Léim ar aghaidh chuig an bpríomhábhar
Gnáthamharc

Seanad Éireann díospóireacht -
Thursday, 11 Mar 2004

Vol. 175 No. 21

Civil Liability and Courts Bill 2004: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

I warmly welcome the opportunity to commence the Second Stage debate on this Bill in the Seanad and to listen to Senators' views on its provisions.

First, this is a wide-ranging and innovative Bill which seeks to address a number of serious issues concerning civil liability. Chief among these is the tackling of what has become known as the "compensation culture" by introducing new penalties for fraudulent and exaggerated claims. The Bill also provides for major procedural changes in personal injury actions to reduce the time taken and the costs involved in processing such actions. In addition, the Bill amends the in camera rule, provides for the disposal of part of the funds of suitors vested in the accountant of the courts of justice and makes provision for the jurisdiction of the Circuit Court in proceedings relating to land. The primary purpose of the Bill is to implement certain commitments in An Agreed Programme for Government, including relevant recommendations of the Motor Insurance Advisory Board and to change the law on civil liability in some other respects.

The civil liability elements of this Bill, together with the Personal Injuries Assessment Board Act 2003, which was sponsored by my colleague, the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Harney, and the measures being taken by the Minister for Transport, Deputy Brennan, are the Government's legislative response to the problem of the compensation culture. This Bill, when enacted and in force, will result in an easing of the insurance burden on the personal and business sectors and of the cost to public authorities of personal injury actions, without compromising the right of those genuinely injured to be compensated for their loss. The Bill contains provisions which will deter those who take legal actions for compensation on a fraudulent or exaggerated basis. Much information has come to light attesting to the willingness of many unscrupulous individuals to embark on this course of action to enrich themselves at the expense of the wider community.

In addition, the Bill aims to streamline the procedure in personal injuries actions so as to reduce litigation costs. These costs are quite simply too high relative to the quantum of compensation. A survey of litigation costs, undertaken by the Motor Insurance Advisory Board and described in that body's report, shows that in 2000 such costs amounted to 40% of compensation awarded in motor accident cases, 46% in employers' liability and 56% in public liability cases. Furthermore, the trend was that these proportions were increasing over the years. This does not suggest that we have an efficient system for delivering compensation to those who are injured. The Personal Injuries Assessment Board is intended to address this problem in cases where liability is not in issue. The measures in this Bill are aimed at all other cases, namely where legal action is instituted in the courts.

I have listened carefully to the comments made by interested parties following the publication of this Bill and I am gratified that the overwhelming response has been positive which may not save me from a Second Stage vote.

We want to keep the Minister on his toes.

We will not impose that on him a second time.

I will now describe the Bill's main provisions. Part 2 deals with the issue of civil liability and provides for procedural and other changes in actions to recover damages for personal injuries. With stated exceptions, the part applies to personal injury actions brought after its commencement. Section 6 amends the Statute of Limitations (Amendment) Act 1991 by reducing the limitation period for personal injuries actions from three years to one year to ensure that claims are brought forward without delay. There is an emphasis in part 2 on provision of full information on the claim being made. Sections 7 to 12 deal with the bringing of personal injury actions. Section 7 provides that a letter of claim must be served on a defendant by a plaintiff within two months of the date of accrual of the cause of action or date of knowledge. Often the time limits set down by rules of court are not adhered to, causing delays in the progress of actions. Section 8 makes it a function of the court to ensure that parties to a personal injuries action comply with rules of court. This section provides that extensions to time limits will only be allowed where either both parties agree to the extension or where a court considers that justice will be served by the extension to the time limit.

It is a common complaint of our current personal injuries system that defendants are often unaware of the details of a claim until late in proceedings. Sections 9 to 12 seek to remedy this difficulty. Section 9 introduces the personal injuries summons. A personal injuries action will now be brought by means of this summons. The section goes on to outline the information which must be contained in the summons including particulars of all items of special damages claimed, the wrongful acts of the defendant, the circumstances of the wrong and each instance of negligence.

To put that in context, to institute a personal injuries claim in the High Court now, all that is required within three years of the accrual of the cause of action is to serve what is known as a plenary summons, which contains a general endorsement of claim. In the case of a personal injuries action all that is required to stop the clock from running is to state that the plaintiff's claim is for damages for personal injuries. That is all the defendant knows even though an action has been commenced. The pleadings will now be required to be in the originating document in so far as they are known to the plaintiff at that stage.

Section 10 deals with further information, which may be required from the plaintiff by the defendant. Items of information, which may be requested, and must be supplied in response to that request, are particulars of any previous personal injuries actions and medical treatment, which may have a bearing on the current injury. If a person sues for a bad back, it would be relevant that such a person had a bad back arising from an accident at work for which he or she may have claimed previously. At the moment only diligent detective work on the part of the plaintiff will uncover such a fact, which is clearly wrong. Obviously the injury and the medical history must be relevant to the claim being made. It is not possible to dredge around and intrude on people's privacies to determine that somebody involved in a car crash had mental treatment as a teenager. It is not intended to have that effect.

In addition, where a claim is made for earnings or other income, the plaintiff is required, on request, to furnish documents from the Revenue Commissioners or the Minister for Social and Family Affairs. A person claiming financial loss of that kind may be required to authenticate it by showing that the claim is in respect of a legitimate loss. The section also gives the courts powers to deal with non-compliance with a request under the section. The provision of full information is vital to the speedy and proper conduct of personal injury actions.

The same applies to defences and counterclaims. Section 11 provides that a defence to a personal injuries action must specify those elements of the claim of which the defendant does not require proof and those elements of the claim of which the defendant requires proof. In addition, the defence must contain a statement outlining the grounds on which a defendant claims he or she is not liable for any injuries to the plaintiff. A counterclaim must contain all the information required in a personal injuries summons. Again, the intention with this section is to ensure that a plaintiff is fully apprised of the details of any defence or counterclaim. People may make bland denials and at the end of reading a defence, barristers and solicitors acting for the plaintiff are left like submarines without a periscope and have no idea of what defence they will face in court.

One of the key elements of the Bill is contained within section 13, which is designed to combat false and exaggerated personal injury claims. The section provides that parties to a personal injury action must swear an affidavit verifying the contents of any pleading or any further information requested under section 10. Section 13(5) makes it an offence to make a statement in an affidavit which is false or misleading and which the person knows to be false and misleading. This represents a change. At the moment a solicitor may make a claim on a client's behalf, which is wrong and lacks any substance. However, unless the client goes to the witness box and swears up to that proposition in the course of proceedings no criminal offence analogous to perjury is committed. This section will require an individual to affirm by oath the contents of the pleadings so that even if the action is settled, a very serious offence has been committed if the other side has been induced to settle by means of a falsehood.

One further aspect of this provision, as outlined in subsection 13(8), is that the section applies not only to actions brought following commencement of this Act, but also to actions pending at that time. There will not be an interregnum period during which bogus claims can just peter out over a number of years. When the Act comes into effect people will be required to swear up to the truth of what they are doing just as if they were commencing an action for the first time. The consequence of this is that the reform will become operative from a very early date once the provision is in force.

A new element in our personal injuries procedures, the mediation conference, is introduced in section 14, which provides that a court may direct that the parties to a personal injuries action meet to discuss and attempt to settle the action. The parties may agree on a mediator or, in the absence of such agreement, the court may appoint a person to chair the conference. Where a court appoints a chairperson, the mediator must be a practising barrister or solicitor of not less than five years standing or a person nominated by a body prescribed by order. If a group of trained mediators exists, we will not simply have a lawyers' monopoly.

The intention here would be that persons suitably qualified in mediation would be enabled to chair a mediation conference for the purposes of this section. It is vital in mediation that the confidentiality of all parties is respected, otherwise people will just be defensive and will stand their ground. To ensure this is the case, the section provides that the notes of a chairperson of a mediation conference and all communications during it shall be confidential and cannot be used in evidence in any subsequent civil or criminal proceedings. People will be able to admit to having been somewhat negligent without this being thrown at them afterwards in court as a concession they made during the conference.

The outcome of mediation conferences is addressed in section 15, which provides that the chairperson of a mediation conference must prepare and submit to the court a report of the conference. The report shall outline whether the conference took place, what issues, if any, were agreed at the conference and, where an agreement has been reached, a copy of the settlement terms signed by all parties. In cases where a party has failed to comply with a direction of the court under section 14, the court may direct that party to pay costs incurred after the direction.

