Irish Product Liability and Safety Update - November 2021

New rules target delay in serving defences in High Court litigation

Plaintiffs who wish to press defendants to set out their written defence early in Irish High Court litigation may now use new court rules to do so.

From 13 November 2021, defendants must serve their defences within 8 weeks of receiving a statement of claim or verified personal injuries summons.

If a defendant fails to deliver a defence on time, the plaintiff’s lawyers may serve a letter warning that in 28 days they will seek judgment against the defendant. The court can grant extra time, but defendants should be ready to justify the delay if challenged. If, after an extension of time, a defendant fails to deliver the defence, judgment is awarded by default against the defendant without a further court hearing.

Manufacturers and other producers in product liability cases should pay careful attention to the new rules and make sure they set out their reasons for seeking extra time to deliver a defence clearly in correspondence and be prepared to deliver a defence within any extended period granted by the court.

Reasons for delay

Plaintiffs often start a case with vague allegations of why a product was faulty or badly designed, or that warnings were inadequate (such as The design of the product was defective or The product information leaflet was misleading).

A reason for this may be that plaintiffs’ lawyers sometimes find it difficult to retain an expert to give detailed views on the safety of a product, taking account of the benefits and unavoidable risks of the product and the state of the art in the defendant’s industry. So they may start the litigation in the hope of getting more details later.

Also, plaintiffs’ lawyers may hope to get documents on discovery from the defendant later in the case, which will help them to justify or broaden the allegations, or make new allegations.

However, the defendant needs to know the case being made against it, so that it can serve a written defence denying or admitting each allegation. Also, a senior manager of the defendant must swear an affidavit saying that the company believes that it has reasonable grounds to defend the claim. Without adequate details of the claim, it may not be possible to do that.

Solutions

In these circumstances, the lawyers for each side may agree a standstill, to suspend the litigation until the plaintiff’s team are ready to proceed, or to withdraw the claim (if they cannot back up the claim). More usually, defence lawyers will serve a written “notice for particulars” seeking the facts underlying the allegations. For example, In what manner was the design of the product defective?  Or In what manner was the product information leaflet misleading?

Judges have criticised very lengthy notices for particulars as oppressive.  Such notices often look for detailed evidence (which is not permitted), rather than to find out in broad outline what the plaintiff alleges. So it is important that notices for particulars ask justifiable questions, or else a court may conclude that the notice for particulars does not justify delay in delivery of the defence.

The defendant may also seek early access to the plaintiff’s medical records if they can show that they and the defence experts need these to finalise the defence. The medical records could show, for example, that the plaintiff’s injuries arose from another cause.

After a defence is served, the court may order the defendant to give additional factual details in support of a defence plea, where for example a manufacturer asserts that its product complied with the state of the art. This is another reason why adequate details of the plaintiff’s allegations are important.

Comment

There may be good reason to delay service of a defence where the plaintiff's claim has been inadequately set out. Defendants’ lawyers should be proactive however, by writing to the other side where they require essential information to prepare the defence, and if necessary seek early disclosure of medical records. If the plaintiff refuses to provide these without good reason, the defendant should have good grounds to get more time to deliver its defence.

McCann FitzGerald LLP ©