Ambulance Chasing: a corporal work of mercy?

There is need for a new charity to be established in Ireland. It will seek out people suffering personal injury. It will advise that the injured person (“the victimâ€?) should immediately consult a solicitor to determine whether there is a cause of action arising from the incident in which the victim was injured.

The need for this charity arises from the terms of Section 8 of the Civil Liability and Courts Act 2004.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action may—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of actionâ€? means—

(a) the date of accrual of the cause of action, or

(b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed,

whichever occurs later.

Very few people are aware of the Section. It is draconian. It places an onus on a victim of negligence or other wrongdoing to write the required letter to the wrongdoer at a time when most such victims are struggling with the practical consequences of their injury and, often, are still in hospital.

If the letter mistakenly describes “the nature of the wrongâ€? (what does that mean?) then the victim has failed to comply with the Section. This is a reason for the need for the services of a solicitor to deal with the requirement.

Everybody is presumed to know of the Section. Not to know of it is not “reasonable causeâ€?. To know it (which is the presumption) and not to write the letter leads to the inference that the victim wished to gain advantage at the expense of the wrongdoer. (It is hard to know what other inference might be drawn. To draw an inference is to follow a mental process that is independent of the actual intention of the victim.)

A failure to write the letter may result in a penalty (possibly a substantial one) being inflicted on the victim. Ordinarily, a successful litigant in a personal injury action is awarded the costs of bringing the action. The Section permits that some or all of the victim’s costs be denied him/her. This is a very heavy penalty. Even in the circumstances of the exercise of a judicial discretion it is hard to see how the Section will avoid being exercised in, objectively, a capricious way.