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Order 40A
Personal Injuries Proceedings : S.I. No. 17 Of 2014
The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):
No40A-S.I. No. 599 Of 2014: District Court (Personal Injuries) Rules 2014
No40A-S.I. No. 513 Of 2016: District Court (Issue Of Civil Proceedings) Rules 2016
No40A-S.I. No. 102 Of 2017: District Court (Order 40A) Rules 2017
No40A-S.I. No. 327 Of 2019: District Court (Personal Injuries: Section 8 Notices) Rules 2019
Related link
S.I. No. 17 of 2014 - provisions overview
1 — DEFINITIONS
1 Definitions
1. In this Order, unless the context or subject matter otherwise requires—
the “2003 Act” means the Personal Injuries Assessment Board Act 2003 (No. 46 of 2003);
the “2004 Act” means the Civil Liability and Courts Act 2004 (No. 31 of
2004);
“assessors” has the meaning given by section 20(2) of the 2003 Act;
the “Board” has the meanings given to it by section 4 of the 2003 Act; “claimant” includes a deceased person, where personal injuries proceedings are instituted for the benefit of dependants of a deceased person;
“order” includes any judgment, decree or dismiss;
“personal injuries proceedings” means an action for the recovery of damages,
in respect of a wrong, for—
(a) personal injuries,
(b) both such injuries and damage to property (but only if both have been caused by the same wrong), or
(c) under section 48 of the Civil Liability Act 1961 (No. 41 of 1961),
but does not include an action where the damages claimed include damages for false imprisonment or trespass to the person, and “proceedings” must be interpreted accordingly;
“personal injuries summons” means a summons by which personal injuries proceedings are begun in the Court in accordance with rule 3;
“pleading” has the same meaning as in section 2 of the 2004 Act;
“Personal Public Service Number” or “PPSN” means the Personal Public Service Number allocated and issued to a person under section 241B of the Social Welfare Consolidation Act 2005 (No. 26 of 2005).
2 — PERSONAL INJURIES PROCEEDINGS UNDER THE 2004 ACT
2 Priority of provisions of this Order in personal injuries proceedings
2. (1) The provisions of this Order apply to personal injuries proceedings. (2) Save where otherwise expressly provided by this Order, if any conflict arises between the provision of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order prevails in respect of personal injuries proceedings.
3 Venue
3. (1) Save where otherwise provided by these Rules or by an Act and subject to Order 41B and the Conventions to which it relates, a personal injuries summons must be filed with and issued by the Clerk assigned to the Court area in which the respondent or one of the respondents ordinarily resides or carries on any profession, business or occupation.
(2) Unless otherwise provided by law, personal injuries proceedings in the Court must be heard and determined at a sitting of the Court for the transaction of civil business for the Court area in which the personal injuries proceedings were brought.
(3) A personal injuries summons which has been issued by a Clerk is deemed to have been issued on the date on which it was filed with the Clerk for issue.
4 Form of personal injuries summons
4. (1). Personal injuries proceedings in the Court must be instituted by the issue for service on each respondent of a personal injuries summons in the Form No. 40A.01, Schedule C.
(2) Save where otherwise expressly provided by this Order, the provisions of these Rules which apply to a claim notice apply, with appropriate modifications, to a personal injuries summons.
5 Content of personal injuries summons
5. (1) A personal injuries summons must specify:
(i) the claimant’s name, the address at which he or she ordinarily resides and his or her occupation;
(ii) the claimant’s Personal Public Service Number (and where a claimant has not been issued with a PPSN, this must be stated in the personal injuries summons);
(iii) the respondent’s name, the address at which the respondent ordinarily resides (if known to the claimant) and the respondent’s occupation (if known to the claimant).
(2) In any proceedings the bringing of which requires to be authorised in accordance with sections 14, 17, 32, 36 or 49, or rules under section 46(3) of the 2003 Act, the personal injuries summons must contain a statement:
(a) confirming that the proceedings have been authorised by the Personal Injuries Assessment Board,
(b) specifying the section of the 2003 Act or the rule made under section 46(3) of the 2003 Act in accordance with which such authorisation has been issued, and
(c) citing the date of issue of the authorisation and any reference or record number relating to such authorisation.
6 Particulars of claim in personal injuries summons
6. (1) A personal injuries summons must:
(a) set out full and detailed particulars of-
(i) the nature of the claim and of each allegation, assertion or plea comprising that claim;
(ii) the injuries to the claimant alleged to have been occasioned by the wrong of the respondent;
(iii) the acts of the respondent constituting the wrong and the circumstances relating to the commission of the wrong;
(iv) each instance of negligence by the respondent, and
(b) contain a schedule of full particulars of all items of special damage in respect of which the claimant is making a claim.
