Legal Services Regulation Act 2015

• (b) any delay or other adverse consequences which may arise for the proceedings concerned as a result of the legal practitioner’s withdrawal, and

• (c) any matter which is the subject of legal professional privilege between the legal practitioner and the client.

• (3) The court may hear an application for permission under subsection (1) in camera if it considers it necessary to do so in the interests of justice.

• (4) A withdrawal by a legal practitioner from a case in contravention of subsection (1) shall be notified to the Authority by the court whose permission to withdraw from that case is required under that subsection and the Authority, on being so notified, shall investigate the matter and take any necessary action under Part 6.

216. Service of notices

216. Where a notice is required or authorised to be sent or given to a person by or under this Act, it shall be in writing and shall be addressed to the person concerned by name and shall be served on, sent or given to the person in one of the following ways:

• (a) by delivering it to the person;

• (b) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, to that address;

• (c) by sending it by post in a pre-paid registered letter or by any other form of recorded delivery to the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, to that address.

217. Regulations on movement between professions of barrister and solicitor

217. (1) Notwithstanding any other enactment, the Authority may by regulation provide that—

• (a) a barrister seeking to be admitted as a solicitor, or

• (b) a solicitor seeking to become a barrister,

be exempted from an admission requirement specified in the regulation, where the Authority is of the opinion that that admission requirement is, in the case of that barrister or solicitor, unnecessary.

• (2) Without prejudice to the generality of subsection (1), regulations under that subsection may provide that a legal practitioner referred to in paragraph (a) or (b) of that subsection be exempted from an admission requirement that he or she—

• (a) attend at a course of education or training,

• (b) sit and pass an examination, or

• (c) serve a period of apprenticeship or pupillage, or a portion of such period.

• (3) Regulations under subsection (1) may provide different exemptions in relation to different legal practitioners or classes of legal practitioner.

• (4) For the purpose of this section, an admission requirement, in the case of a legal practitioner referred to in paragraph (a) or (b) of subsection (1), is unnecessary where—

• (a) the admission requirement is in place for the purpose of ensuring that a person seeking to be admitted as a solicitor or to become a barrister, as the case may be, is in possession of particular knowledge, skill or experience, and

• (b) the legal practitioner concerned is already in possession of that knowledge, skill or experience by virtue of—

• (i) the educational qualifications and training that have previously been obtained by him or her, including those obtained in order for him or her to have become a barrister or to have been admitted as a solicitor, as the case may be, and

• (ii) the experience in the provision of legal services obtained by him or her as a practising barrister or a practising solicitor, as the case may be.

• (5) Before making regulations under subsection (1), the Authority shall consult with—

• (a) the Law Society,

• (b) the Bar Council,

• (c) the Honorable Society of King’s Inns, and

• (d) such other body or institution concerned with the provision of legal education which in the opinion of the Authority should be consulted.

• (6) The following shall ensure that the admission requirements concerned are consistent with regulations made under this section:

• (a) the Honorable Society of King’s Inns and the Bar Council, in relation to the admission requirements relating to the barristers’ profession;

• (b) the Law Society, in relation to the admission requirements relating to the solicitors’ profession;

• (c) such other body, being empowered to establish admission requirements relating to the barristers’ profession or the solicitors’ profession, as the Minister may specify by regulation.

• (7) In this section—

“admission requirements”—

• (a) in relation to the solicitors’ profession, means the requirements (including those relating to education and training) that a person is required to fulfil before he or she can be admitted as a solicitor, and

• (b) in relation to the barristers’ profession, means the requirements (including those relating to education and training) that a person is required to fulfil before he or she becomes entitled to practise as a barrister,

and, for the purpose of this definition, also includes any requirement under a Professional Code that a person undertake any training or serve a period of apprenticeship or pupillage following his or her admission as a solicitor or becoming a barrister, as the case may be.

