Until the introduction of the Civil Liability & Courts Act 2004 it was usual for the Defendant to put the Plaintiff on full proof of everything that was claimed in the Particulars of Claim. This essentially meant that throughout the Defence each matter was neither admitted not denied and the Plaintiff or Claimant was required to prove each and every aspect of it. Such blanket non-admissions were standard throughout Defences.
Section 12 (1) of the Civil Liability & Courts Act 2004 was introduced and referred to the requirement for specificity in the pleadings.
Justice Collins in the case of Crean v Harty [2020] IECA 364 “it is, of course, highly unusual for the Oireachtas to legislate for the form of pleadings in any area of litigation. That is generally left to the relevant rules committees. It seems wholly implausible that the Oireachtas intended simply to enshrine into primary legislation the existing principal of pleading under the rules, as developed in the juris prudence. That impression is strongly confirmed by the relevant 2004 Act. I agree with Hogan J (in Armstrong v Moffat [2013] 1IR 517) that the Act makes very significant changes to the system of pleadings in personal injury actions. The requirements for pleadings to be verified on affidavit is a very significant innovation. In addition, the provisions of section 10 – 13 of the Act are clearly intended to ensure that parties (including Defendants) plead with greater precision and particularity so that, in advance of trial, the actual issues between the parties will be clearly identified. Even if not a regime of “maximum disclosure” the pleading regime introduced by the 2004 Act certainly imposes obligations of enshrined disclosure on personal injury litigants.
In the recent case of Nangle v Ryanair DAC [2023] IECA 118 Justice Noonan interpreted that judgment demonstrating that it is designed to avoid “trial by ambush”.
Therefore, it is clear that the current position is that a significant burden is placed on both the Plaintiff and the Defendant and the Defendant cannot now plead in a generalised manner and must clearly specify what is intended to be asserted.
Defendants must now be clear, specific and definitive in any claim of defence and/or contributory negligence.
These recent decisions are a reminder to Plaintiffs and Defendants of the importance of compliance with sections 12 – 14 of the Civil Liability & Courts Act 2004 and a reminder of the importance swearing affidavits of verification, a reminder that is an offence to swear a misleading of false affidavit.
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This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by McElhinney & Associates for any action taken in reliance on the information contained herein. Any and all information is subject to change.
About the Author
Jolene McElhinney, BBLS, Principal Solicitor
Jolene McElhinney is the founding principal of McElhinney & Associates, renowned for her expertise in employment law and personal injury claims across the North West of Ireland. With a distinguished academic background and over a decade of experience, Jolene is dedicated to providing personalised, expert support to her clients, ensuring they navigate the complexities of the legal landscape with confidence and clarity.
