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.
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  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  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  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.
The Court in McCarthy v Twomey  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.
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.
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.
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
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
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
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
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
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  IEHC 522.
The Court then looked at two questions:
The level of detail that needed to be included
in the Special Indorsement of Claim to be compliant with the Court rules
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
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
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.
8.2I 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.
8.3For 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.
8.4In 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.
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.
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
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  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
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 defendant in this case relied on the defence of
qualified privilege. This is provided for under the Defamation Act 2009, section
Qualified privilege arises commonly in two categories of
Where a person makes an accusation-for example of
shoplifting-and this turns out to be wrong
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
be a defence to a defamation action for the defendant to
(a) the statement was published to a person or persons
(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
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.
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.
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
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
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
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
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
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.
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
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’
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
Vouchers supplied by way of a refund for goods
or service returned to the trader
The new protections include
The gift voucher must have an expiry date no earlier
than 5 years
It cannot be insisted that the entire gift
voucher be used in one transaction
A transfer of a voucher to a third party sees
all of the rights accruing to the original purchaser transferring to the third
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.