218. Advertising of legal services

218. (1) No professional code shall operate to prevent—

• (a) a legal practitioner from advertising his or her legal services,

• (b) a legal partnership, a multi-disciplinary practice or a limited liability partnership from advertising their legal services, or

• (c) a group of legal practitioners, who share a facility, premises or cost of practice, from advertising themselves as such a group.

• (2) The Authority may make regulations in relation to the advertising of legal services, including in relation to the information that may be contained in advertisements published or caused to be published by legal practitioners in relation to legal services they provide and any areas of law to which those services relate.

• (3) Before making regulations under subsection (2), the Authority shall consult, in such manner as it considers appropriate, with—

• (a) a professional body, the members of which will be subject to the regulations when made, and

• (b) such other interested parties, including legal practitioners who are not members of a body referred to in paragraph (a) who will be subject to the regulations when made, as the Authority considers appropriate.

• (4) Regulations made under subsection (2) may not restrict the advertising of legal services unless such restriction is—

• (a) necessary for—

• (i) the protection of the independence, dignity and integrity of the legal profession, and

• (ii) an overriding reason relating to the public interest,

and

• (b) non-discriminatory and proportionate.

• (5) Without prejudice to the generality of subsection (2), regulations made under that subsection may—

• (a) specify the category or categories of legal practitioner to whom such regulations apply,

• (b) make provision in relation to advertisements that may be published or caused to be published by or on behalf of a legal practitioner, including provision in respect of their content and size,

• (c) provide for the manner in which the Authority is to determine whether any particular advertisement published or caused to be published by a legal practitioner is in contravention of this section or any regulations under this section, and

• (d) restrict the publication by or on behalf of a legal practitioner of any advertisement which in the opinion of the Authority—

• (i) is likely to bring the legal profession into disrepute,

• (ii) is in bad taste,

• (iii) reflects unfavourably on other legal practitioners,

• (iv) is false or misleading in any material respect,

• (v) is published in an inappropriate location,

• (vi) subject to subsection (7), expressly or impliedly solicits, encourages or offers any inducement to any person or group or class of persons to make claims for personal injuries or seek legal services in connection with such claims.

• (6) A legal practitioner shall not publish or cause to be published an advertisement which does not comply with regulations made under subsection (2).

• (7) Nothing in subsection (5)(d)(vi) shall be taken to authorise the Authority to impose a restriction on the inclusion in an advertisement published by or on behalf of a legal practitioner of the words “personal injuries” as part of the legal services provided by the legal practitioner.

• (8) In this section—

“advertisement” means any communication (whether oral or in written or other visual form and whether produced by electronic or other means) which is intended to publicise or otherwise promote a legal practitioner in relation to the provision by him or her of legal services, including any—

• (a) brochure, notice, circular, leaflet, poster, placard, photograph, illustration, emblem, display, stationery, directory entry, article or statement for general publication,

• (b) electronic address or any information provided by the legal practitioner that is accessible electronically,

• (c) audio or video recording, or

• (d) presentation, lecture, seminar or interview,

which is so intended but excluding a communication which is primarily intended to give information on the law;

“inappropriate location” means a hospital, clinic, doctor’s surgery, funeral home, cemetery, crematorium or other physical location of a similar character.

PART 15 Clinical Negligence Actions

219. Clinical negligence actions

219. (1) The Civil Liability and Courts Act 2004 is amended by inserting the following Part after Part 2:

“PART 2A

Clinical Negligence Actions

Interpretation of Part 2A

32A. (1) In this Part—

‘clinical negligence’ means anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death;

‘clinical negligence action’ means an action for the recovery of damages brought—

• (a) by or on behalf of a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence, and

• (b) against the health service provider alleged to have committed the act or omission giving rise to liability or any other person alleged to be liable in respect of that act or omission;

‘health service’ means—

• (a) the carrying out of a clinical investigation, diagnosis, procedure, treatment or research,

• (b) the provision of clinical advice or information, or

• (c) the provision of clinical care;

‘health service provider’ means a person whose name is on—

• (a) the register of medical practitioners,

• (b) a register maintained by the Dental Council,

• (c) a register maintained by the Optical Registration Board,

• (d) a register set up under section 13(1) of the Pharmacy Act 2007,

• (e) a register maintained under section 46 of the Nurses and Midwives Act 2011, or

• (f) a register maintained by any health and social care profession which has been designated for the purposes of the Health and Social Care Professionals Act 2005 and which the Minister has prescribed by regulations;

‘pre-action protocol’ means the pre-action protocol mentioned in section 32B.