(2) Where a claimant alleges that he or she was unable, at the time at which a personal injuries summons was issued, to include in the personal injuries summons any of the information required by this rule to be specified in the personal injuries summons, he or she must include in the personal injuries summons a statement of the reasons why it is claimed that any such information could not be provided at the time of issue of the personal injuries summons. The claimant must, when the personal injuries summons is served or as soon as may be thereafter (whether by amendment or otherwise) provide and verify such of the information required by this rule as was not included in the personal injuries summons.
7 Form of personal injuries defence
7. (1) Each respondent who intends to defend the personal injuries proceedings must deliver to the claimant (or his solicitor) an appearance and defence in the Form 40A.02, Schedule C and file a copy of the appearance with the Clerk within 28 days after the service on him or her of the personal injuries summons.
(2) Where any respondent makes a counterclaim, the counterclaim must be in the Form 40A.03, Schedule C and must be appended to the defence.
8 Affidavit of verification under section 14 of the 2004 Act
8. (1) An affidavit of verification of a pleading or of further information requiring to be verified on oath under section 14(1) or section 14(2) of the 2004 Act must be in the Form 40A.04, Schedule C.
(2) The affidavit may be endorsed on the pleading or other document concerned, or may exhibit the relevant pleading or other document.
(3) A copy of the affidavit of verification must be delivered to the party to whom the pleading or other document is to be delivered.
(4) Where the affidavit is endorsed on the pleading or other document, it must be delivered within the time prescribed by these Rules for delivering the pleading or other document. Otherwise, the affidavit must be delivered within the time prescribed by section 14 of the 2004 Act for filing the affidavit in Court.
(5) Where the affidavit of verification is delivered after delivery of the pleading or other document, the time prescribed by these Rules for delivery of any pleading or other document in reply runs from the date of delivery of the affidavit of verification.
(6) An affidavit of verification must be filed in Court as required by section 14(4) of the 2004 Act by filing the original affidavit duly stamped with the Clerk.
9 Applications by notice of motion in personal injuries proceedings
9. (1) The following applications in personal injuries proceedings must be made by application to the Court by motion on notice to the opposing party or parties. The notice of motion must be in the Form 40A.05, Schedule C, and must be supported by an affidavit sworn by or on behalf of the moving party:
(i) an application under section 9(2) of the 2004 Act (in the absence of agreement between or among the parties) for the extension of the period provided for in this Order or otherwise in these Rules, within which any document may be served or thing may be done;
(ii) an application by a respondent under section 10(3) of the 2004 Act for a stay or dismissal of proceedings by reason of a claimant’s failure to provide the information necessary to comply with section 10 of the 2004 Act;
(iii) an application by a respondent under section 11(3) of the 2004 Act for a stay or dismissal of proceedings by reason of a claimant’s failure to provide further information requested under section 11(1) or section 11(2) of the 2004 Act;
(iv) an application by a claimant under section 12(3) of the 2004 Act for a stay of proceedings or for judgment by reason of a respondent’s failure to provide the information necessary to comply with section 12 of the 2004 Act;
(v) an application by a party for a direction of the Court under section 15 of the 2004 Act that a mediation hearing be held;
(vi) an application to the Court to order delivery by the opposing party of further and better particulars of any pleading delivered by that opposing party;
(vii) an application by a party wishing to have evidence given by affidavit, under section 19 of the 2004 Act;
(viii) an application by a party wishing to have an approved person appointed to carry out any investigation and to give any evidence in relation to any matter, under section 20 of the 2004 Act.
(2) No application described in sub-rule (1) may be issued unless:
(a) the moving party has first written to the relevant opposing party requesting that the relevant opposing party agree to any extension proposed or (as the case may be) provide the information identified in, or agree to, the moving party’s request;
(b) a period of 14 days for compliance with the moving party’s request has been allowed; and
(c) the party requested has failed, refused or neglected to comply with such request.
(3) No application for judgment in default of defence may be granted in personal injuries proceedings unless the moving party has satisfied the Court that he has verified his personal injuries summons in those proceedings on oath in accordance with this Order.
10 Adjournment to facilitate mediation
10. (1) Where in accordance with section 15 of the 2004 Act the Court directs that a mediation conference be held, it may adjourn the personal injuries proceedings for such time as it considers appropriate to enable the mediation hearing to be held.
(2) Where the Court directs that a mediation conference be held, it may extend the time for compliance by the parties or any of them with any provision of these Rules or any order of the Court in the personal injuries proceedings.
