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Pre-action offers to settle clinical negligence claims
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51. The Act of 2004 is amended by the insertion of the following section after section 17:
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“17A. (1) Where an offer to settle is made, before the bringing of a clinical negligence action, in respect of a claim relating to a catastrophic injury (within the meaning of Part IVB of the Act of 1961)—
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(a) the offer to settle shall specify the proportion of the amount of the offer to settle that is attributable to—
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(i) the future medical treatment of the plaintiff,
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(ii) the future care of the plaintiff,
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(iii) the provision of assistive technology or other aids and appliances associated with the medical treatment and care of the plaintiff, and
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(iv) the future loss of earnings of the plaintiff,
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and
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(b) a copy of the offer to settle shall be lodged in court by, or on behalf of, the party by which it was made.
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(2) The terms of an offer to settle shall not be communicated to the judge in the trial of a clinical negligence action until after he or she has delivered judgment in the action.
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(3) Subject to subsection (4), the court shall, when considering the making of an order as to the payment of the costs in a clinical negligence action, have regard to—
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(a) the terms of an offer to settle, and
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(b) the reasonableness of the conduct of the party by whom the offer was made in making the offer.
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(4) Where a court has made a periodic payments order (within the meaning of Part IVB of the Act of 1961) in a clinical negligence action, the court shall, when considering the making of an order as to the payment of the costs in the action, have regard to—
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(a) the terms of any offer to settle, other than those terms which relate to the matters referred to in subparagraphs (i) to (iv) of paragraph (a) of subsection (1), and
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(b) the reasonableness of the conduct of the parties to the action concerned in making any offers to settle.
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(5) In determining liability for the part of the costs of a clinical negligence action relating to the matters referred to in subparagraphs (i) to (iv) of paragraph (a) of subsection (1), the court shall have regard to—
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(a) any offers not expressed to be without prejudice or in terms having like effect, and
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(b) any offers made without prejudice save as to the issue of costs which were made by or on behalf of a party to the action after the commencement of the trial of the action, to effect a settlement of that action.
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(6) This section is in addition to and not in substitution for any rule of court providing for the payment into court of a sum of money in satisfaction of a cause of action or the making of an offer of tender of payment to the other party or parties to an action.
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(7) In this section—
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‘clinical negligence action’ has the same meaning as it has in Part 2A;
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‘offer to settle’ means an offer made by any party to a clinical negligence action to settle the claim to which the action relates in accordance with the pre-action protocol within the meaning of Part 2A.”.
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