Pre-action protocol

32B. (1) There shall be a pre-action protocol relating to clinical negligence actions.

• (2) The pre-action protocol shall include requirements that must be complied with by the parties to clinical negligence actions before such actions are brought.

• (3) The Minister shall by regulations make provision specifying the terms of the pre-action protocol.

• (4) Before making regulations under subsection (3), the Minister shall consult—

  • (a) the Minister for Health,

  • (b) the State Claims Agency,

  • (c) any such bodies involved in the regulation of persons providing legal services as the Minister considers appropriate,

  • (d) any such bodies involved in the regulation or training of persons providing health services as the Minister considers appropriate,

  • (e) any such bodies representative of the interests of patients as the Minister considers appropriate, and

  • (f) any such other bodies as the Minister considers appropriate.

• (5) The Minister shall, in making regulations under subsection (3), have regard to the desirability of—

  • (a) encouraging the early resolution of enquiries or allegations relating to possible clinical negligence,

  • (b) promoting timely communication between persons who are enquiring into or making allegations about possible clinical negligence and those whom they consider may be liable in respect of it,

  • (c) reducing the number of cases in which clinical negligence actions are brought,

  • (d) facilitating the early identification of the issues in dispute in clinical negligence actions, and

  • (e) encouraging the early settlement of clinical negligence actions.

• (6) The terms of the pre-action protocol specified by regulations under subsection (3) shall in particular include provision relating to—

  • (a) the disclosure of medical and other records relating to persons enquiring into or alleging possible clinical negligence (including charges for disclosure),

  • (b) the giving of notifications of enquiries into, and allegations of, possible clinical negligence, the acknowledgement of notifications of enquiries and the giving of responses to notifications of allegations,

  • (c) the specification of the time at or within which records shall be disclosed and notifications given and acknowledged or responded to,

  • (d) the form of, and particulars to be included with, requests for disclosure or notifications of enquiries or allegations and acknowledgements of and responses to such notifications,

  • (e) the disclosure of material relevant to allegations and responses, and

  • (f) agreements to submit issues for resolution otherwise than by a court.

  Powers of court

  32C. The court in which a clinical negligence action is brought, on hearing the action, may do any of the following:

  • (a) direct that the action shall not proceed any further until steps which are required by the pre-action protocol to have been taken by any of the parties have been taken;

  • (b) order that a party who has not complied with a requirement of the pre-action protocol pay the costs, or part of the costs, of the other party or parties (including, where appropriate, on an indemnity basis);

  • (c) if an award of damages is made in favour of the plaintiff but the plaintiff either has not complied with a requirement of the pre-action protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or greater than that awarded, order that the plaintiff shall be deprived of interest on all or part of the award or that all or part of the award shall carry interest at a lower rate than it otherwise would;

  • (d) if an award of damages is made against a defendant but the defendant either has not complied with a requirement of the pre- action protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or less than that awarded, order that the defendant pay interest on all or part of the award at a rate higher by no more than 10 percentage points than the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840.

  Apology not to constitute admission of liability or invalidate insurance

  32D. (1) An apology made in connection with an allegation of clinical negligence—

  • (a) shall not constitute an express or implied admission of fault or liability, and

  • (b) shall not, despite any provision to the contrary in any contract of insurance and despite any other enactment, invalidate or otherwise affect any insurance coverage that is, or but for the apology would be, available in respect of the matter alleged.

• (2) Despite any other enactment, evidence of an apology referred to in subsection (1) is not admissible as evidence of fault or liability of any person in any proceedings in a clinical negligence action.”.

