Michael McDowell (Dublin South East, Progressive Democrats)

I am opposed to these amendments. The purpose of the section is to encourage those who are contemplating litigation to put the other side on notice at an early stage. If one is being sued for a minor road traffic accident, one is put on notice that this is happening at a time when it is reasonable for one to find the witnesses or put down in writing one's side of the story. In this way, one is given some capacity to defend oneself. Likewise for a doctor in a medical negligence case, if somebody is contemplating suing, the doctor is in a position when the matter is fresh in his or her mind to make a note of what happened rather than have to struggle afterwards to recreate a memorandum of what happened.

I draw to the attention of the House the consequences in this regard. Section 7(1) provides that a person who intends to bring a personal injuries action shall, not later than two months after the date of accrual of the cause of action or the date of knowledge, service notice. It does not affect anybody who is unaware of their situation. Subsection (2) states:

Where a plaintiff in a personal injuries action has, without reasonable cause, failed to comply with subsection (1), [If there is any reasonable cause the consequences in paragraphs (a) and (b) do not apply] the court hearing the action may, where the interests of justice so require . . .

In such instances, subsections (a) or (b) may apply. With the greatest of respect, anybody who knows the general disposition of the court knows that section will not be interpreted in a draconian or unreasonable way. It will only be invoked where the interests of justice require that something be done in regard to the costs because the plaintiff, without reasonable cause, failed to put the defendant on notice that a case was being taken. It is not simply that there was a failure without reasonable cause. It is also that the interests of justice require that the defendant be assisted by the penalisation as to cost issues.

In practice, it will not have a dramatic effect on genuine cases or people who did not get their act together. I do not think the courts would so interpret it. There is every reason to believe the courts will interpret it in a reasonable way. They will say that if a solicitor had a clear indication of the crash or an industrial accident, he or she should have written a letter to the other side stating, for example, that a person dropped a hammer on his foot at work last week and was not wearing protective boots. There is no reason that they should not be alerted within two months of being made aware of it. That is not draconian. Subsection (3) states:

Where a plaintiff in a personal injuries action has, without reasonable cause, failed to comply with subsection (1), the court hearing the action may draw such inferences from the failure as appear proper.

What could be fairer than that? If a person does not notify the other side and allows it to go to one year or two years, there is not a dicky bird out of the plaintiff for 15 months over a two year period and suddenly there is a claim that something happened, the court is being specifically asked to inquire why this matter was not brought to the attention of the defendant in a timely way. There has to be a proper inference from the failure.

It is not just that since one did not do it, the onus is on one to convince the court that something or other should be the case. What it is saying to a court is to be alert to the proposition that plaintiffs must, unless they have reasonable cause for not doing so, alert the other side. It is about getting people to face up to the issue. It is getting away from Senator Walsh's twisted ankle 18 months later psychology, where suddenly the urban district council receives a letter stating that 18 months previously somebody twisted their ankle on a section of road. That is not acceptable in this day and age. It is unfair to the defendant.

Defendants have rights, one of which is to know that a case is likely to come up so that they can get together the foreman who was present on the day, or the witness or foreign visitor who saw the incident. They have the right to hunt down their witnesses as well. The two month period is reasonable. It puts plaintiffs and legal practitioners, because the remedies in subsection (2) are cost based — a matter usually in the minds of legal practitioners — in a position where they have a strong motive to give a clear indication that litigation is in contemplation.