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Injured? What to do. (4)

Section 10 of The Civil Liability and Courts Act 2004 has the appearance of being reasonable, but the references to the address and occupation of the defendant are telling. The obligation to plead these is conditional on the plaintiff knowing them. Thus, if they are not pleaded, the defendant knows that the plaintiff does not know them. Of course, given that the Personal Injury Summons is directed to the defendant, it is surely odd that a statute requires a plaintiff to demonstrate knowledge of the defendant. There are practical reasons why the plaintiff needs to know the address of the defendant, but to require that it is pleaded is not to assist the plaintiff or, even, the defendant; he/she knows already.

Then, the plaintiff must plead the injuries suffered. This is fine, if the plaintiff knows what those injuries are. Sometimes, the plaintiff does not know all the injuries, or is in search of a prognosis, implying that he/she cannot fully describe the injuries just yet. Section 10 implies that the plaintiff cannot issue proceedings until these things are fully known.

Then, the plaintiff must plead full particulars of “all items of special damage in respect of which the plaintiff is making a claim”. What does “all” mean? Well, it surely implies that claims not included in the pleading in the Summons are either being waived or cannot later be made.

Legal practitioners have a solution to that; plead every conceivable item of loss and, later, waive those that do not apply. Section 10 prevents this; it requires that “full” particulars be pleaded. This implies that the plaintiff cannot issue proceedings until all these losses are accrued and known, or, as mentioned, that items not pleaded cannot later be claimed.

Then, the plaintiff must plead full particulars of “the acts of the defendant constituting the said wrong and the circumstances relating to the commission of the said wrong”. Before 2004, plaintiffs had such an obligation and had to discharge it. But that obligation pertained to the trial of the action, not the issuing of proceedings. Section 10, in effect, is suggesting that, nowadays, a plaintiff cannot issue proceedings until he/she is ready to bring the case to trial. Often, a plaintiff will have need of the reports of experts before he/she can meet the obligation imposed by Section 10. The obligation implies that the plaintiff’s investigation of the event in which he/she was injured is now complete and full, before the issuing of proceedings. This is an ideal, but often impossible to achieve. Indeed, court procedures exist to allow the plaintiff to commence or continue investigations after the issue of proceedings, by the process of “discovery”, for instance. Section 10 undermines this approach to litigation. But Section 10 only applies to plaintiffs suffering personal injury; all other plaintiffs are not so burdened.

Finally, the Section, just to be sure, to be sure, demands that the plaintiff plead full particulars of “each instance of negligence by the defendant”. This is surely redundant; a plaintiff who has successfully pleaded “the acts of the defendant constituting the said wrong …” has already met this obligation.

Bear in mind that the plaintiff must overcome these obstacles within two years of the cause of action; i.e. the accident in which he/she was injured.