Section 16 requires the plaintiff and defendant in a personal injuries action to serve a notice of offer of settlement on the other party. It is open to a defendant contesting liability completely to state that he or she wishes to offer a "nil" amount by way of settlement. Such offers of settlement will remain open for a period to be prescribed by rules of court. While a judge hearing a case will be aware that offers of settlement have been made, he or she will not be aware of the terms of such offers until a judgment has been delivered in the action. The court shall, however, have regard to the offers and the reasonableness of the conduct of the parties in making them when considering the costs of an action. The idea here is that the parties should be required to state their terms of settlement, on a basis that will have consequences in costs, before the case proceeds to trial.

The concept of pre-trial hearings is introduced in section 17, with the intention of determining what matters are in dispute and require decision in any trial of a personal injuries action. It is open to the court, where it considers it appropriate, to direct that such a pre-trial hearing take place. Section 18 makes provision for a court to direct that evidence may be given by way of affidavit. It will, of course, be open to any party to cross-examine any person who gives evidence by way of affidavit. At the moment someone wanting to prepare a case properly for court must assume that everybody must attend and give viva voce evidence, which wastes considerable time. Frequently people travel from somewhere like Killarney to Dublin and having given evidence, on which there is no issue, are not cross-examined.

In many personal injuries actions, conflicting evidence from experts must be decided by the court. Section 19 allows a court to appoint approved persons to investigate and give expert evidence on any issue the court may direct. The section also provides that any party to a personal injuries action shall co-operate with an approved person. An "approved person" is a person approved by the President of the High Court, in consultation with the Presidents of the Circuit and District Courts, for the purposes of the section. The intention behind this provision is that an expert, independent of any expert witness retained by the parties, could be appointed to assist the court. To take a medical example, a court might decide to appoint its own medical assessor, who will testify and be liable to cross examination, but will give an objective view to the court having listened to the medical experts on either side.

Section 20 is an important provision dealing with intervention in a personal injuries action. It provides that where an appeal is taken to the Supreme Court that court may, where it considers that any matter in the case relating to either liability or damages is of exceptional public importance and the action is one of a class of claims in which the same or similar matters arise, invite appropriate persons to make submissions to the court. Such an intervention may come about at the initiative of the court itself or at the request of any party or of any person who is not a party.

An issue may arise in a series of cases which is of exceptional public importance, going beyond the interests of the parties before the court. It may, for example, have far reaching implications for the public finances or for the cost of insurance. Mental distress is an example. Recently there was a case before the courts in which a mortuary attendant claimed for mental distress arising out of the psychological effect of seeing a body which had been badly mutilated in an accident. The question was whether that was reasonably foreseeable and within the chain of causation which should be covered by liability on the part of the person who caused the original accident and the insurers for that person. An issue of that kind, which could massively extend the scope of liability, is the kind of issue on which the Supreme Court would be entitled to hear more than one insurance company and one defendant because the case will have wider public ramifications, however it is decided. In such a case, a competent public body could be invited to make submissions to the Supreme Court before that court makes a decision on the issue, a decision which will bind other courts which are called upon to adjudicate on the issue in the future.

An essential element of the Bill is the necessity to reduce the number of false and bogus claims for personal injuries. Sections 21 and 22 seek to tackle this issue.

Section 21 makes it an offence to give or adduce or dishonestly cause to be given or adduced evidence that is false or misleading and which a person knows to be false or misleading. Equally, it shall be an offence to give, adduce or dishonestly cause to be given or adduced false information to a solicitor or expert. In the context of this section, a person does an act dishonestly if that act is done with the intention of misleading the court. It should be noted that section 21(4) provides that this section applies to personal injuries actions pending at its commencement as well as to subsequent actions. Therefore, if any further step is taken in an action after the passing of this Bill into law, that provision will apply.

It is of concern to me that, in a number of cases, persons have misled the courts on aspects of their claim and yet have walked away with an award in their favour. That means that if somebody who has a broken arm produces an entirely spurious claim for loss of earnings running to hundreds of thousands of euro, they still get damages for the broken arm, even though they spent considerable time and effort and wasted the time of the court in trying to sustain a claim which was fraudulent in nature on a collateral issue. In my view, if one seeks justice in the courts, one must, so to speak, "come with clean hands".

Section 22 is a key section in terms of combating such bogus claims. It provides that, where a plaintiff in a personal injuries action gives or adduces or dishonestly causes to be given or adduced evidence that is false or misleading and which the plaintiff knows is false or misleading, the court shall dismiss the plaintiff's action unless this would result in injustice being done. The section imposes the same sanction on any person who falsely swears an affidavit under section 13.

Essentially, if a person lies in the course of a personal injuries action, their claim will be dismissed subject to the qualification I have mentioned. Again, section 22 applies to actions pending at the time of the section's commencement as well as to subsequent actions. It will, therefore, have immediate effect. Again there is an example — somebody injured in a road traffic accident sustaining a broken arm who says in court that as a consequence they have never been able to golf since, but the other side shows the court a video of the person golfing last week as if nothing had happened. In those circumstances it is not good enough to compensate them for the original accident and say it is just too bad that they did not get away with the fraudulent aspect of their claim. One risks everything if one goes to court other than with clean hands in an attempt to sustain a claim which is part fraudulent.

Section 23 deals with the issue of collateral benefits. The Civil Liability Acts 1961 and 1964 are amended by providing for the deductibility of charitable donations made by the defendant if he or she specifies in advance that the donation is being made on that basis. In December 2002, the Law Reform Commission published a report on The Deductibility of Collateral Benefits from Awards of Damages. This recommended a general principle of deductibility subject to exceptions. One of the exceptions was that, in assessing damages, account should not be taken of payments made under an insurance contract where the plaintiff has paid the entirety of the insurance premiums, directly and independently, and in his or her own name. Senators may recall that, in the general scheme of the Bill which I published last year, I adopted a somewhat different approach in that I proposed that all insurance benefits, whether the premiums were paid by the plaintiff, or by his or her employer or somebody else, should be taken into account in assessing damages. Section 23, as it stands, does not amend the law on insurance benefits. I have left the issue aside for now and I will return to it and table an amendment at a later stage in the progress of the Bill through the Houses.

Section 24 provides that any income, in respect of which a claim is being made but which has not been returned or notified to the Revenue Commissioners will be disregarded by the court is assessing damages save for situations where the court considers that an injustice would be done.

I mentioned earlier offences committed under this Part. It is my view that such offences should attract serious penalties. Section 25 outlines the penalties imposed on persons who commit an offence under this Part. If convicted on indictment for an offence, a person shall be liable for a penalty of imprisonment for a term not exceeding ten years or a fine not exceeding €100,000, or to both. A summary conviction carries a maximum penalty of one year in prison or a fine of up to €3,000 or both.

I turn now to the other aspects of the Bill. Chapter 1 of Part 3 provides for the realisation of the dormant funds of suitors of the High Court, and of the special account for small balances, and their transfer for the benefit of projects of the Courts Service. The value of these dormant funds is currently estimated at about €6.4 million. Dormant funds of suitors of the High Court result mainly from unclaimed funds of wards of court, funds invested on behalf of minors, tail balances, bail deposits, civil lodgements as well as amounts of interests accruing on capital sums lodged in court and subsequently paid out. Periodic efforts made by the Irish Courts Service to refund dormant funds to account holders have met with limited success. Funds become dormant when there has been no activity over the preceding 15 years, with the exception of small balances which are deemed to be dormant after five years.

There have been four previous Funds of Suitors Acts, in 1959, 1963, 1966 and 1984. Those Acts allocated the dormant funds to certain social, cultural and courts rehabilitation projects such as the Cork Opera House, Abbey Theatre, Peacock Theatre, Kings Inns and the Children's Court. However, on this occasion, the funds transferred will be used for purposes in relation to the defrayal of costs involved in the provision, management and maintenance of court buildings as provided for in the relevant section of the Courts Service Act 1998. In the very unlikely event that there might be a deficiency in the funds of suitors, the Minister for Finance will offer a complete indemnity from the Central Fund.

Chapter 2 of Part 3 deals with miscellaneous court provisions. Among the provisions included in this chapter are the amendment of the in camera rule and provisions in relation to the jurisdiction of the Circuit Court in proceedings relating to land.

Section 31 amends the in camera rule, particularly as it relates to various family law statutes. The amendment will allow the publication of reports of proceedings with the proviso that such reports do not contain any information which could identify the parties or, in particular, any child to which the proceedings relate. The section also provides that nothing in any enactment which prohibits proceedings from being heard in public shall prevent the production of a document or the giving of information or evidence relating to such proceedings to a body or person conducting a hearing or enquiry pursuant to statute. This provision extends to bodies or persons acting otherwise than under statute where the body or person has been prescribed by ministerial order. I should add that there is a prohibition on any body or person publishing the document or information in those cases.

