Civil liability & courts act 2004: some thoughts on practicalities

• Author: David Holland
• Position: Senior Counsel
• Pages: 43-59

2006] Civil Liability and Courts Act 2004 43

CIVIL LIABILITY & COURTS ACT 2004:

SOME THOUGHTS ON PRACTICALITIES

DAVID HOLLAND*

INTRODUCTION

It strikes me that this is an Act in which there is an

identifiable objective but which creates no system to achieve that

objective. The objectives are to deal with fraudulent and

exaggerated claims and to reduce costs. However the means

consists of a series of relatively discrete procedural measures –

some with little connection to others. It reads like the product of a

brainstorming session seeking “good ideas”. Accordingly it is

difficult to analyse the Act or its likely effect in a systematic way.

One is left to consider its individual parts rather than the whole.

The result for this paper is, I am afraid, a somewhat disjointed

narrative and a fairly arbitrary choice of topics for discussion.

I will consider four topics; court appointed experts;

dismissal of fraudulent claims; mediation and, briefly, the

exclusion of witnesses from the courtroom. For ease of reference,

at the opening of each topic I set out an edited version of the

relevant section.

SECTION 20: EXPERT EVIDENCE

20.—(1) In a personal injuries action, the court

may appoint such approved persons as it

considers appropriate to carry out investigations

into, and give expert evidence in relation to, such

matters as the court directs.

(2) A party in a personal injuries action shall

cooperate with a person appointed under this

section and shall, in particular, provide the

person with—

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* Senior Counsel. This article is based on a paper delivered at a conference

entitled ‘Civil Liability and the Courts Act 2004’, University College Cork, 22

November 2005.

Judicial Studies Institute Journal [6:1

44

(a) (i) any report or other document

prepared by the party, or

(ii) any report or other document

prepared on behalf of the party

concerned, for the purposes of or in

contemplation of the personal injuries

action,

and

(b) any document or information used or

referred to for the purpose of preparing the

report.

(3) The costs incurred in the appointment of,

and carrying out of an investigation by, a person

appointed under this section shall be paid by

such party to the personal injuries action

concerned as the court hearing the action shall

direct.

(4) A party in a personal injuries action shall

be entitled to cross-examine a person appointed

under this section in relation to any matter that

he or she was appointed to investigate and give

expert evidence on.

(5) The President of the High Court in

consultation with the President of the Circuit

Court and the President of the District Court

shall approve such persons as he or she considers

appropriate for the purposes of this section, and a

person so approved is in this section referred to

as an "approved person”.

I should point out that the appointment of court experts is

not novel and precedent does not suggest that much use will be

made of them. Indeed in the United Kingdom, as early as 1904

Lord McNaughton thought the court inherently had such powers.1

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1Colls v. Home And Colonial Stores, Limited (H.L.(E.)) 1904 AC 179 at 192: