Categories
Negligence Personal Injury Claims

Trends in Personal Injury Law in Ireland in 2019

There has been a vigorous debate in Ireland over the last 12 months or so about insurance, the cost of insurance, personal injury claims, bogus claims, excessive awards from the Courts, small businesses struggling to afford rising insurance premiums, and so on.

The Courts appear to be showing a greater enthusiasm to scrutinise personal injury cases. For example the awards made by the High Court in 2018 were down by 29%, according to the Courts Service annual report for 2018.

Having said that Circuit Court awards for the same time period-2018-increased from an average of €18,488 to €19,304 and the PIAB report for the first 6 months of 2018 showed a level of award which was 4.4 times that of awards for similar injuries in England and Wales.

In 2019 the Courts appear to have shown a greater awareness of the plaintiff’s responsibility for his own safety. For example, in Reilly v Mangan [2019] IEHC 91, the plaintiff was held responsible for his own injuries when he was injured by a taxi who drove over his ankle when he had been drunk and involved in a fight on a busy street.

The Court of Appeal dismissed the Plaintiff’s claim in White v Doherty & Anor [2019] IECA 295. The plaintiff had suffered a trip and fall injury in a caravan park but the High Court and Court of Appeal both found that users would be expected to take care in such a park for loose or embedded stones. 

In Keegan v Sligo County Council [2019] IECA 245 the Court of Appeal sent the case back to the High Court because the High Court had not had regard for whether the plaintiff’s alcohol consumption was a factor in his accident.

In Greene v Dunnes Stores [2019] IECA 115 and Kevin Keegan (Amended by the Order of the Court to Kevin Duke) v Dunnes Stores the Court of Appeal held that employees have responsibilities for their own welfare and safety. In the Greene case the Court of Appeal upheld Dunnes Stores appeal and held that the employer did not have an absolute duty to ensure the safety of the worker and dismissed the claim.

The Court in McCarthy v Twomey [2019] IEHC 719 accepted that the defendant had been in breach of his statutory duty to the plaintiff in failing to appoint a project supervisor and failing to have a health and safety plan for work on site. However, the court also held that that breach did not cause the accident of the plaintiff.

Takeaway

  1. The Plaintiff needs to prove negligence in a personal injury case, not merely that he has suffered an injury and Courts appear to be taken a firmer line in ensuring the Plaintiff discharges this burden of proof.
  2. An employer does not have an absolute duty to ensure the safety of the worker and the spectre of “strict liability” is not accepted by the Courts.
Categories
Debt Problems | Bankruptcy

Summary Judgment Case-Supreme Court Decides Insufficient Details of How Debt Was Calculated

A Supreme Court decision of November 2019 provides some hope for anyone facing a summary summons action against them to have a debt judgment awarded.

The case is Bank of Ireland Mortgage Bank and Joseph O’Malley and involved a vitally important decision of the Supreme Court as to the level of detail the lender must provide in setting out its claim in the Summary Summons.

This case was Mr O’Malley’s appeal against the decision of the High Court to grant judgment against him in the sum of €221,795.53, together with the costs of the proceedings. Mr O’Malley appealed to the Supreme Court.

Background

Mr O’Malley had borrowed €225,000 in 2008 but experienced financial difficulty soon after. It was not disputed that Mr O’Malley received the money from the bank.

A summary summons was issued on behalf of the bank and the summons stated that he had neglected to pay the entire sum due of €221,795.53.

The bank issued a motion seeking judgment and the case came before the High Court. Mr O’Malley’s defence was that the pleadings of the Bank of Ireland in the case were defective insofar as the Bank had failed to provide sufficient details as to how the figure of €221,795.53 was arrived at. Mr O’Malley argued that he should have been able to see any bank surcharges being pursued and any penalties. He had sought a detailed breakdown from the bank and argued that he was entitled to a calculation from the bank showing how it arrived at the figure claimed and the bank had simply furnished a statement of account.

The High Court granted judgment against Mr O’Malley, however on the basis that the statement of account was sufficient, notwithstanding the recognition that the bank had not particularised principal and interest in the amount claimed. Mr O’Malley appealed this decision to the Supreme Court.

The Supreme Court

The Supreme Court first recognised the general principle and test in a summary judgment case as follows:

“the fundamental questions to be posed on an application such as this remain: is it “very clear” that the defendant has no case? Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant’s affidavits fail to disclose even an arguable defence?”

The Supreme Court recognised that a dispute had emerged in this O’Malley case as to whether the claim was sufficiently particularised in the summary summons, in accordance with the rules of the superior courts.

The court noted that the obligation was to provide sufficient particulars in a summary claim to ensure the litigants know the case they have to meet.