This provision will implement a commitment in An Agreed Programme for Government, comprising the Fianna Fáil Party and the Progressive Democrats. Essentially, the section has two purposes. First, it allows for the reporting of family law proceedings so that practitioners, legislators and the general public are aware of how the law in this area is in fact being administered. This knowledge is restricted at present because of the in camera rule. Furthermore, it is not desirable that justice should be administered in secret where our true objective is to protect parties’ privacy and it does not require total secrecy.

The second aspect of the section is that it will allow the use of material from the in camera proceedings by disciplinary bodies, for example, in relation to complaints against a solicitor or a barrister or a medical practitioner arising out of the conduct of those proceedings. I have received a number of submissions on the relaxation of the in camera rule from a number of bodies involved in family law matters. I am considering those submissions and other issues and it is possible that I will bring forward amendments to that section at a later stage.

At present costs bear interest from the date of judgment, even though the solicitor has not yet submitted his bill. It is extraordinary that if a decree of costs is awarded to a person, the interest clock starts running, even though the amount on which it is running is determined only at a later stage. This situation is not fair to the party who must pay the costs. Section 32 amends section 30 of the Court and Court Officers Act 2002. The effect of the amendment is that interest on legal costs shall not be payable until the amount of costs is agreed by the parties or until the costs are taxed and measured. Thereafter the costs will bear interest at the rates specified from time to time.

Senators will be aware that the Central Criminal Court sits outside Dublin on occasion and it is necessary, therefore, to facilitate the administration of that new arrangement. This is done in section 34, which amends section 38 of the Court Officers Act 1926, to provide for the carrying out of the functions of the registrar of the Central Criminal Court by the local county registrar or a member of the staff of the local Circuit Court office, where the Central Criminal Court is sitting at that location.

Sections 35 to 42 address the implications of the Valuation Act 2001 for court jurisdiction in property matters, mainly in respect of the Circuit Court. At present, jurisdiction is determined on the basis of rateable valuation. The jurisdiction given to the Circuit Court is where the rateable valuation does not exceed €253.95. The introduction in the Valuation Act 2001 of a new valuation system which more accurately reflects current property values requires a modification of those provisions. The sections change the limit from €253.95 rateable valuation to a market value of €3 million. The term "market value" is defined.

The Bill has enormous significance for plaintiffs taking personal injuries actions and defendants. The procedural changes in sections 7 to 12 will mean that actions must be brought sooner and that full information must be provided by all parties. The provisions of the Bill dealing with verifying affidavits, false evidence and fraudulent actions will seriously reduce the number of false and exaggerated "trying it on" type claims. The Bill in no way compromises the right to compensation for genuine plaintiffs. It is even-handed as between the parties but is formulated to cut out the abuses which have threatened to discredit our legal system.

I look forward to the contributions of Senators. I will take account of views expressed and will consider carefully any amendments tabled. I am considering a number of issues which could be the subject of amendments at a later stage.

The Bill, together with the Personal Injuries Assessment Board Act, the road safety measures being taken under the auspices of the Minister for Transport, Deputy Brennan, and other measures in the Government's insurance reform programme, will combine to greatly alleviate the cost burden on business and the insured public, a burden which has been increasing over the years. If Members need any proof of that they should read today's newspapers and articles about people shopping around in search of reduced insurance costs. For the first time, there is downward competitive pressure on insurance premiums and consumers are enjoying the fruits of the new policies which are beginning to work their way through the insurance market.

I commend the Bill to the House.

I wish to share three minutes of my time with Senator Coghlan.

Is that agreed? Agreed.

I welcome the Minister back to the House to deal with this second item on our agenda for today.

The background to this Bill lies in the fact that Ireland has become immersed in a compensation culture. It is unfortunate that, when they have accidents, many people feel they are entitled to compensation. We are all obliged to pay for that attitude. The emergence of the culture to which I refer has led to false and greatly exaggerated claims. Everyone will agree that many of the claims which have been made were false. Claimants have not been alone in pursuing claims. They have been helped by members of the legal profession in seeking compensation. This is undesirable.

As the Minister stated, claims of a false or exaggerated nature only add to insurance costs. I am glad that competition has increased in the insurance area and that some reductions have been forthcoming. The Bill will provide major assistance in terms of tackling false insurance claims, thereby bringing about a reduction in insurance costs, but why was it not brought forward sooner? I accept that the Minister was not a member of the previous Government. However, Fianna Fáil and the Progressive Democrats have been in power for seven years. I would have welcomed the Bill's introduction at an earlier stage but we must deal with it now.

Many of the Bill's provisions seem to restate existing practice. It does not, therefore, contain a great deal of new material. Section 5 deals with the application of the Bill and states that various sections will only apply to actions brought after the legislation commences. I am not sure what the word "brought" means in that instance.

I thank the Minister. There appear to be two related concepts in the Bill, namely, "brought" and "accrued", and it is important that we should clarify their exact application.

The reduction of the Statute of Limitations period from three years to one is dramatic. Medical personnel would argue that some injuries do not manifest themselves for quite some time. Even if they materialise and heal within one year and recur, a person could be denied the opportunity to initiate a legitimate claim. While I agree that the three-year period is too long, we should reconsider decreasing it to one year, particularly in the case of people who may have legitimate claims which arise outside that period.

I welcome section 8 which states that personal injury actions will operate according to the rules of the court. In other words, they will be dealt with swiftly. I understand that something similar to a timetable is in place for judicial review actions, where each step in the legal process is supposed to happen within a set timeframe. However, I am informed by legal practitioners, that this timetable is rarely, if ever, observed. Foot-dragging and delaying continue to slow down these cases. Adjournments and time extensions are commonplace. There is nothing in section 8 which leads me to believe that personal injury actions will be dealt with any more swiftly than at present.

Notices for particulars are already used in personal injury and other cases. I fail to see how section 10 will improve on this practice. Similarly, section 11 specifies the contents of a defence. The Minister is aware that it is really a formality because everything is denied and contested. This does little to assist in resolving the case. Section 11 does nothing to improve on the current position and the same can be said of section 12.

I welcome section 13. It is a sad reflection on our society that claimants will be required to swear an affidavit before making claims. However, this is what we have driven ourselves to. This is the most important provision in the Bill. The success of the legislation will either stand or fall on the basis of this section. Claimants who have to swear affidavits will think twice about the veracity of the information on their claim forms. However, a measure such as this is only as strong as its level of enforcement. Day after day judges express preference for the evidence of one witness over another. We frequently hear about judges labelling witnesses as unreliable or untruthful. However, we hear about few cases of perjury being taken. In contrast, there have been a number of high profile cases of perjury in the UK. Two of these involved former politicians, Lord Archer and Jonathan Aitken, who were both jailed for admitting perjury and perverting the course of justice. It is clear that the offence of perjury is far better policed in other jurisdictions. It is, therefore, reasonable to conclude that their oaths are more closely adhered to than is currently the case in Ireland. Until that matter is addressed, the effectiveness of section 13 will be quite limited.

Sections 21 and 22 are connected with this and their success will again be dependent on how frequently these provisions are enforced. It has always been an offence to produce false evidence and there is nothing new in these provisions in that regard. Perhaps the Minister might move more swiftly towards putting the common law offence of perjury on a statutory footing, rather than dealing with it in this higgledy-piggledy way.

I welcome the introduction of mediation. Many cases are settled before they reach court. Formalising the process in this way might help to ensure that cases are settled earlier. The final offer measures provided for in section 16 are along the same lines as the court lodgement procedure already in place. I welcome section 19 which allows the court to appoint experts. This will hopefully relegate conflicting reports to the past and should help speed up cases.

Section 25 is the offence provision. It is drafted in such a way as to indicate that offences under this Bill are primarily indictable. However, section 2 introduces the potential for protracted legal argument. It will enable someone charged with an offence to drive a coach and four through this Bill and effectively allow him or her to evade the most severe penalties.

