By Eoin P. Campbell LLB, Solicitor
Letters of Claim
Under the Civil Liberties and Courts Act 2004, a person wishing to make a personal injury claim in Ireland has the period of two months or “as soon as practicable thereafter” from the date of “the cause of action” in which to advise the alleged wrongdoer that a claim is being made against them. This task is normally performed by a solicitor once they have been instructed by a client, and pre-warns the defendant that they will be hearing from the InjuriesBoard.ie with a Formal Notice — a notice which informs the defendant that the InjuriesBoard.ie has received an application for a personal injury assessment.
A standard letter of claim will normally provide brief details of the claimant´s cause of action (i.e. the subject accident) and invite the defendant’s proposals for compensating the plaintiff. The letter of claim indicates that the claimant holds the defendant responsible for the accident; that it was caused by the defendant’s negligence and that therefore he or she is liable for same. The defendant is also warned that failure to compensate in full the claimant for his or her injuries, loss or damage will result in litigation being commenced against the defendant.
Multiple Defendants
In the majority of personal injury claims, it will be abundantly clear that the claimant has been the victim of one other party´s negligence and has suffered an injury through no fault of their own. In these cases, one “Letter of Claim” will suffice to satisfy the legal requirements. However there may be several potential defendants to the claimant´s compensation claim and, if each of the defendants did indeed play a part in the claimant´s injuries due to their own negligence, it must be decided to what extent they are each respectively liable.
A multiple car crash, for example, may involve a number of potential defendants. If one driver is at fault for an initial collision, the claimant will normally have a strong claim against that individual for the injuries sustained. It may however be the case that a third or even multiple drivers collide into the claimant´s car following the initial accident resulting in further damage to the claimant´s vehicle or, more seriously, further injury to the claimant himself. If the other cars were driving too fast or too close to the initial vehicles at the time of the accident, this could constitute negligence on their part and there is potentially a claim against them.
The O´Byrne Letter
In these circumstances the standard “Letter of Claim” which the claimant´s solicitor usually sends to the defendant is replaced by an “O’Byrne Letter”. When multiple potential defendants are involved in an accident, the O’Byrne letter addresses the issue of liability as between the defendants. It is for the individual defendant or their legal representatives, therefore, to argue that another defendant (or defendants) was responsible or perhaps ‘more’ responsible (and therefore liable or ‘more liable’).
An O’Byrne letter should include standard details that one would normally find in any letter of claim, for example the name and address of the claimant and brief details of the subject accident. However, the O’Byrne letter differs from the standard letter of claim by stating that the accident in question happened as a result of the negligence of the recipient and / or that of one, other or several potential respondents/defendants but that the claimant is not in a position to say who is responsible.
Contents of an O´Byrne Letter
Like any other letter of claim, the O’Byrne letter calls upon the recipient to admit liability within a certain specified period and to make proposals to compensate the plaintiff. This is followed by a warning to the recipient that in the absence of an admission of liability, and his or her proposals to compensate the plaintiff, application will be made to the InjuriesBoard.ie. (The Injuries Board.ie allows defendants 90 days to respond to respond to their Formal Notice after which time, if no reply is received, they are deemed liable by default)
The letter should include a warning to the recipient that if court proceedings against all of the defendants become necessary, the O’ Byrne letter itself will be used in evidence in order to fix the unsuccessful defendant(s) with the costs of same in favour of the defendant(s) who are found to be not liable. Indemnities from the recipient will also be demanded relating to the costs of unnecessary court proceedings against any of the potential defendants who will not participate in the InjuriesBoard.ie assessment or who reject the amount assessed by the board. Moreover, the recipient is warned that in absence of an indemnity, the claimant will seek to recoup these costs in further court proceedings and that the O’Byrne letter will be used in evidence to fix the wrongdoer with the costs of same.
Retaining Evidence and Division of Liability
If it is possible, and indeed relevant, the claimant may request a written undertaking that property involved in the accident will not be altered, improved or modified by the recipient before it has been examined by an expert witness. This request (when it is applicable) is normally accompanied with a warning that, failing receipt of such an undertaking, the claimant will make application to court under the Personal Injuries Assessment Board Act 2003 for the necessary interlocutory order as may be necessary and for the recovery of the costs of any such application.
What is important to remember is that where there are a number of wrongdoers and it is unclear who was “most” at fault or caused the greater damage or injury to the innocent claimant in an accident, this is not an issue for the claimant to prove or even engage in debate over. The claimant´s solicitor will make it clear from the outset that this is a matter for the various respective defendants to agree amongst themselves.
It is important to note that each case is unique. If you have been involved in an accident where more than one person was at fault and feel that you have a potential personal injury claim you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.