Mr O’Malley’s case was that there was confusion and uncertainty on his part as to his liability in respect of the calculation of monies owed and that the method of calculating the principal and interest must be clear for the plaintiff to discharge the burden of proof.

The bank argued that the interest rate applied would be easy to calculate by any competent professional by reference to the statement of account furnished.

Mr O’Malley, in support of his case, relied on Allied Irish Banks v The George Limited (High Court, 21 July 1975) and Allied Irish Banks v Marino Motor Works Limited [2017] IEHC 522.

The Court then looked at two questions:

  1. The level of detail that needed to be included in the Special Indorsement of Claim to be compliant with the Court rules
  2. The evidence which needs to be put forward to justify the grant of a judgment on a summary basis within the confines of a motion for judgment

“In my view, it is appropriate to start by going back to the underlying rationale for the requirement as to detail.  Order 4, r. 4 simply requires that “all necessary particulars” should be stated.  What particulars are “necessary” is the real question.  But the rationale goes back at least 140 years, to the passage from the judgment of Cockburn C.J. in Walker v. Hicks, already cited above.  The defendant to a summons is entitled to have sufficient particulars to enable him “to satisfy his mind whether he ought to pay or resist”.

The Court notes that the special indorsement of claim sets out the terms of the loan, the fact that it was accepted and the monies were drawn down, and the Mr O’Malley had failed to repay the monies demanded. However, no detail was given as to how the sum of €221,795.53 was calculated. The only evidence of this was contained in the Statement of Account. That statement of account, however, did not indicate what interest rate was being applied from time to time. Also, there was no indication of how the closing balance of €221,795.53 was calculated.

But it does not seem to me to be too much to ask that a financial institution, availing of the benefit of a summary judgment procedure, should specify, both in the special indorsement of claim and in the evidence presented, at least some straightforward account of how the amount said to be due is calculated and whether it includes surcharges and/or penalties as well as interest.  Indeed, if it really is as simple as counsel suggested, then I cannot see any reason why Bank of Ireland should not have set out those calculations.  A person confronted with a claim or a court confronted with a question of whether there is prima facie evidence for that claim is entitled to at least enough detail to know the basis on which the sum claimed is calculated.  The defendant is entitled to that information to decide whether there is any point in pursuing a defence or, indeed, potentially expending monies on procuring professional advice in that regard.  The court is entitled to that information to enable it to form an assessment as to whether there is sufficient evidence to say that the debt has been established on a prima facie basis.  Neither the defendant nor the court should be required to infer the methodology used, unless that methodology would be obvious to a reasonable person or is actually described in the relevant documentation placed before the court.

I would, therefore, conclude that there was insufficient evidence before the High Court to justify determining that Bank of Ireland had discharged the initial onus on it to produce prima facie evidence of its debt.  That quite a significant amount of money was likely to have been due can hardly be doubted, but a party claiming a liquidated sum gets the benefit of the summary procedure precisely because it is said that a specified amount of money is due.  In those circumstances, it is not unreasonable to require the plaintiff to show some basis to explain the calculation and justify, on a prima facie basis, the sum claimed

Decision

The Supreme Court then decided, in the interests of the case, to remit the case back to the High Court and the Bank could then apply to amend the special indorsement of claim to include such details as they may think appropriate in the light of this judgment and to “tender such further evidence as may be appropriate to fill the evidential gap identified”. It will then be a matter for the High Court Judge dealing with those applications.

The conclusions of the Supreme Court judgment are as follows:

Conclusions

8.1 For the reasons analysed earlier in this judgment, I would conclude that the special indorsement of claim in this case contains insufficient details of how the sum claimed is calculated so as to meet the requirements of O.4, r.4 of the Rules of the Superior Courts to the effect that all necessary particulars be provided.  The information is insufficient to allow, as the jurisprudence requires, a defendant served with a summary summons in that form to know whether they should concede or dispute the claim.  In so holding, I have indicated that, in my view, it is possible to rely on documentation available to a defendant (such as bank statements or statements of account) for the purposes of providing sufficient particulars in a special indorsement of claim, but only where the document or documents in question are incorporated by reference into the text of the endorsement.  No such incorporation occurred in this case and I am, therefore, of the view that, even if the Statement of Account provided sufficient particularisation of the claim, the special indorsement of claim would nonetheless be defective because that document is not referred to.  

8.2 I have also set out the reasons why I consider that Mr. O’Malley is entitled to put forward arguments based on what was said to be a lack of evidence sufficient to warrant the grant of judgment against him.  I have indicated the reasons why I consider that it is necessary for a financial institution suing for a liquidated sum said to be due on foot of a loan to at least put before the court a simple account of the basis on which it is said that the precise amount claimed is due.  That obligation is prior to and independent of the obligation of a defendant to put forward a positive defence.  In other words, the plaintiff must establish the liquidated debt on a prima facie basis before it is necessary for the defendant to establish any defence which meets the threshold for plenary hearing. 

