CIVIL LITIGATION RECENT TRENDS DEVELOPMENTS PRESENTATION TO GALWAY

CIVIL LITIGATION – RECENT TRENDS & DEVELOPMENTS PRESENTATION TO GALWAY SOLICITORS BAR ASSOCIATION Shane Mac. Sweeney & Company 8 November 2018 www. macsweeneylaw. com

OVERVIEW 1. 2. 3. 4. 5. 6. 7. Mediation High Court – Pre-Trial Procedures, Conduct of Trials & Practice Direction Circuit Court – Civil Case Progression PIAB Damages in Personal Injury – recent developments Costs Miscellaneous v v v v Disclosure Rules Bullying Claims Exaggeration Assault Practice & procedure Undertakings GDPR Claims Periodic Payment Orders.

MEDIATION ACT 2017 � Effective 1 st January 2018 – enshrines mediation in law � “Statutory” obligation to “consider” mediation � Objective - greater recourse to mediation � Mediation – collaborative –disputes resolution with assistance of neutral “mediator” to achieve mutually acceptable outcome � All proceedings – except arbitration, WRC, tax/customs, judicial review, actions re fundamental rights, domestic violence/child law � Solicitor’s obligations: ◦ ◦ ◦ Advise client to consider mediation Supply information re mediation services Outline advantages of mediation Explain the process – voluntary/ confidential/ enforceable Statutory Declaration – not necessarily at initiation – but adjourn pending. Mac. SWEENEY & COMPANY

MEDIATION ACT 2017 � Costs penalties – “unreasonable refusal” to consider/attend � Mediation Agreement – stops clock for Statute of Limitations � Challenges: ◦ ◦ Cost of mediator & venue – often very significant Use / mis-use as a delaying tactic Not a panacea - Potential judicial procrastination Further burden/ complexity in practice. Mac. SWEENEY & COMPANY

High Court – Pre Trial Procedures & Conduct of Trials SI 253/2016 – Pre-Trial Procedures � SI 254/2016 – Conduct of Trials � Law 1 st October 2016 – Notice of Suspension 22 September 2016 � List Judge & Registrar – Chancery & Non-Jury � Pre-Trial Directions – wide powers akin to Commercial Court � Case Management – Mandatory attendance of solr – authority � Pre-Trial Conferences – very onerous – agree issues summary � Certificate of Readiness – Judicial function � Witness Statements – 30 days pre-trial (Evidence in Chief) – Requiring Defendant to “give” evidence � Modular trials. � Mac. SWEENEY & COMPANY

Pre Trial Procedures & Conduct of Trials (Cont. ) � Experts: ◦ ◦ ◦ Incl. expert/evidence in Statement of Claim/Defence Single expert Written questionnaire – 28 days Hot-tubbing – joint report on agreed/disputed evidence Bundling of Expert examination/cross examination Court Assessor - costs � Implications: ◦ ◦ Front loading work & costs – funding considerations Restricts access – prejudicial to rural practitioners Personal attendance in Dublin of Solicitor (not agent) Timing - demands on lodging papers. Mac. SWEENEY & COMPANY

Circuit Court – Civil Case Progression � Order 19 A (SI 539/2009) – Akin to Family Law Process � Equity; Succession; Spec Performance; Contract; Construction � Expeditious prep for trial, reduce costs, optimise resources � Motion – Parties/ County Registrar/ Judge � Summons in Form 8(a) – 21 day notice � Booklet of Pleadings – Plaintiff must lodge 7 days prior � Truncates process - very useful in getting all orders in one � Scope - timetable, narrow issues, direct pleadings, discovery, particulars, notices, inspections, accounts etc � Solicitor attends without client � Costs penalty. Mac. SWEENEY & COMPANY

