The High Court ruled that formal settlement offers under section 17 of the Civil Liability and Courts Act 2004 must be made during the prescribed period, ending 14 days after service of notice of trial. It rejected the plaintiff’s argument that an offer could be served at any time up to or during trial.
The ruling arose from a medical negligence action brought by Sheila O’Donnell against Gerard McEntee and Sean Tierney. The claim concerns injuries allegedly sustained during an elective laparoscopic operation at the Mater Private Hospital on 25 April 2005. The judgment records the injuries as alleged; it did not determine the underlying negligence claim.
The plaintiff had served notice of trial on 26 September 2008, but neither side had served a section 17 offer. The defendants applied for an order requiring the plaintiff to serve an offer and lodge a copy in court. The plaintiff’s solicitors argued that offers should be exchanged simultaneously and said they could not quantify the claim until they received an outstanding care report. The defendants argued that the plaintiff should make the first offer and that the time for making it had passed.
Mr Justice Kearns held that the Act and regulations required offers to be made within the prescribed period. He said the fact that a copy need not be lodged in court within a specified timeframe did not leave parties free to make offers up to trial. He also said the court could be asked to direct compliance with section 17.
The judgment did not resolve which party must make the first offer. The judge found no statutory requirement for simultaneous offers, noting that they could produce an absurd result if both were accepted. But he said the legislation did not identify who should go first, so either party could make its offer at a chosen time within the prescribed period. He described the possibility of simultaneous offers as a difficulty arising from poor drafting.
The court granted the order sought by the defendants. The judgment addressed compliance with the settlement-offer requirements; it did not decide liability or damages in the medical negligence action.