8.3 For the reasons also set out earlier in this judgment, I would hold that there was insufficient detail in the evidence submitted to provide the Court with an ability to assess whether the precise claim to the debt alleged had been established on such a prima facie basis.  In my view, the observations in the summary judgment jurisprudence, which indicate that a defendant should not be given leave to defend if the basis put forward for resisting the plaintiff’s claim amounts to mere assertion, cut both ways.  A plaintiff, in order that a prima facie claim to the precise debt can be established, must do more than merely assert.  While the basis for there being a claim in general terms was fully set out by the Bank, it does not seem to me that the evidence as to why the precise sum claimed was said to be due amounted to anything much more than assertion.  In particular, it is not clear as to what calculation led to the assertion that the sum claimed was the precise amount due, nor as to the amount of capital and interest and whether the total included surcharges and/or penalties. 

8.4 In those circumstances, I would allow the appeal and remit the matter back to the High Court, subject to the comments contained in the “Consequences” section of this judgment as to how the matter should proceed from then on.

You can read the full Supreme Court Judgment in Bank of Ireland Mortgage Bank and Joseph O’Malley here.

Conclusion

The good news for Mr O’Malley is that he has successfully prevented this application for summary judgment against him by the lender. However, the case has been sent back to the High Court to decide how the matter is to proceed.

Categories
Defamation

High Court Awards €500 for Defamation in Luas Ticket Case

A defamation case involving a graduate of Maynooth University and the Luas service is an instructive one to take a look at when it comes to considering defamation law in Ireland.

The background to the case involved Mr Diop, a “coloured gentleman” according to the High Court, boarding the Luas transport service with a valid ticket. Two security guards boarded the tram and went to the plaintiff and his brother and demanded to see their tickets.

The plaintiff accused the security guards of “slightly racially profiling”.

One of the guards ordered the plaintiff and his brother to leave the tram; however, the other guard quickly told them to remain on the tram and the plaintiff and his brother travelled on to their destination. Mr Diop then attempted to submit a complaint but the Luas office was closed.

The plaintiff then brought defamation proceedings against the company operating the Luas on the basis that the demand to produce tickets, certain hand gestures by the security guards, and a verbal exchange in which the plaintiff was ordered to leave the carriage were defamatory because other passengers would have concluded that they did not have valid tickets or had acted in a way which would justify their removal from the Luas.

The security guards denied that they had engaged in racial profiling and asserted their right to demand production of tickets and denied that the plaintiff and his brother were singled out.

Findings of the High Court

The High Court reviewed the exchange between the parties and had the benefit of body cameras which recorded the exchange and CCTV. It noted a conflict of evidence between what the security guards related and the plaintiff’s version of events.

However, the Court must look at the entirety of the transaction and exchange between the parties to decide whether the plaintiff was defamed or not. In Griffin v Sunday Newspapers [2011] IEHC 331 it was held that

“Thus it follows that a plaintiff cannot select an isolated passage or sentence in an article and complain of that alone if other parts of the article throw a different light on that passage. The real test is whether the result of the whole is calculated to injure the plaintiff’s character.”

The Court decided in this case that asking for the production of the tickets was not, of itself, defamatory. It also held that the plaintiff had not acted in a manner that was obstructive or abusive to anyone. For this reason, there was no reason for one of the security guards to ask him to leave the Luas tram. He had a contractual right to stay, having purchased a ticket, provided he did not misbehave.

The Court held that one of the security guards had, by reason of his hand gestures and asking the plaintiff to step off the Luas, defamed the plaintiff.

Qualified privilege

The defendant in this case relied on the defence of qualified privilege. This is provided for under the Defamation Act 2009, section 18.

Qualified privilege arises commonly in two categories of situations:

  1. Where a person makes an accusation-for example of shoplifting-and this turns out to be wrong
  2. Where a person makes a complaint to another person about somebody, thinking that other person is the correct individual to make the complaint to, and that person is not the correct person to complain to

Section 18 of the Defamation Act provides, inter alia,

be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.

The Court decided that the initial action of asking for the tickets to be produced was entitled to the qualified privilege defence. However, once it was established the plaintiff had a valid ticket qualified privilege could not be relied upon.

The Court noted in this case that the instruction to leave the train by one security guard was countermanded quickly by the other guard; in fact, the plaintiff and his brother had not even stood up from their seats.

