary Consultants ran a number of
very successful seminars in the area of
practice management throughout the year.
The idea arose from a meeting between
Brian Gallagher and Anne Neary at our
first regional meeting in Rosie O’Grady’s
Harold’s Cross where Brian had invited
the solicitors working in the Dublin 6, 6w
and Dublin 12 areas to meet him to raise
the issues facing solicitors in practice and
so that the DSBA could better address the
interests of its members.
The type of issues which were discussed
at that meeting indicated that there was a
general concern among members about
the more difficult climate in which
everyone found themselves working. The
problems extended from the lack of time
to properly manage their practices to their
own lack of training and expertise in
practice management issues. There was a
discussion concerning the increase in
regulation and how solicitors could equip
themselves to deal with the amount of
criticism expressed in the media.
That meeting started a chain of events
which resulted in a very ambitious plan –
devising a completely comprehensive
practice management system for
solicitors, which would be supported by a
major publication on practice
management, seminars, and ultimately
extend to training.
We therefore presented two major
seminars on practice management called
Building a Dynamic Profitable
Practice, a seminar on banking Banking
– How to Add Value to Your Bottom
Line and published Anne Neary’s The
Solicitor’s Toolkit.
We covered a comprehensive range of
topics – see below - and invited experts in
many disciplines to address us. We
covered traditional topics and cutting
edge topics, but always within our vision
of a comprehensive management system.
Everything we do in the area of practice
management is used as a building block
for the next step.
Effective Billing Strategies
Financial Management
Risk Management
Information Technology
Knowledge Management
Dynamic Marketing Strategies
Building your website
Banking