In some ways this Bill is a textbook example of how not to legislate. It primarily deals with making claims but it also deals with a number of varied and unconnected matters. Chapter 1 goes on a complete tangent and deals with the issue of dormant court accounts. Chapter 2 lists 12 innocuously entitled "miscellaneous provisions" which make some significant changes. The first change is that the in camera rule as we know it will no longer exist. The level of secrecy attached to family law proceedings has been so restrictive that it has hampered any meaningful study of this area of law and of our society. I am in favour of the relaxation of the in camera rule to allow official law reporting to be expanded. I also welcome a proposal of this kind to allow studies to be conducted of the family law courts. This will give us a greater understanding of the working of the family law courts and, in particular, it will give us a clearer picture of the kind of orders being made in this area. However, I would not be in favour of relaxing the in camera rule to allow journalistic coverage of family law cases. In that context, the element of privacy that attaches to these cases must remain.

In keeping with this tenor of diversity, the Bill also deals with interest on costs and finally seems to eliminate the concept of rateable valuation from legislation and replaces it with the more accessible idea of market value. This is to be welcomed although I do not think I saw hundreds of angry protesters calling for such a radical reform. I generally welcome the Bill.

I welcome the Minister and the measures in the Bill designed to tackle fraudulent claims. The Bill is one of a series of measures the Government has introduced in order to tackle the problem of increased insurance costs, with which we are all so concerned. In response to business and consumer concerns about the high cost of insurance, a number of initiatives designed to tackle the high cost of insurance have been introduced. The commencement of the Personal Insurance Assessment Board Bill, studies by the Competition Authority into the insurance sector and various other measures were trumpeted as a means of reducing premia for consumers and businesses. The Joint Committee on Enterprise and Small Business is also concerned about this matter on which we have produced an interim report and are engaged is ongoing work. Regrettably, the insurance industry seems to be dragging its heels in reducing premia while at the same time chalking up massive increases in profitability. Everyone in this House will have noted with some concern the extensive profits reported by the main insurance companies in Ireland in recent weeks. It is remarkable that a sector which was reportedly on its knees 12 to 18 months ago has managed to stage a Lazarus-like recovery. I have an uneasy sense that the insurance industry may have manipulated the situation to overstate losses and engage in scaremongering so that a more profitable operating environment can be created for it. To the extent that this Bill is part of the Government's response to that reported insurance crisis, I hope the Government will extract a quid pro quo from the insurance sector through massive reductions in premiums instead of some minor tinkering.

I welcome the Bill generally. The reforms proposed therein are long overdue, even if there had not been any insurance crisis. Anybody who has had experience of civil litigation will know how many aspects of court procedure are outdated, archaic and regressive. Tort reform has been long overdue and many of the measures proposed in this Bill will go a considerable distance towards modernising processes and procedures. However, it is important that when introducing this legislation, specifically the aspects that have been dictated by the insurance lobby, we must rigorously assess any measures that restrict or alter the fundamental rights of citizens. I am particularly concerned about the impact of the reduction of the limitation period from three years to one year on claimants who have suffered serious injuries in accidents or as a result of medical negligence. I note the comments from certain patients' groups which suggest that reducing the limitation period will be unjust as many seriously injured people are not in a position to mount a claim after just one year or are uncertain about their prognosis and treatment at such an early stage. It is vital that the Minister reviews the proposals in the Bill to reduce the limitation period so that people who are recovering from serious injury and not in a position to contemplate litigation, or are otherwise unable to be certain as to the extent of their injuries, are not at a disadvantage. It would be regrettable if this Bill, purportedly to address concerns raised by the insurance industry, conferred an advantage on the industry by discriminating against people who have suffered the most traumatic and stressful injuries. I know the Minister is a fair minded man and I am sure it is not his intention to present such difficulties for people. I hope he will therefore address this issue and the concerns that have been raised by patients' groups, professional organisations and practitioners on Committee Stage.

I welcome the Bill. The Minister is to be congratulated on his ongoing commitment to ensure that the changes required in legislation for the times we live in are occupying his mind. While I might feel overworked as a result of this, I believe the Minister is making a meaningful contribution to the laws of this land.

This Bill will be welcomed by many, particularly those who have been taken to the cleaners by unscrupulous individuals over the years. The Bill provides for changes in actions to recover damages for personal injuries and the disposal of parts of the funds of suitors vested in the accountant of the courts of justice. It also amends the law on civil liability and the in camera rule on family law procedures, to name but afew.

With the help of our new-found friend, the closed circuit television camera, we have seen some unscrupulous individuals setting up fraudulent claims. On national television we have seen someone acting his best and falling in a public toilet, with the help of his comrades in arms. People were doing these things because they knew that under the existing laws the chances were that they would get away with them. Insurance companies will not fight a claim for €5,000, or maybe even €10,000, because they believe it is a cheaper option for them to settle. That has certainly been the case.

I was involved in a case where an individual brought a claim against the company for which I worked which was completely fraudulent. I presume the individual's solicitor took the case on a no foal, no fee basis. They assumed it would be settled on the steps of the court. That did not happen in this case because I decided that the company would fight it all the way. The solicitor walked into court on the morning the case was due to be heard and stated that his client was not pursuing the case any further. He then walked out and we were left with a bill of £5,500. In a case like this, the solicitor involved should have borne the brunt of the costs as we were left with a bill for a bogus claim. There are solicitors out there who encourage people to take this kind of action on a no foal, no fee basis. They know that if it goes to court they will lose, but they work on the basis that it will not go to court. Therefore they will end up with a fee and the individual who brings the action will end up with a fraudulent claim. Sections 21 and 22 will take care of this situation as it will now be an offence to knowingly give false information in a personal injuries claim, either to swear it by affidavit or through a solicitor. Under section 25, if people give a false declaration, they will be liable to a fine of €100,000, ten years in prison or both or, if summarily tried in a District Court, they will be fined €3,000 or receive one year in prison or both. That will focus the mind, if I have read it correctly.

The Bill also proposes that the proceeds of dormant funds will be used for the maintenance and general upkeep of court services. There is an urgent need — I am sure the Minister, as someone who works in the industry, will agree with me — to bring our criminal courts up to speed. We must ensure that people assisting the State as witnesses are provided with a proper waiting area and are not placed in situations which would allow them to be intimidated by the accused or his or her friends. They should also be permitted to enter the court by a different entrance and should remain out of the gaze of the accused or his or her friends because it is possible to identify a person from afar. The current system, because of the lay-out of our courts and so on, places witnesses in situations where intimidation can occur.

The Accounting Officer for the Courts Service, when before a joint Oireachtas committee, informed us of plans to develop a new complex. I believe the complex in Lagan is a sight to behold. Hopefully our complex can be developed in a similar way. The Minister said he has available to him €6.4 million in dormant funds and perhaps some of that money can be used to support such a development.

What onus is on the courts' accountant to seek out the owners of dormant funds, some of whom may be deceased or may not, for whatever reason, be in a position to claim them? Given that such funds are held in the courts' bank accounts, which the accountant controls, does he or she have authority to invest such funds in an investment portfolio? If he or she does so and is fortunate to make money on them, will that be courts' money or will it be used to enhance the value of the award made in the first instance?

I believe I am correct in assuming that where the accountant in his or her wisdom decides to spend a portion of those funds and a person later makes a claim, the Minister for Finance must make up the difference and the Minister will then have a hand on the court accountant in terms of how much he or she can spend? Is it true that the accountant can spend all but 2.5% of the funds?

Other speakers referred to mediation. I fully agree with the provision whereby the courts may now request a party to a personal injuries claim to mediate, where possible. It is also proposed that the court will, if it sees fit, appoint a chairman with the agreement of all parties to oversee such mediation. I understand such a chairperson can be a barrister of not less than five years' standing. It is important to note that the chairperson, if appointed, cannot reveal his or her notes and they cannot be used by either party in terms of a defence thereafter. That is a wise provision. I would encourage mediation which is always the cheapest option. This provision will encourage people to use the facility rather than take the expensive route of court proceedings. Also, the chairperson of such mediation must submit a report to the courts based on his on her findings. It is important to note that a person who fails to comply for any reason may be subject to all costs. Mediation should be sought in the first instance because it is less threatening, out of the public eye, confidential, more humane and a saving on court, barristers' and solicitors' time. In that situation, everyone can be a winner.

We recently discussed the issue of domestic violence and Senators availed of the opportunity to commend the work being done by voluntary organisations in this area. We heard many staggering statistics during that debate. The family law courts do vital work in ensuring women and children receive necessary protection from abuse and violence. The most recent figures available indicate that in 2002, 4,067 barring orders were applied for, of which 1,740 were granted, and of the 2,840 safety orders applied for, 1,187 were granted. Women also access the courts for maintenance, custody and judicial divorce and separation orders. It is an indictment of the male population that 90% of all applications are from women. The Minister will be pleased to note that Women's Aid, one of the fine organisations of which I am speaking, supports the Bill, in particular the relaxation of the in camera rule in a manner which protects the privacy and anonymity of those accessing the courts. That organisation believes that rather than deterring them, this will encourage women to take cases in the future.

