Businesses and organisations maybe unaware of the recent changes to section 8 of the Civil Liability and Courts Act 2004
The Department of Finance has asked that we distribute to Members the attached note on Section 8 of the Civil Liability and Courts Act 2004 (“the Act”). Some businesses and organisations may be unaware of recent changes to this section of the Act, to which the note relates.
Section 8 requires the claimant (the “plaintiff”) to service a notice in writing, stating the nature of a claim being made against a business (the “alleged wrongdoer”). Previously, such a notice had to be issued within two months of the incident occurring. However, the difficulty with this deadline was that it was not aligned with the typical one-month data protection deadline for the holding of CCTV footage. What this meant in practical terms was that if a person reported an incident more than one month after it occurred, any recording of the incident was generally unavailable. Consequently, such CCTV footage was unavailable for defence purposes in this type of scenario.
On foot of a recommendation by the Cost of Insurance Working Group (CIWG), the Act was amended so that from 28 January 2019, the time for issuing this notice has been reduced to “one month from the date of the cause of action”. This increases the likelihood that such footage will still be available, enabling a defendant either to defend the claim, or promptly to acknowledge their liability, with a view to achieving an earlier settlement and a reduction in legal costs.
In addition, a further amendment to the Act provides that the Court hearing the action “shall” rather than “may” draw such inferences from a failure to provide the letter of claim in the time prescribed as appear proper and shall, where the interests of justice so require, penalise the plaintiff as to costs. If the plaintiff does not inform the “(alleged) wrongdoer” within one month (without reasonable cause), the court shall draw inferences from the failure to do so. It can then make no order (or a reduced order) as to the payment of costs to the plaintiff.
In effect, the amendments mean that a claimant must now begin their proceedings within one month of the alleged incident, or face the risk of a financial penalty (unless there is a valid reason for the delay).