Pragmatic amendment of Superior Court Rules in respect of Lodgements and Tenders

Over 90% of Personal Injuries claims brought in Ireland settle by way of negotiation. The system (prior to the Covid-19 pandemic stall) encouraged parties to settle matters. Unfortunately, the Covid-19 pandemic displayed the weakness within the system the random assignment of your case to the next available Judge. This resulted in the current President of the High Court, Justice Mary Irvine, encouraging parties to explore settlement to avoid justice being delayed and publicly stated “Regrettably, however, a substantial number of claims only settle on the day they are listed for hearing.”

If a Defendant makes a settlement offer to a Plaintiff which is refused, the Defendant may lodge the offered amount into Court or if the Defendant is a Qualified Party, they can issue a Notice of Tender for the offered amount. If at the end of the case the Judge hearing the case awards an amount that is less than the Lodgement (or Tender) previously made by the Defendant, the Plaintiff will generally be obliged to pay the legal costs of both sides from the date the Lodgement (or Tender) was made. However, the Court retains its discretion as to whether it makes such an Order in respect of costs.  

The rules governing when a Lodgement (Tender) can be made are set out under Order 22 Rule 1 or the Superior Court Rules. Lodgements (or Tenders) regarding of Personal Injuries matters where made either at the time the Defendant delivered his/her/their Defence or when Notice of Trial is served (The Defendant would have four months to make a Lodgement (or Tender) from the date the Notice of Trial was served). The time limits to make a Lodgement (or Tender) or increase the Lodgement (or Tender) are extended by 21 days with Notice to the Plaintiff if the Plaintiff serves Replies or additional Particulars after the time limit for a Lodgement (or Tender) has expired or if more than 18 Months have passed since Notice of Trial has been served.

Before 26 April 2022, if a Defendant wished to make a Lodgement (or Tender) at another time or if they wished to increase the amount being Lodged (Tendered) he/she/they would first have to obtain the consent of the Court (who might impose conditions on the Lodgement or Tender). However, the Superior Court Rules have today been updated in respect of Lodgements (and Tenders). Now the delivery of a medical report will open the door for a Defendant to make a Lodgement (or Tender)  or increase an existing Lodgement (or Tender) without the necessity for leave from the Court for a period of 21 days from delivery of the medical report with Notice to the Plaintiff.

As there are often updated reports exchanged in the run up to a trial, this amendment to the Superior Court Rules will mean practitioners will need to carefully consider the risk and/or reward of any further exchanges particularly where there have been unsuccessful negotiations as parties may have disclosed their positions quantum. However, this may be of little benefit to some Defendants when Plaintiff’s serve reports in the days/hours before the matter is to be heard.  

If practitioners on both sides keep within the spirit of the Rules of the Superior Courts and comply with the Rules of Disclosure this amendment may encourage the conclusion/settlement of matters before reaching the Courts steps and assist in the progression of the current backlog of cases.

For further information, please contact Aislinn Power (Solicitor) or your usual AMOSS contact.