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Practitioners should note that the above Statutory Instrument was signed into law on the 14^th October, 1998 with retrospective effect from the 1^st September, 1997. The previous Rules, S.I. 348/97 and S.I. 471/97, stand revoked from the 14^th day of October, 1998.

The following is a brief outline of all the essential requirements proposed under the new Rules. However, practitioners are strongly urged to obtain S.I. 391/98, to read the full text and to fully familiarise themselves with the new requirements.

SI 391/98 applies to :

• All claims for damages for personal injuries with the exception of those to which Section 1(3) of the Courts Act, 1988 applies in respect of which trial by jury is available;

• All parties to the action - including Plaintiff or co-Plaintiff; Defendant or co- Defendant; third party; counterclaimant or notice party;

• All reports or statements from accountants, actuaries, architects, dentists, doctors, engineers, occupational therapists, psychologists, psychiatrists, scientists or any other expert whatsoever intended to be called to give evidence in relation to an issue in an action - and containing the substance of the evidence to be adduced ;

• All maps, drawings, photographs, graphs, charts, calculations or other like matter referred to in any such report;

• A copy report, statement or letter from such an expert where the original has been concealed, destroyed or mislaid;

• All proceedings instituted on or after the 1^st September, 1997;

• Any report or statement coming into existence on or after the 1^st September, 1997 for the purposes of any proceedings (instituted on or after that date).

The disclosure process must be activated by the Plaintiff who must produce a schedule listing all reports from experts intended to be relied upon, within one month of the service of the Notice of Trial or within such further time as may be agreed by the parties or permitted by the Court. The Defendant or any other party must, within seven days of receipt of the Plaintiff's schedule, produce his own schedule, listing all reports from expert witnesses intended to be called.

Within seven days of the receipt of the Defendant's schedule, the parties shall have exchanged copies of the reports listed.

Additional requirements :

S.I. 391/98 is not confined to the disclosure of expert reports and statements. In addition it obliges the parties to exchange with each other the following :-

• Names and address of all witnesses intended to be called to give evidence as to facts;

• A statement of all special damages with vouchers or statements from witnesses by whose evidence such loss would be proved;

• A written statement from the Department of Social Welfare regarding payments made to the Plaintiff subsequent to an accident or an authority from the Plaintiff to enable the Defendant/his solicitor apply for such information;

The foregoing information must be furnished within one month of the service of the Notice of Trial or within such further time as may be agreed by the parties or allowed by the Court.

Nothing to Exchange :

Where a party certifies in writing that no report exists which requires to be exchanged, then the other parties shall, on the expiry of the time fixed, agreed or permitted, deliver any report (intended to be relied upon) to all other parties to the proceedings.

Post initial Exchange :

Reports obtained after compliance with the new Rules must be delivered forthwith to the other party or parties. Service shall be effected by ordinary prepaid post.

Withdrawal :

A report or statement may be withdrawn by letter in writing.

• The party who alleges that another party has failed to comply with his or her disclosure requirements may apply by Motion on Notice to the court for directions in relation to any such alleged default. The court may direct compliance or make such other order as it deems fit including an order prohibiting the defaulting party from adducing such evidence or striking out the Defence.

• If non-compliance is discovered during the trial, the Court may prohibit the adduction of evidence to which such non-compliance relates or adjourn on terms or make such other order as appears just.

• Actions transferred from the Circuit to High Court require the parties within one month of the Order of adoption, to exchange a schedule of reports and thereafter the provisions of Rule 46(1) apply mutatis mutandis.

Mutuality of Disclosure - not admissibility :

While parties are statutorily obliged to exchange reports and statements to which the Rules refer, this does not mean that the other party must accept them without formal proof. Mutual disclosure is not automatic admission.

With the advent of these Rules practitioners are advised to seek Counsel's Advices and directions on proofs before serving Notice of Trial.