Introduction

In every personal injuries case, the parties are obliged to provide full and detailed particulars of the factual bases of their claims.[1] The Court of Appeal has considered how a number of personal injury cases were pleaded in practice and the intention of the legislature when enacting a number of the provisions of the Civil Liability and Courts Act 2004 (the 2004 Act). This is likely to have implications for legal practitioners and their clients.

The 2004 Act outlined a number of changes to how personal injury pleadings should be drafted. The Court of Appeal considered some of these in the case of Crean v Harty.[2]

In this medical negligence case, Mr Crean claimed that he did not provide consent for a third hip replacement operation. He argued that he had not been informed of the significantly increased risk of nerve damage. The clinician denied in their defence that the consent was deficient but did not provide specific reasons for this denial. Mr Crean sought further information about the consent process on foot of this denial. Mr Crean argued that he was entitled to further information about this denial, on the basis that he would be ambushed at trial as he was not aware of the clinician’s views of the consent process. In addition, he argued that the consent form may not have captured all of his interactions with the clinician.

The Court considered whether Mr Crean was allowed this information and ultimately decided in his favour. The reason for the Court's decision was based on its determination that the wording of the denial itself amounted to a positive assertion that the consent was appropriate. The Court also found that the unambiguous and imperative terms in the wording of section 13 of the 2004 Act meant that the further information should be provided.

Importantly, the Court highlighted that whilst the 2004 Act was not a regime of maximum disclosure, it did impose obligations of enhanced disclosure, to fairly enable each party to prepare for trial. This included pleading with greater precision and particularity and avoiding the use of vague, general language.

This approach was endorsed in Morgan v ESB[3] where the Court again highlighted the need for specificity in pleadings, finding that the intended effect of the 2004 Act would be undermined should parties continue to plead in ‘wholly generic terms.’

The Court in Crean also highlighted the very significant innovation of requiring pleadings to be verified on affidavit under the 2004 Act. In a subsequent case of Naghten v Cool Running Events Limited, the Court of Appeal emphasised that this provision applies to both the party bringing the claim and defending the claim alike. Further, the Court emphasised the duty on solicitors to advise clients about what they are signing and the consequences of signing something that may not be true. The Court of Appeal emphasised that ‘the days of making allegations in pleadings without a factual or evidential basis…have long since passed.’

Conclusion

The Court of Appeal has endorsed the requirement for parties to plead personal injuries claims with greater precision and particularity, as well as emphasising the significance of verifying pleadings on affidavit. Legal practitioners should take note of these decisions when considering if pleadings are ambiguous or imprecise and if further and more accurate information is warranted. Legal Practitioners are also reminded of their duty to advise clients of the significance of swearing an affidavit of verification and the very serious consequences that may arise if what is verified on affidavit subsequently transpires to be incorrect.

For more information, contact a member of our Healthcare & Medical Law team.