(3) The report under section 16 of the 2004 Act of the person appointed under section 15(4) of the 2004 Act to be the chairperson of a mediation hearing must be provided in an affidavit which must verify:
(a) his or her appointment as mediator;
(b) whether the mediation hearing was or was not held;
(c) if not held, the reasons why the mediation hearing did not take place;
(d) if held—
(i) the time and place at which the mediation hearing was held;
(ii) the parties in attendance;
(iii) whether or not a settlement was reached in the personal injuries proceedings, and
(iv) the terms of any settlement signed by the parties.
11 Offer of settlement
11. (1) Copies of the claimant’s notice of an offer of terms of settlement required by section 17(1) of the 2004 Act and of the respondent’s notice required by section 17(2) of the 2004 Act must be filed in Court.
(2) Copies of the notices referred to in sub-rule (1) must be filed by being delivered, together with an affidavit or statutory declaration of service of the notice on the opposing party, to the Clerk as soon as may be after the expiry of the prescribed period referred to in section 17(3) of the 2004 Act.
(3) The notices referred to in sub-rule (1) must be in the Form 40A.06, Schedule C.
(4) The notices referred to in sub-rule (1) must not be given or produced to the Judge before the determination of the personal injuries proceedings.
12 Pre-trial hearing
12. (1) A pre-trial hearing as provided for in section 18 of the 2004 Act must be held in personal injuries proceedings where the Court, on the application by motion on notice to the opposing party or parties by the party wishing to apply for a pre-trial hearing, considers that a pre-trial hearing is appropriate.
(2) A Judge presiding over a pre-trial hearing may at such hearing give such directions and make such orders as he or she considers necessary for the purposes of determining what matters relating to the proceedings are in dispute.
3 — APPLICATIONS UNDER THE 2003 ACT
13 Application for approval of an assessment
13. (1) An application for the approval by the Court of an assessment under section 35(2) of the 2003 Act must be made by notice of motion in the Form 40A.07, Schedule C.
(2) The notice of motion must be filed in and issued by the Clerk assigned to the Court area in which the respondent or one of the respondents ordinarily resides or carries on any profession, business or occupation.
(3) The notice of motion must be supported by an affidavit entitled
“IN THE MATTER OF THE PERSONAL INJURIES ASSESSMENT BOARD ACT 2003
and
IN THE MATTER OF AN APPLICATION RELATING TO A.B., A [CHILD OR PERSON OF UNSOUND MIND], OF [ADDRESS] BY C.D., ACTING AS [STATE CAPACITY] ON BEHALF OF THE SAID A.B.”
(4) The notice of motion must be addressed to the respondent by name and must be served by the applicant on the respondent not later than seven days before the return date.
(5) The notice of motion must be served
(a) by delivering it to the respondent;
(b) by leaving it at the address at which the respondent ordinarily resides (or in the case of a company, its registered office) or, in a case in which an address for service has been furnished by the respondent, at that address, or
(c) by sending it by post in a prepaid registered letter to the address at which the respondent ordinarily resides (or in the case of a company, its registered office) or, in a case in which an address for service has been furnished, to that address.
(6) When considering an application concerning such an assessment the Court may appoint a person of full age to act as guardian ad litem of the child or, where appropriate, of the person of unsound mind.
(7) Where applicable, the provisions of Order 45, rule 7 (concerning lodgments) apply mutatis mutandis to assessments made in favour of children or persons of unsound mind approved in accordance with this rule in respect of the amount recoverable in accordance with section 38 of the 2003 Act.
(8) The Clerk must send by ordinary pre-paid post or by e-mail to the Personal Injuries Assessment Board a certified copy of any order made pursuant to this rule.
(9) If an order to pay issues in accordance with section 38 of the 2003 Act, a copy of the order to pay must be sent forthwith by the Personal Injuries Assessment Board to the Clerk by ordinary pre-paid post or in electronic form.
(10) If an order to pay issues in accordance with section 38 of the 2003 Act, the Court may direct investment in accordance with Order 43, rule 12.
14 Application to Court by assessors
14. (1) An application by an assessor for an order under section 27(2) of the 2003 Act must be made at a sitting of the District Court in the Court area within which the person against whom the order concerned is sought resides or carries on business.
(2) Such an application must be by notice of application in the Form 40A.08, Schedule C, and must be addressed to the respondent by name.
(3) Notice of the application must be served by the applicant not later than seven days before the return date. The notice must be served:
(a) by delivering it to the respondent;
(b) by leaving it at the address at which the respondent ordinarily resides or, in a case in which an address for service has been furnished, at that address; or
(c) by sending it by post in a prepaid registered letter to the address at which the respondent ordinarily resides or, in a case in which an address for service has been furnished, to that address.