Each relevant day the Legal Diary carries this message;
“With effect from Thursday the 1st December 2011 the following arrangements will apply to all cases listed in the Dublin Personal Injuries List. Cases not assigned to a judge for hearing on the day on which they are listed will roll over from day to day until the end of that week. Any cases not reached or commenced at the end of a week will be dropped from the list and will require, in due course, an application to be made for a new hearing date in the usual manner. All Specially Fixed cases and cases afforded priority will retain priority over other cases and will be assigned for hearing in the order in which they appear in the list. All other cases will be assigned for hearing at random each day and not in the sequence in which they appear in the list….. Parties must notify the Court if an Action is likely to take more than four days for hearing.”
The trial of any High Court personal injury action is a complicated project. Like all cases, it is a contest between the Plaintiff and the Defendant. In some cases much will have been agreed or conceded; in others everything will be in issue.
The trial must be run in accordance with the rules of evidence. So, in the absence of agreement, a Plaintiff must prove the injury and its extent and consequences and that the Defendant caused it. The second of those issues is the liability issue, the first is the quantum issue. Sometimes the quantum issue is a liability issue; the Defendant may not dispute that the Plaintiff is suffering some health problem but may dispute that the Defendant caused the health problem.
In these circumstances the Plaintiff will have to bring his/her doctors to court to give evidence and be cross-examined. (Of course, the Plaintiff will also be giving evidence of, at a minimum, his/her injuries.)
Doctors are busy people, some more than others. A doctor may be habitually in surgery, working long and erratic hours. Nonetheless, when requested to attend court to affirm the contents of a medical report, the doctor has a professional duty to attend.
But when? The quoted notice sets out the position; no ordinary personal injury case listed for hearing in the High Court is assured a hearing, not to speak of a hearing date. But, the Plaintiff must turn up on the date the case is listed. The Plaintiff must be ready to prove the case. Then the court system fails the Plaintiff. There are no judges available to take any of the listed cases. Even if there is a judge, each case is put into a lottery to see which case(s) will go the available judge(s).
Not to worry, there is always tomorrow. Indeed, but what about the witnesses? They presumably made arrangements to drop work promptly on getting the call from the Plaintiff’s solicitor and go to court in accordance with some scheduling scheme of very delicate construction (because it is difficult to estimate for how long a prior witness will be giving evidence).
And what of the Plaintiff and his/her supporters/relations? They have to put their employment on hold. But read the notice; the case will roll over from day to day to the end of the week. So the time out from ordinary mundane life lasts just a week (less one day; Monday is exempt from trials).
Who pays for these waiting days? The Plaintiff must pay, because the Defendant will not be obliged to pay for the delay. It was, after all, generated by the Courts Service, you might think.
In the view of this writer you would be wrong. It is wrong to think that every personal injury action must have a trial. This is impossible; there are not enough court resources (judges, courtrooms etc.) to deliver this in fact. So, the system must be one that achieves settlements acceptable to Plaintiffs and Defendants. A system which establishes principles of liability, and quantum values, is the required system. If a Defendant knows that the system will deliver a judgment for the Plaintiff and knows what the compensation for the Plaintiff is likely to be only two issues remain to be vouchsafed; that the costs will increase with the passing of time and that those costs will have to be met by the Defendant.
That is the system that currently is missing in the Irish High Court and that explains the notice in the Legal Diary.