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A mechanism for pre-trial resolution of medical malpractice claims explained

DATE: 24.06.2011


Parties to an action are often eager for their cases to settle early and reduce their legal costs. Under the Courts and Civil Liability Act 2004 provision is made to encourage settlement by way of formal offers in personal injury/medical negligence actions.

Section 17 of the Act provides a mandatory obligation on the Plaintiff to deliver a formal offer, indicating terms of settlement, no later that 14 days after service of the Notice of Trial. The Defendant is obliged to respond. Section 17 gives a Judge the opportunity to penalise a party that would otherwise be entitled to an order for their costs but for their unreasonable conduct in making an offer of settlement.

In practice, section 17 has posed some difficulties, with reluctance on the part of some Plaintiffs to deliver offers. Also, certain Plaintiff firms press for a simultaneous exchange of offers, although the rules do not provide for this.

The recent High Court case of O’Donnell v McEntee, 18 December 2009, had the potential to form a landmark judgement in clarifying the law in this area. Unfortunately it did not. The Defendant issued a Motion to compel the Plaintiff to make a section 17 offer. The Plaintiff having issued a Notice of Trial several months earlier, argued that they could not make an offer as expert reports were outstanding. The issue before the Court centred on the conflicting interpretations of section 17, especially which party should make an offer first.

However, in his judgement, Mr Justice Kearns did not overtly clarify the position.  Failing to make any order regarding sequential offers, he believed the only thing clear was that both parties are obliged to make their offers within the time stipulated[1] . This meant the parties should make an offer at their moment of choosing within a specific period. He rejected the view that the statutory provisions leave it open to the parties to make section 17 offers at any time up to and including the Trial itself. He added that any inability to be precise as to the level of an offer should not result in an adverse award of costs, if the inability to fully quantify the claim is reasonable at the time the offer is formulated. Mr Justice Kearns concluded by compelling the Plaintiff to make an offer pursuant to section 17 pre-trial.


[1] SI No 169 of 2005 s(4) meaning the period commencing on the prescribed date and ending on the expiration of 14 days after the service of the Notice of Trial in those proceedings.


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