Jurisdiction, Limitation and the Common Pitfalls for Solicitors in Cross Border Litigation

Cross Border Litigation

The island of Ireland is in the unique position of having two entirely distinct legal systems which are broadly similar in theory but fundamentally different in practice. The common travel and economic area between Northern Ireland and the Republic of Ireland means that hundreds of thousands of people cross the border every day. Brexit has also accelerated cross border work and has led to numerous businesses opening premises in both jurisdictions or simply moving all operations to the Republic of Ireland.

The purpose of this article is to explain some of the key distinctions between each jurisdiction in the context of personal injury litigation and to discuss the merits of establishing mutually beneficial relationships between solicitor’s in Northern Ireland and the Republic of Ireland.

Jurisdiction

The key issue for solicitor’s in cross border litigation is deciding on the correct jurisdiction for issuing court proceedings. Often the appropriate jurisdiction will be clear, however, confusion often arises when the parties are based in different jurisdictions or the cause of action occurs in one jurisdiction and both parties are based in the other jurisdiction.

The Rome II Regulation (EC) No. 864/2007 governs the issue of jurisdiction and applicable law. In simple terms the Regulations state that proceedings can be issued either where an accident happens or where a defendant resides. In cases where proceedings can be issued in either jurisdiction many solicitor’s will simply issue in the jurisdiction which is most convenient to them.

For example, if an accident at work happens in the Republic of Ireland and both the plaintiff and defendant are based in Northern Ireland the first instinct of the instructed solicitor may be to simply issue proceedings in Northern Ireland.

This is a dangerous approach for solicitors to take and could potentially result in professional negligence claims against them if correct procedures are not followed. In a situation where proceedings can be issued in either jurisdiction solicitors are obliged to advise their clients on the merits of issuing in each jurisdiction and allow their client to make an informed decision.

The key consideration for clients will be that the level of damages payable in personal injury cases is much higher in the Republic of Ireland than in Northern Ireland. For this reason, we will often advise our client’s that it is more beneficial for them to proceed with their case in the Republic of Ireland.

In personal injury cases clients should be advised that proceedings can be issued in the Republic of Ireland if any of the following circumstances apply:

 

  1. If the accident occurred in the Republic of Ireland.
  2. If any one of a number of individual defendants reside in the Republic of Ireland.
  3. If any one of a number of company defendants have a registered office in the Republic of Ireland.

Limitation

Another key distinction between these jurisdictions is the Statute of Limitations. In the Republic of Ireland proceedings must be issued within two years of an accident or the date of knowledge as opposed to Northern Ireland, where the Statute of Limitations allows three years.

This creates a greater burden on solicitors to ensure cases do not become statute barred. The rules in respect of limitation in the Republic of Ireland are much more nuanced than in Northern Ireland. For example, the mandatory submission of cases to the Personal Injury Assessment Board (PIAB) causes limitation to be paused and re started. A PIAB authorisation certificate is then required before proceedings can be issued.

It is, therefore, important to ensure that the instructed solicitor is very familiar with the practice and procedure of the jurisdiction in which they are issuing proceedings. If a solicitor takes on a case which is outside of their jurisdiction and allows it to become statute barred, they will leave themselves open to a claim for professional negligence.

Solicitor Agency

Given the unique dynamic of having two separate legal systems on one island it is important that solicitor’s in both jurisdictions work together and establish relationships which are mutually beneficial.

At P.A. Duffy and Company, we provide solicitor agency services and operate a referral system with other solicitors based in both Northern Ireland and the Republic of Ireland. We are qualified in both jurisdictions and have developed an in-depth knowledge of the practice and procedure as well as the common pitfalls that solicitors encounter in both jurisdictions.



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