I welcome the reduction in the Statute of Limitations from three years to one year. It will, apart from anything else, alleviate much of the pressure on courts. However, I wonder whether a problem arises as regards a patient damaged as a result of medical negligence. I am sure the Minister is aware of the current debate on historic medical indemnity whereby doctors and consultants are seeking the protection of the Minister for Health and Children regarding past events. Experience indicates that people generally do not pursue medical negligence for compensation. They take such actions based on the fact they do not feel well and following consultation with their GPs or staff at the hospital where the procedure was performed. Also, they often discover having watched a medical programme on television that the problems they are encountering are caused by a procedure they underwent in the past. Can an extension to the one year be applied in cases where people do not discover for many years that their problems were caused by a procedure they underwent in the past?

I welcome the Bill which, like all other legislation introduced by this Minister, is thought provoking. The Minister is bringing us into the 21st century in terms of legislation in this area. I wish him well with the Bill.

I wish to share my time with Senator Norris.

Is that agreed? Agreed.

I welcome the Minister and the Bill.

I will begin with the parts of the Bill I like best. I am delighted the Minister will spend dormant funds from suitors. We constantly hear complaints about the condition of many of our courts from witnesses and families of victims. I welcome the Minister's proposals in that regard. However, I think more resources will be required from the Central Fund because a great deal of money needs to be spent on the courts, an area in which we have not spent money for decades. We are unable to provide people involved in injury cases with private rooms to discuss issues with their doctors or solicitors. That proposal is to be welcomed. Like other Senators, I have some concern about the reduction to one year from three years of the Statute of Limitations. I was glad to hear Senator Kett make that point also, particularly in terms of personal injuries due to medical negligence.

There is a great deal of confusion about the ongoing discussion on enterprise liabilities as to who is liable for personal injuries. Are we still insured under the Medical Defence Union and the Medical Protection Society? There may be a state of flux regarding who is responsible for what here and it is hoped we will be able to settle many enterprise liability cases before they come before the courts.

From a medical point of view I am rather concerned about the disclosure of medical history in section 10. We have to be very careful with that. We cannot have people who suffered a serious back injury as a result of falling down the stairs in their own home while drunk coming in, having suffered a minor accident, and making a personal claim attributing all their problems to the new injury. In general, however, when a doctor has to complete claim forms he or she is supposed to record the past history of the patient and I would not like to think there would not be trawling, to use the word the Minister used, in that respect. We have to be very careful about that because that could be very wrong.

The mediation conference sounds like a very good idea but in view of the fact that we now have the Personal Injuries Assessment Board where those who are in agreement, and where liability is not disputed, have the opportunity to settle their cases before going to court, I wonder how many people will be able to get in an agreeable frame of mind to go into these mediation situations. They are very well described, and it is welcome also that any conversations that take place with whoever is the expert should not be disclosed in the court, but I wonder if this will be another layer of bureaucracy where matters will be delayed. Like Senator Kett, I am a believer in mediation and good luck to it. It will be great if it works.

I am concerned also about the experts. The Minister particularly referred to doctors but I wonder if he has talked to the medical profession about this aspect. I have complained in the past that the Department of Justice, Equality and Law Reform appears to decide that the medical profession will do something without having had much discussion with them. It would be terrible if we established a group of experts in the courts who were just a subsection of the medical profession. I would not welcome that. It is much better to have people in clinical practice who have to turn up for one or the other. I say beware of two expert people. Also, does the injured person have any choice as to whether they will accept the expert because it appears they will have to pay for them? Experts could become notorious and people might say they do not want this or that expert because they know what he or she said on a particular case. I am concerned about the experts in that section and I would like to hear some more about it.

I am very pleased that the Minister is changing the situation regarding the in camera rule in the family courts, an issue we have discussed with him here on a previous occasion. It is a welcome change but I am a little concerned that it is not what many of us sought. In 2001, the working group on a courts commission recommended that a barrister should be allowed go into court and report, in an anonymous manner, on cases while ensuring the privacy of those present, and that the people involved had to give their agreement. It does not appear to me that will happen. It appears some sort of transcript will come from the Courts Service. The Minister is shaking his head; I am delighted to see that. I hope that what was suggested by the working group will be implemented because we need someone to go into court and report these cases. I do not believe people understand the seriousness of the cases in the family law courts. This is a welcome move and it is important, from the point of view of sociologists, to be able to get some idea of the volume and type of cases going before the courts. Do many of them concern non-nationals? Is there a particular problem in various areas of the country that needs to be addressed? I welcome the fact that this area is being opened up because we might be able to make a difference to the lives of the people who go before the family law courts.

The Minister said in his contribution that he has had representations from various organisations, including Women's Aid and the Rape Crisis Centre, which he will examine. One of those is that a specialist from one of these organisations would attend the court with victims of domestic violence in particular. I am sure we can address that type of area on Committee Stage. I welcome the legislation and look forward to Committee Stage.

I am very grateful to my colleague, Senator Henry, for allowing me to share time. I only need a short amount of time because I have just a couple of points to make upon which I have been briefed.

The first point, which may have been covered, is the question of the time limit for taking legal action. I have had strong representations on this point and although it looks more efficient to reduce the limitation from three years to 12 months, I have been persuaded, and I ask the Minister to at least keep an open mind on this issue, by the information given to me. In particular, reference was made to the tragic case in the Drogheda hospital where a number of women had their wombs removed and other apparently unnecessary gynaecological procedures imposed upon them. That is traumatic. The history of this area illustrates that one needs a certain amount of time to do it and I would like to record the type of thing that has been made clear to me. In the initial phase, people do not normally take action with a view to getting compensation. They are looking for information. They want to find out what happened and that often takes a considerable time, perhaps six months to a year, during which time they are fobbed off. They may go to their general practitioner. They could be nervous and they gradually realise that something has happened that was not quite right, and eventually they go to law. At that stage they start looking for records and very often there could be obfuscation in that regard. It is only when this process has been exhausted and they start going to law and seeking legal advice. Very often this is a desperate plea for help at that point and it may be that the 12 months has been exhausted through the initial concern, confusion, talking to the GP, not quite knowing what is going on, getting more anxious and perhaps even a little angry. They then start looking for records and find that the records have been mislaid or it takes a long time to get them. There may not be a sufficient number of staff in the health services or whatever. By that stage a year may have passed and under this proposal they will be in considerable difficulty.

The other point made to me on this issue is that it will probably increase rather than decrease legal fees because there will be the additional defence of delay in medical negligence cases. This may well increase the number of cases initiated.

The other issues are more directly concerned with the in camera rule. Like Senator Henry, I welcome that aspect of the Bill because it is particularly important that we have this information.

I hope I am not rehashing material but specific actions have been requested by groups that approached me which I believe are important. I am assuming they have not been put in detail on the record; if that is the case I am happy to quickly do so. There is a recommendation that a significant feature of all family law cases to be heard should include the following: the age, gender, nationality and if necessary, family status of the applicants; the age and number of children; the number and nature of applications and whether any previous orders exist; whether domestic violence was alleged as part of the application; legal representation, whether availed of and the type, private or legal aid; Garda and health board intervention, if any; and the outcome of the application.

It is worthwhile putting these things down to ensure we get all this material. Under the Domestic Violence Act 1996 the information gathered should include the nature of the alleged violence, whether physical, psychological, emotional, sexual, social or financial and whether children were abused, the use of a weapon, details of breaches of orders and the outcome of applications to include sanctions imposed by the criminal courts. This information should be collected by a registered officer of the court.

Another useful suggestion is that the family law reporting project should be resurrected. I know perfectly well the Minister knows a great deal more about this than I do. However, so that somebody subsequently reading the record may know what I am talking about, it was a pilot project undertaken by the Courts Service of Ireland for the period of one year to report on family cases in the Dublin Circuit and District Courts. Its aim was to give the public, court users, legal practitioners and the media a more consistent picture of the working of the family courts and the approach by which judges made decisions. It provided general information to the public and collated meaningful statistics on the work of the Family Court. This goes to the heart of the idea of openness, transparency and accountability. For justice to work it is always useful for the public to know the way in which it works and to have access to the maximum of information, but I accept that people's privacy should be respected. Under the Bill being introduced by the Minister this will happen and there will be the two objectives of protecting the privacy of the individual and at the same time collecting information that is useful both to the general public and in the formation of policy. We ought to know as much as possible in this sensitive area.