• (2) The amendment made by subsection (1) does not apply to clinical negligence actions where the cause of action accrues before the coming into operation of that subsection.

220. Other amendments of Civil Liability and Courts Act 2004

220. (1) Section 8 of the Civil Liability and Courts Act 2004 is amended—

• (a) in subsection (1), by substituting “Subject to subsection (3), where” for “Where”, and

• (b) by inserting the following subsection after subsection (2):

• “(3) This section does not apply to a clinical negligence action within the meaning of Part 2A.”.

• (2) Section 17 of the Civil Liability and Courts Act 2004 is amended—

• (a) in subsection (1), by substituting “Subject to subsection (6A), the” for “The”, and

• (b) by inserting the following subsection after subsection (6):

• “(6A) This section does not apply to a clinical negligence action within the meaning of Part 2A if an offer to settle the claim had, before the bringing of the action, been made by any party to the action in accordance with the pre-action protocol.”.

• (3) The Civil Liability and Courts Act 2004 is amended by inserting the following section after section 17:

“Pre-action offers of settlement in clinical negligence claims

17A. (1) In a case of an action to which section 17 does not apply by virtue of subsection (6A) of that section, a copy of the offer of settlement shall be lodged in court by, or on behalf of, the party by which it was made.

• (2) The terms of the offer of settlement shall not be communicated to the judge in the trial of the clinical negligence action until after he or she has delivered judgment in the action.

• (3) The court shall, when considering the making of an order as to the payment of the costs in the action, have regard to—

  • (a) the terms of the offer of settlement, and

  • (b) the reasonableness of the conduct of the party by whom the offer was made in making the offer.

• (4) 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.”.

221. Amendments of Statute of Limitations (Amendment) Act 1991

221. (1) The Statute of Limitations (Amendment) Act 1991 is amended—

• (a) in section 3, by substituting the following subsection for subsection (1):

• “(1) An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of—

  • (a) in the case of a clinical negligence action within the meaning of Part 2A of the Civil Liability and Courts Act 2004, 3 years, or

  • (b) otherwise, 2 years,

  from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”,

• (b) in section 4(1), by substituting “the period so specified” for “2 years”,

• (c) in section 5(1), by substituting “the period specified in the said section 3 from the date when he ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period so specified” for “2 years from the date when he ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period specified in the said section 3”, and

• (d) in section 6—

• (i) in subsection (1), by substituting “the relevant period” for “2 years”, and

• (ii) by inserting the following subsection after subsection (1):

• “(1A) In subsection (1) ‘the relevant period’ means—

  • (a) in the case of a clinical negligence action within the meaning of Part 2A of the Civil Liability and Courts Act 2004, 3 years, and

  • (b) otherwise, 2 years.”.

• (2) The amendments made by subsection (1) do not have effect where the date of accrual of the cause of action, or the date of knowledge of the person concerned as respects that cause of action, is before the coming into operation of that subsection.”.

SCHEDULE 1 Principles relating to Legal Costs

Sections 150(4) and 155.

• (a) that the costs have been reasonably incurred, and

• (b) that the costs are reasonable in amount.

• (a) the complexity and novelty of the issues involved in the legal work;

• (b) the skill or specialised knowledge relevant to the matter which the legal practitioner has applied to the matter;

• (c) the time and labour that the legal practitioner has reasonably expended on the matter;

• (d) the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other matters;

• (e) the place and circumstances in which the matter was transacted;

• (f) the number, importance and complexity of the documents that the legal practitioner was required to draft, prepare or examine;

• (g) where money, property or an interest in property is involved, the amount of the money, or the value of the property or the interest in the property concerned;

• (h) whether or not there is an agreement to limit the liability of the legal practitioner pursuant to section 48;

• (i) whether or not the legal practitioner necessarily undertook research or investigative work and, if so, the timescale within which such work was required to be completed;

• (j) the use and costs of expert witnesses or other expertise engaged by the legal practitioner and whether such costs were necessary and reasonable.

SCHEDULE 2 Enactments Repealed

Section 5.