Why do I need to make sure that evidence is preserved?

Although the Injuries Resolution Board (IRB) process operates on the assumption that liability is not in dispute, either party can later reject the Board’s assessment. This means that even if the other side initially cooperates with the IRB process, they are still entitled to challenge liability in court after the assessment is issued.

If your case does proceed to court, it will be your responsibility to prove that the other party was at fault. The legal standard is the balance of probabilities, which means you must convince the judge that there is a greater than 50 per cent chance that the respondent caused your injuries.

Early evidence can make or break your case

Court proceedings may take place several years after your injury. If you fail to gather and preserve key evidence in the immediate aftermath of the accident, it may no longer be available by the time your case is heard. Missing or incomplete evidence can seriously weaken your case and may result in your claim being unsuccessful.

Taking early steps to document the scene, secure witness accounts, retain CCTV footage, and obtain expert assessments is essential to give your claim the best chance of success.

The importance of sending a written notice to the at-fault party

Notifying the Respondent

Once you have preserved the necessary evidence, your next step should be to send a written notice to the person or organisation you believe is responsible for your injury. This notice should clearly outline the nature of the alleged wrongdoing and identify the wrongdoer.

There are two key reasons for sending this letter promptly:

• Statute of Limitations – Delaying the letter could contribute to your claim becoming time-barred. For more information, refer to our article titled “How much time do I have to bring my claim?“
• Legal Obligation Under Section 8 – Section 8 of the Civil Liability and Courts Act 2004 requires plaintiffs in personal injury cases to serve a written notice of claim on each alleged wrongdoer within two months of the incident, or as soon as practicable thereafter. This letter must set out the nature of the alleged wrong.

Consequences of failing to serve a Section 8 Notice

If you fail to serve this notice without a valid reason, the court has discretion to:

• Draw adverse inferences from your failure to notify the other party, and
• In certain cases, disallow your legal costs, even if your claim is otherwise successful.

This could leave you responsible for your own legal expenses, which can be substantial.

What if you miss the two-month deadline?

Although it is important to be aware of the two-month time limit, you should not panic if you have missed it. Judges are generally understanding, especially if you were recovering from your injury or unaware of the legal obligation to send the notice.

As long as there is a genuine and reasonable explanation for the delay, it is unlikely that the court will penalise you. However, it is always safer to act promptly and to seek legal advice as soon as possible after the incident.