I would like to raise a final matter that one could argue is related since I have raised the issue of privacy. I appeal to the Minister to look at a particular situation. I speak as a fully paid-up member of the National Union of Journalists. I refer to the noxious practice widespread throughout all newspapers, not just the tabloids but also the broadsheets and those that regard themselves as the pinnacle of excellence in this country, of printing the names, addresses, family details, job status and sometimes the photographs of the individuals and the residence of persons who are accused. That should be put outside the law. I know it is said the court is a public place. It is a public place for those who go there. No subsequent retraction can redress the damage done to individuals. If the details of one's house, occupation, name, number of children etc. is splashed across the pages of newspapers and one is acquitted or found not guilty ten months later, the damage is done. Even if a there is a front page retraction, there is the residue effect that "there is no smoke without a fire". That is grossly unfair and I do not think a public good is served by printing the names, addresses, occupations and photographs of persons who are accused. This is often done in rather difficult, unpleasant and squalid cases.

I wish to refer to a situation which did not, in fact, involve an accused person. In today's newspaper is a sad tragic story of a young girl who, for whatever reason, made completely bogus allegations of rape. Supposing she had accused somebody and that the man had his photograph, name, address and job printed in the newspaper, what good would an apology do? It is not good enough to plead he was only accused and the record would be put straight by printing details of his acquittal on the back page. I suggest the Minister should look at that. I believe he would have the support of the House if he did something in this area.

I welcome the Bill and the Minister. He will have a swelled head with all the compliments on the wonderful pieces of legislation he is introducing.

I hope I do not sound rude when I say this Bill seems to be long overdue. However, now that he has introduced it, it is much to be welcomed. For too long the State and its people have been held to ransom by those referred to by the Minister, who bring bogus claims and hike up premiums, whether motor or house insurance, business liability or whatever. He rightly points to persons misleading the courts by making bogus claims and walking away with large awards. Thank God something is coming in now that will do away with that.

The Minister must be bored stiff, though he does not appear so, with the repetition since Members all seem to have the same things to ask him about. I would like to talk about the in camera rule. I welcome, however limited in degree, the way he is lifting this ruling. We have all been contacted by Women’s Aid. It welcomes this, as other speakers have said.

I know heretofore that a recommendation was put forward and a barrister attended the Courts Service of Ireland with a specific mandate to take notes. However, the legislation did not provide that she could remain there and that no longer pertains. I appreciate that Senator Henry has already raised that with the Minister. I hope this legislation will provide for transcripts to be available. As regards the data gathered every year by the Courts Service, perhaps there could be more by way of a breakdown rather than just outcome numbers. A gender breakdown of applicants and respondents would be useful. Perhaps people could be told why their applications were not successful. A person making another application for an order in a month or six months time, say, should have the right to know where he or she had gone wrong, previously, whether he or she not provide the right information or too much or whatever. It would help if people could have some insight into that.

I know there are no guidelines as regards the Domestic Violence Act 1996. It has always amazed me that one judge may have a reputation for issuing orders without too much difficulty, while others are "tighter". Perhaps the Minister could look at this, if not in this Bill then in subsequent legislation.

Another concern is the special support agencies. They have made recommendations for victims, normally women, who seek orders to bring persons into the court with them. We are all familiar with the "McKenzie friend", as allowed for victims of rape. The Minister could examine this. I know women who are involved in this type of work. They say it is difficult for a woman who feels vulnerable and threatened to go into an unfamiliar system on her own, without anyone to help her.

As a member of the Medical Council of Ireland, I can say that people normally make complaints to the council because they just feel aggrieved. They want someone to sit down with them, say they are sorry, that things went wrong, which should not have happened, that no real harm was done, but to come and talk about the matter so it can be cleared up. Perhaps the Minister might examine that. I know he is open to suggestions. Further to Senator Norris's last point about how journalists behave, I believe that somebody should haul them in. We saw the terrible case of the killing outside Club Anabel. A young female who acted as an independent witness was torn apart by the broadsheets and the tabloids. That innocent girl was made into a victim herself. It is appalling that people can be treated like that. It does the justice system no good. People will go under cover if they feel that they will be exposed and ridiculed in a similar manner.

I welcome the Minister and his officials. This is an important, substantial and, perhaps slightly unusually, cost-reducing Bill. I will dwell for a moment on its economic importance. It is obviously about reducing the cost of insurance claims and — something on which the Minister may not have placed undue emphasis — associated legal costs and, by extension, the costs on business. There is no doubt that during the last few years it has become a major issue at general elections. The cost of insurance has been a significant issue regarding the conduct of business in this country. I pay tribute to several members of the Government, including the Tánaiste, Deputy Harney, and the Minister for Transport, Deputy Brennan, who have been working together in a co-ordinated strategy to reduce such costs. That is vital for our competitiveness.

The overall net effect of this legislation is that, for someone contemplating a gamble on a court case on fairly flimsy evidence where, at the very least, the truth is being substantially stretched, the different dispositions of this legislation will provide a considerable deterrent. For example, the third party medical examination through previous records and cases being made must be produced. The Bill will also spare expense on witnesses, insisting that affidavits be sworn, and it is also very welcome that the measure will affect all cases pending. I would not be surprised if we see one or two cases withdrawn when this legislation takes effect.

If I have any reservation, it relates to the time. I can envisage cases of the sort that have come up with one or two other Bills. Let us imagine that there is an accident in a school whereby a great deal of dust, including asbestos, is released. The person who is injured, perhaps only slightly to begin with, does not press a claim. Then, two, three or four years later, the person finds that what was judged to be only a small injury at the time is much more serious. I feel that an exception ought to be made in certain very serious medical cases, or that at least some provision should be made for that. It is undoubtedly the case that well over 90% of injuries are apparent and should of course be claimed for immediately, and it is wide open to abuse to have a longer period, which makes them less easy to verify. However, there are exceptional instances where the extent of an injury will not become clear in the short term.

I welcome the dispositions relating to witnesses and the fact that the substance of cases may be reported without the names. It is also a very good reform that, in the case of the Supreme Court, which would involve a keynote case which will affect a great many costs, other relevant witnesses may be called so that the full range of issues can be considered.

I admire the work that the Irish Courts Service has been doing over several years on the refurbishment of courts. Money from dormant accounts will be used for that purpose. Courts fall into two categories. There are modern or reasonably modern courthouses which must be kept up to date and provide modern, decent comfortable and, indeed, warm facilities. I do not know how many district judges in the past have complained about freezing conditions. I draw the Minister's attention to the historic court buildings, of which there are several around the country. There is the Green Street Courthouse and that in Tralee. A magnificent job was done restoring Clonmel Courthouse, where the State trials took place in 1849. It is perhaps not directly part of this legislation, but I would like to plant the thought in the Minister's mind that provision might be made on a non-sitting day such as a Saturday to open those historic courthouses, which are major buildings in some towns, to the public, with a guided tour, perhaps with guides provided by the OPW. Several courthouses in the country are of very strong cultural interest.

I have no difficulty with legislation the purpose of which is to penalise and try to prevent fraudulent claims. However, in this legislation, the balance is weighted against genuine plaintiffs and claimants and in favour of the defendant and the insurance industry. Senator Feeney said that we are all held to ransom by fraudulent claimants. The vast majority of claimants are genuine, and many people are genuinely injured but do not make claims. I accept that one must do something about fraudulent claimants, but not at the expense of hurting genuine claimants or deterring them from taking cases and being properly compensated for their injuries.

While such information is personal, I am sure that many people in these Houses have made claims for accidents in which they have been involved, with genuine reason for doing so. Many people in many families do it, and those who abuse the system are in the minority; it is very important to point that out. Those involved in the insurance industry are not charities to look out for the common good of the people. They are profit-making organisations.

There are issues concerning legal costs, fraudulent claims and the level of awards made, which affects insurance costs. However, the profit made by the shareholders in the insurance industry must also be considered. I received documentation from the Law Society, which wrote to me about the legislation, which it generally welcomes, saying that it implements many of its own proposals. However, it also raises several important concerns. Listing them might be helpful to the Minister, who I hope will take them on board. Its first problem with the legislation concerns section 6, which amends the Statute of Limitations (Amendment) Act 1991. I see no problem with the limitation period being three years. Three years is a short limitation period in the context of other limitations in civil law. The Law Society is concerned that rather than affecting the bogus claimant, who is aware that money can be made and does not wait before initiating a claim, the limitation will affect a genuine claimant who is more reluctant to make a claim and who spends time pondering the matter and talking to people before eventually deciding to take a case. It is the genuine claimant who will be affected by this section.