PIAB � Book of Quantum: ◦ Published October 2016 – now 2 years old ◦ Verisk Analytics / Colour Coded / User Friendly / Detailed ◦ Increased granularity �Concussion / Food Poisoning / Partial Amputation ◦ Increases & decreases �Minor neck substantially recovered – up to € 16, 300 now € 14, 800 ◦ S. 22 Civil Liability & Courts Act 2004 – “have regard” ◦ Court also consider “other factors” – tend to “disregard” � 70% awards relate to whiplash � Average award of € 18, 581 gens/ € 1, 456 specs � Kampf v Twomey � Personal Injury Commission - Judicial Council. Mac. SWEENEY & COMPANY

PIAB (cont. ) � Statute of Limitations – Renehan v T&S Taverns Ltd 2015 IESC 8 � Personal Injury Board (Amendment) Bill 2017 – Scheme v S. 4 – Med Report not required to stop clock for S. 50 (delays notification) v S. 5 – Unfettered discretion to decline assessment v S. 7 – Failure to Cooperate: § Court discretion - exclude medical evidence § Court discretion - disallow special damages § Costs penalties v S. 8 – Court ruling in fatal injury actions (even where no infant dependents) v S. 9 – Statute of Limitations disapplied – reverses Renehan! � New Portal. Mac. SWEENEY & COMPANY

DAMAGES IN PERSONAL INJURY Payne v Nugent 2015 IECA 268 - € 65 K to € 35 K (46%) � New guidance for assessment of general damages � ◦ ◦ ◦ award made is just, equitable and proportionate rational relationship between awards in PI cases Moderate claims – moderate damages Perceived “CAP” € 400 Place injury on scale (minor to catastrophic) Nolan v Wirenski 2016 IECA 56 – CAP = € 450 K - € 120 K to € 65 K (46%) � Shannon v O’Sullivan 2016 IECA 93 – € 130 K to € 65 K (50%) � Cronin v Stevenson 2016 IECA 186 – € 180 K to 105 K (41%) � Murphy v Co Galway Motor Club 2016 IECA 106 - € 200 K to € 275 K � High Court – Woods v Tyrell 2016 IEHC 355 – Cross J (€ 134 K) � Personal Injuries Commission – 4. 4 times UK awards (whiplash); 5 times UK awards (infants) � Judicial Council – compile guidelines to match UK awards. � Mac. SWEENEY & COMPANY

COSTS � Sheehan v Corr SC 15 th June 2017 – landmark decision � High Court – Cregan J: ◦ Elevated “time” above all other criteria ◦ Mandatory to include detail of time/labour per item in bill � Supreme Court - Laffoy J: ◦ Time not elevated - No legal requirement for time records –desirable ◦ General economic conditions relevant in measuring fees ◦ Criticism – Long narrative with one figure � HC PD 71 – “Reasonable” costs on account – undertaking � Timing – 2 months since Paul Behan appointment mid 2017 � S. 150 Notices (Legal Services Regulation Act, 2015) ◦ S. 157(4) – disallow item not included in S. 150 Notice (save injustice). Mac. SWEENEY & COMPANY

MISCELLANEOUS � � � � � Disclosure Rules – Harrington v Cork City Council 2015 IEHC 41 Bullying – Ruffley v Board of Mgt St. Anne’s School 2017 IESC 33 HC PD 76 – Bullying Claims – Dublin PI List NOT the Non-Jury List Bullying – Cross J. – attempt mediation before set down HC PD 70 – Trespass to the Person/Assault Cases – Dublin HC PD 75 – Certificate of Readiness (Chancery/Non-Jury) – expert meeting Exaggeration – Platt v OBH Luxury Accommodation 2017 IECA 221 Undertakings/ Indemnity: ◦ VHI – Requirement to furnish Certificate of Senior Counsel ◦ Admiralty Marshal – Ship’s Arrest – Indemnity re “Costs” and “Claims” Periodic Payment Orders – Civil Liability (Amendment) Act, 2017 GDPR Article 79 ◦ Parallel right to effective judicial remedy for infringement of personal data – claim for “non-material” damage. Mac. SWEENEY & COMPANY

Questions? Shane Mac. Sweeney & Company Solicitors www. macsweeneylaw. com Mac. Sweeney & Company