The court held, therefore, that there was a momentary breach of contract and defamation, but this was almost immediately expunged by the other guard saying that they could stay on the tram. For this reason, the award of damages was only a nominal sum as it would be unjustified and unwarranted to make a substantial award of damages, having regard to section 31 of the Defamation Act 2009.

The Plaintiff was awarded €500 in nominal damages to reflect the momentary, fleeting defamation.

The Court also held that the plaintiff and his brother were most impressive witnesses and were treated badly and unfairly. However, the Court held that this case was not about unfairness but purely about defamation.

You can read the entire case : Leon Diop and Transdev Dublin Light Rail & STT Risk Management Limited.

Categories
Business and Company Law Property Law Start Your Own Business

Agreement for Lease Versus the Lease Itself-What’s the Difference or Purpose?

Are you considering taking a commercial lease and you are being asked to sign an “agreement for lease” first?

Wondering what’s the difference? Or what is the significance, if any? Let’s take a look.

Lease

A lease sets out the terms and conditions under which a lessee will occupy a premises on an exclusive basis. The lease will contain the term, the rent, and other terms by which the lessee will enjoy possession of the premises.

Agreement for lease

An agreement for lease on the other hand is a binding contract to grant a lease in the future.

Sometimes an agreement will only bind one of the parties-for example the lessee may have an option to renew a lease at the expiry of the existing term.

The big difference between an agreement for a lease and the lease is the tenant will have entered into possession and occupation if it is a lease he has executed.

Why enter into an agreement for a lease?

There is a number of reasons, the most common of which is the property cannot be handed over to the lessee yet. This may be where a property is being constructed or it may be where the property is currently occupied by an existing tenant.

Or it may be where significant refurbishment or remedial work, or a costly fitout needs to be carried out on the property before the lessee will enter into occupation. If you were the landlord, you would want some comfort that the money you will spend will not be wasted by your proposed tenant changing his mind.

The agreement for lease is a binding contract, so the change of mind problem should not arise.

An agreement for a lease might also arise where all the terms and conditions of the lease have not yet been agreed or where the proposed lessor has not yet acquired title to the property.

All these circumstances require an agreement for lease as it is not yet possible to grant a lease and hand over vacant possession to the lessee.

Where the reason for an agreement for a lease is where major refurbishment of an existing property is required, or where a building must be constructed, important factors to consider include:

  • Fitout works and defect rectification periods
  • When practical completion will occur
  • What are the handover provisions
  • What warranties will be given
  • Is security required-for example a bond or bank guarantee

You will note, therefore, that an agreement for a lease is similar to a new build of a residential house contract, save for the agreement for lease is between a landlord and tenant.

The terms negotiated and agreed upon in the agreement for a lease should make provision for the completion of the works in a timely and satisfactory manner. If this does not occur there should be compensation to the proposed lessee.

An architect or engineer should also be engaged to check that the proposed work is satisfactory and complies with planning permission and any applicable building or statutory regulations.

Practical completion

When practical completion is arrived at the building should be ready to occupy.

At this point the date of the lease should be agreed, the bank guarantee (if agreed) should be provided by the lessee, any period during which rectifications should be carried out should be used to ensure rectifications are carried out, even though some minor works may still be outstanding.

Categories
Consumer Rights

New Gift Voucher Legal Protections from 2nd December 2019-Minimum Expiry Period of 5 Years

The law regarding gift vouchers changed from 2nd December 2019, thanks to the new Consumer Protection (Gift Vouchers) Act 2019 Act.

This act introduces welcome changes in relation to expiry dates and outstanding balances.

The Act came into force from 2nd December 2019 and relates to gift vouchers only.

The voucher must have been purchased after 2nd December 2019 and there are certain types of products which are not covered:

  • One4All vouchers and other ‘electronic money’ products
  • Groupon vouchers and other vouchers which are for a specific product or service from a specific trader on a specific date or timeframe not exceeding 3 months
  • Vouchers offered as part of a customer loyalty scheme
  • Vouchers supplied by way of a refund for goods or service returned to the trader

New Protections

The new protections include

  1. The gift voucher must have an expiry date no earlier than 5 years
  2. It cannot be insisted that the entire gift voucher be used in one transaction
  3. A transfer of a voucher to a third party sees all of the rights accruing to the original purchaser transferring to the third party
  4. No limit on the number of vouchers in a single transaction is permitted

Any terms and conditions which a trader seeks to impose, and which attempts to trump the rights afforded by the act are of no effect. Moreover, traders can face criminal prosecutions, summarily and on indictment, for breaches of the Consumer Protection (Gift Vouchers) Act 2019 Act.

You can find some useful links on the Department of Business, Enterprise and Innovation website here.