I would be interested to hear the Minister's comment on an example raised by the Law Society. It is concerned, in particular, about people who are more seriously injured. It says that they are more likely to be detrimentally affected by this reduced time limit, for example, a person with a head injury or someone who is hospitalised. There may be such chaos in their lives that they will not start to write a letter of claim within two months or issue proceedings within a year.

Another example would be a case of medical negligence. Many families are surrounded by so much trauma and grief regarding the incident that could give rise to a personal injury claim that they do not even conceive of the possibility of medical negligence and would not be capable of adhering to the time limits of this and other sections of the legislation. The Law Society is right to raise concerns about people caught in this type of situation.

Another concern is that solicitors will have to worry about the possibility that they may be considered negligent if they do not issue proceedings. The legislation may therefore give rise to more proceedings being issued as a protection against professional negligence. The Law Society and others have raised this issue.

In some situations people do not get round to initiating proceedings. They might get their solicitor to write a letter or there may be phone calls involved. Perhaps a medical report will be handed to the insurance company and they settle with that. This legislation may discourage this type of arrangement, which reduces legal costs between the two sides. People will now be conscious of the time limits and the defendant will know these limits are very much on his side.

The Law Society has other concerns apart from the penalisation of genuine claimants. It feels the legislation will discourage proper investigation of cases because it may no longer be feasible to carry out lengthy investigations before the issuing of proceedings. This will have a destructive effect on the process. The legislation for the Personal Injuries Assessment Board provided for a temporary suspension of time under the Statute of Limitations. The PIAB does not apply to medical or clinical cases and many claims are excluded from its remit. Even if the PIAB allows for the suspension of time, proceedings will probably still issue in under less than two years.

The Statute of Limitations is very strict with regard to personal injury cases but in other torts the period is generally six years. The Law Society cites the example of a large corporation involved in a commercial dispute. It would have five times longer to decide whether to pursue another party for breach of contract than a citizen who suffered personal injuries. This is an imbalance in the overall scheme of Statute of Limitations.

The society mentions other areas which will be damaged by this new time limit. It suggests that a letter of claim would provide adequate information to a defendant of an intended case, without the imposition of this additional time limit. It considers that this change will infringe fundamental human rights and the European Convention on Human Rights Act 2003.

With regard to a letter of claim, section 7(1) states "A person who intends to bring a personal injuries action shall, not later than 2 months after the date of accrual of the cause of action, or the date of knowledge...serve a notice in writing on the wrongdoer or alleged wrongdoer". Failure to write such a letter results in the plaintiff, potentially, being penalised and entailing the risk of costs. There is no similar obligation on a defendant to furnish a letter of admission of liability within, for example, two months of receipt of a letter of claim which may result in the awarding of damages to a plaintiff who has been put through the stress and trauma of pursuing a valid claim. This is an example of imbalance between what is required of the plaintiff and a defendant under this legislation.

Section 7 also fails to have appropriate regard for circumstances where severe injuries have left the party incapacitated or hospitalised and unable to write the letter of claim. Through no fault of their own such people then have to go cap in hand to the court seeking a concession as to why an order for costs should not be made against them for not providing this letter of claim within the time limit. This may affect overall costs. If they win the claim, it could result in a reduction in the costs to which they are entitled or involve an additional cost for which they are liable. The Law Society feels this section is unrealistic and that it will be breached without blame in the majority of cases. Instead, it suggests that the section should impose a requirement on the plaintiff to write a letter of action in adequate time before the issue of proceedings. If not, the court would then be entitled to penalise the plaintiff.

I have some general concerns about Part 2 which singles out personal injury claims — I already gave examples of longer time limits in other torts or where a company might decide to pursue another party — and stigmatises them within the court system. This is very much the tenor of this debate and of much debate in these Houses. I agree that we need to do something about bogus claims. However, we must consider that the majority of claimants are genuine and we must protect their rights.

People often do not realise how significant an injury is at the time, particularly if they are involved in a road accident. If a truck runs into the back of a car, it could be a year before the car driver feels the detrimental effects of the impact. I was involved in that type of accident two years ago. I still feel the effects of it. I took a claim, rightfully, and I have no problem admitting to that.

I wish to point out what I think is an error in the Bill, something I hope the Minister will amend. It concerns section 11(3) which begins "Where a defendant fails to comply with this section". I understand from the Minister that he agrees the word in 11(3)(a)(i) should be “defendant” and not “plaintiff”.

I should be sanctioned.

Exactly.

I am told there is another similar error somewhere.

I will raise additional points on Committee Stage. The Law Society has expressed concerns about mediation. It said that this would add additional costs to the system, as opposed to reducing costs, and would put pressure on the plaintiff to bow to the wishes of an insurance company. Pressure could be brought to bear on the plaintiff at that stage and this needs to be taken into account.

I referred earlier to the balance being tipped against the plaintiff, but there is not the same provision for defendants. In regard to the verifying affidavit, my understanding is that there are only certain circumstances where the defendant has to provide that. The defendant does not appear to have to sign an affidavit if he elects to contest a claim. He or she may make assertions and allegations including, for example, specifics of claims for negligence on the part of other parties and they do not have to provide an affidavit in that circumstance. The Minister stated that it looks to both parties; if that is the case it should be reflected in the legislation. I intend to propose an amendment to that effect on Committee Stage.

I welcome the in camera rule and request that it be introduced for child abduction cases. I do not think it is covered by the legislation and this should be considered.

I welcome the Minister and the Bill, which is worthy legislation. Like Senator Tuffy, I hope genuine claimants will not become victims of the Bill.

I was told recently of a case where a person was quoted €1,800 for car insurance. Due to the high nature of the quote he telephoned another company which quoted him €500. He next went to a broker, a group about which Senator Ross has much to say. In fairness to the broker, in this case he said the best he could do was a quote of €1,100, but he suggested that the man get in touch with the company concerned directly. When he did so, the company gave him a quote for €800. Ultimately one company was underwriting the quotes for all these various companies as well as the broker. In many cases it is people who have insurance for a number of years who are being fleeced.

In recent years the extent to which first-time drivers were being fleeced has been exposed, whether they were put on their parents insurance or were insured in their own right. Currently it is those who have policies for a number of years who are being fleeced. Unless people shop around they will be fleeced. I am not sure it will be the case, but I hope the Bill can address some of those issues. Will the Minister convey what I said to his colleague the Tánaiste and Minister for Enterprise, Trade and Employment?

Section 34 deals with the provision for the carrying out of functions of the registrar to the Central Criminal Court by the local county registrar or a member of staff of the local Circuit Court office when the Central Criminal Court is sitting at that location. The Courts Service did great work recently in upgrading courts. In some cases, courts are sitting on a full-time basis. Is it the intention of the Minister that the county registrar will have to second a member of his or her staff on a full-time basis to the Central Criminal Court when it is sitting? Will county registrars be allowed additional staff in such cases? I hope the Minister will address this matter.

Sections 35 to 42 address the implications of the Valuation Act 2001 for court jurisdiction in property matters, mainly in so far as the Circuit Court is concerned. That jurisdiction is currently determined by reference to rateable valuation and gives the Circuit Court jurisdiction where the rateable valuation does not exceed €253.95. The Valuation Act 2001 provides for a new valuation system which will more accurately reflect current property values and the courts' jurisdiction needs to be modified to reflect this. These sections change the jurisdiction limit of €253.95 rateable valuation to a market value of €3 million. These sections do not cover the family home. Rateable valuations are set for the country and it is possible to find out what they are.

They have been abolished. If one builds a new house one will not get a rateable valuation any more. If one builds a mansion, nobody will come out and value it.

Does the legislation completely abolish rateable valuations?

It substitutes market value for rateable valuation.

This is the legal framework for doing it. I was concerned about cases where one might have a rateable valuation but the need to obtain a current market value would require the services of auctioneers or valuers. I am delighted the Minister clarified that point.

The point raised in regard to rateable valuation reflects the new law. The old system of valuation has been swept away. Premises that are subject to rates are being done by reference to their open market value. I will take a look at this measure, however, because it may be important. One advantage of the rateable valuation system is that the rate was set and it was not open to argument. We must ensure that we do not introduce a system where there is argument about whether a house is in the jurisdiction of a Circuit Court or the High Court. It would be the worst of all worlds if people started bickering as to which court it should be in and waving auctioneers' reports at each other. That would not be a good idea at all.

