Civil liability & courts act 2004: some thoughts on practicalities

AuthorDavid Holland
PositionSenior Counsel
2006] Civil Liability and Courts Act 2004 43
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.
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—
* 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
(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
(b) any document or information used or
referred to for the purpose of preparing the
(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
(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
1Colls v. Home And Colonial Stores, Limited (H.L.(E.)) 1904 AC 179 at 192:

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