In response to Senator Tuffy, child abduction cases are heard otherwise than in public. The Amendment of Courts (Supplemental Provisions) Act 1961 provides for this in section 31 under minor matters. Her point probably comes under this remit, but I will check it.

A point that many Members raised, which is probably the most frequently expressed doubt in regard to the Bill, is in regard to the appropriateness of reducing the limitation period for a person injured from three years to one year. Some of the criticism expressed in regard to this proposal is predicated on the assumption that this amendment will serve to defeat claims of persons who have difficulty in establishing what exactly happened to cause their injury. For example, in regard to medical negligence, it may take a long time for the injured party to ascertain what went wrong in the course of a medical procedure, whether this caused their injury, whether doctors, nurses or other staff were to blame for the outcome and so on.

Section 6 merely changes three years to one year. It does not change the date from which the limitation period begins to run. That remains as provided for in the Statute of Limitations (Amendment) Act 1991. That Act provides that a personal injuries action shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge, if later, of the relevant person. The date of knowledge is defined as the date upon which the person first had knowledge of the following facts: that the person alleged to have been injured had been injured — if one does not know that one has been injured the date of knowledge has not arrived; that the injury in question was significant — if one fell down a stairs and grazed one's hand and set off a reaction in one's brain, for example, one might say that the insignificant injury does not start the clock running; that the injury was attributable, in whole or in part, to the act or omission which is alleged to constitute negligence — this would apply to somebody who comes out of hospital feeling awful but knowing what caused the problem; that the identity of the defendant must be known — if one does not know who caused the injury or if one cannot reasonably know this, problems arise; and if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against a defendant.

On the period after which action cannot be brought, I fully accept that the relevant provision does not dispose of the argument completely, but it draws attention to the fact that it used to be the case that the statutory period could expire before one knew one had a case. This is no longer the case since 1991. Bearing in mind the provisions of the 1991 Act, the one year period looks a lot more generous than it would otherwise appear if taken as a stark calendar period. How would the lapse of another two years make it clearer to one, having had all the knowledge in one's mind, that one should bring an action? Some may criticise the one year period, but three years from the date of knowledge is a very lengthy period to give people to make up their minds on the issue. However, I will reflect upon what has been said on this matter.

I believe in mediation and do not accept the reservations of the Law Society in this regard. It is a good idea and a way of ensuring cases do not go to court. It involves a mediator trying to bring the parties together rather than an arbitrator simply listening to both sides, therefore, it is a useful function. Let us be practical and realise that mediation is more useful that the tangling that occurs between the plaintiff's and defendant's solicitors at settlement sessions in the Four Courts, in which nobody really tries to act as mediator. Much bluff and counter-bluff takes place on these occasions.

Senator Tuffy believed this Bill was, in its conception, more pro-defendant than pro-plaintiff. The Law Society, in its oral and verbal submissions to me in the course of the preparation of the final text of the Bill, made similar points. However, we are not dealing with a symmetrical situation. For instance, it is not the case that defendants are getting away with unscrupulous defences too much and that this is a major social problem. Our problem is that jobs and the competitiveness of the country, as Senator Mansergh stated, are being seriously prejudiced by the fact that the balance was tilted in the other direction. While I would always claim to be introducing balanced legislation, I am not trying to recalibrate this Bill in a way that leaves the balance more or less as it is. I believe the balance was excessively pro-plaintiff and I am moving the balance back — Senator Tuffy is correct in this regard — so it will be more significant, in an adverse way, from the point of view of plaintiffs. Plaintiffs will now be on their mettle. The rules were too soft in the past. Like Senator Tuffy, I was a practitioner of the law and on the basis of my career as a barrister I would say the system was slanted towards the plaintiff.

Senator Tuffy stated some of the procedures are over-prescriptive and that a vaguer language might suffice. One of the problems with our personal injuries legislation is that, if one looked at the rules of our superior courts, one would say there is no problem at all. It is how the rules are carried out in practice that makes the difference. We must get real about the significant cost to the economy of what has been referred to as the compensation culture. When commencing litigation, people should not be setting out to win the national lottery but trying to obtain fair compensation for their injuries. Compensation must be measured and conservative. We cannot all be Santa Claus and the legal profession should not nurture a compensation culture as if there were no cost involved. Everybody bears the cost. If Ireland's compensation rates are high and our insurance premia are high, and if that has a significant economic effect, mobile economic activity will go to Latvia, Lithuania, and the Czech Republic, where broken arms will attract fractions of the compensation we would hand out and consider to be fair. I am not asking that we dismantle our system and make it comparable to the continental one, which is in many cases seriously unfair, but that we must moderate the cost of insurance in the Irish economy generally.

On verifying affidavits, section 13(2), in its current form, states: "Where the defendant or a third party in a personal injuries action serves on another party to the action any pleading containing assertions or allegations, the defendant or third party, as the case may be, shall swear an affidavit verifying those assertions or allegations." However, the problem is that the defendant's position is not the same as a plaintiff's and I remind Senator Tuffy that the plaintiff undertakes the onus of proof. If he or she leaves the court without having tipped the balance in his or her favour, the defendant wins. This is a part of our system. The plaintiff, in starting proceedings, imposes upon the defendant all kinds of responsibilities as a defendant in the case. Therefore, every plaintiff's case should be verified on affidavit and the defendant should not be asked to swear an affidavit unless he or she is asserting some special fact upon which the defendant proposes to rely. In other words, if the defendant proposes to say, by way of defence, that the plaintiff was drunk, he or she cannot simply assert it but must state that he or she believes it to be true. One cannot just theorise on the case.

The purpose of this legislation is to ensure that bona fide claimants for compensation will be compensated but that those who are inclined to exaggerate their claims or bring entirely false claims will hesitate hugely before doing so. Doubtless, such cases will brought. There is an example in today's newspaper of a grossly exaggerated claim being made and flung out by the courts only yesterday. I do not believe this legislation will stop this from happening again, but it will bring home to plaintiffs that they are playing a very serious game of poker if they believe they can bluff their way towards undeserved compensation and that the consequences of losing in this game will be much more serious than they have been in the past.

One good point about this legislation is that it requires any lawyer or solicitor acting for a plaintiff to draw to the plaintiff's attention the provisions of this Act. The plaintiff will have to swear in the affidavit of verification that he or she has been warned of the consequences of the provisions of the Act. A conversation will have to take place in the solicitor's office at some stage before litigation begins in which the solicitor will have to say to the plaintiff that if he, the plaintiff, brings any part of his claim in bad faith or exaggerates, he will commit a serious criminal offence, and that if part of his claim is genuine and he is thinking of gilding the lily in respect of another part, the costs of both parts will be awarded against him. Conscientious solicitors may already do something similar but now they must do it. That will detract seriously from the culture of shaking the tree to see will anything fall from it or taking a chance on finding a a naive claims manager who will throw out a few thousand euro just to get rid of the case. There will be a totally different attitude as a result of this legislation.

I agree with Senator Mansergh's proposition that courthouses be opened to the public. We open Government Buildings and the Cabinet rooms on Saturdays to members of the public so that those who are interested can see how those places, which are normally off-limits, look. I intend bringing this point to the attention of the Irish Courts Service because there are many amazing courthouses which members of the public would like to see. They are welcome to visit while cases are at hearing but some might also like to hear about their features on a guided tour. Sligo courthouse is a beautiful Victorian building which deserves a visit.

The Irish Courts Service is doing a wonderful job restoring a rich legacy of courthouses across the country. It is also closing several small court venues so that the facilities described here can be made available, especially in family law cases. This will provide places in which clients and witnesses can talk to their lawyers in privacy and not in a large hall where they are stared at by others. I urge Senators to visit some of the magnificent restoration projects under way. They make me proud when as Minister for Justice, Equality and Law Reform I am asked to open them or to inaugurate the restoration process. It would warm the cockles of one's heart to see the great achievement of turning around a legacy of several decades of neglect of some of the most magnificent public buildings in the country.

I thank the Members of this House for their thoughtful response to this Bill and look forward to Committee Stage when the individual sections will be discussed in detail. I reiterate that I am open to any constructive and reasonable amendment to the legislation because I do not claim to have a monopoly of wisdom or truth and we want the best possible legislation to deal with a very serious problem.

Question put and agreed to.
Committee Stage ordered for Tuesday,23 March 2004.

When is it proposed to sit again?

At 2.30 p.m. on Tuesday,23 March 2004.

Barr
Roinn