Category: Litigation

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Defamation Defamation Litigation

The Norwich Pharmacal Order-an Important Weapon Against Online Trolls

Have you ever been abused online? Repeatedly abuses by an online troll? At some point you may have to consider getting a Norwich Pharmacal Order.

A Norwich Pharmacal order is an equitable relief that a Court can grant to force the respondent-for example a social media website platform-to disclose certain information to the applicant. It has grown in popularity and frequency with the growth of the internet and social media platforms.

As you know many users of these platforms use fake or pseudonymous names which gives them protection to wage campaigns of abuse on their targets. You will see the widespread use of such names on Twitter and YouTube, to name but two social media sites, but Instagram and Facebook also have their fair share.

I recently wrote about such a case in the case involving Twitter and Fastway Couriers in which the High Court granted a Norwich Pharmacal order to Fastway Couriers to uncover the identity of the person operating an abusive parody account against Fastway Couriers.

The Norwich Pharmacal is generally sought against an innocent intermediary-the social media company-in order to reveal the identity of the troll who has been engaging in abusive or hate filled posts and activity.

The order will be granted when the court finds it necessary and in the interests of justice. However, there is no legislation or court rules which provides for such an order.

The origin of the order arises from the case of Norwich Pharmacal v Customs and Excise Commissioners. Norwich Pharmacal believed their patent was being abused by other traders who were importers in the UK. They wished to find the names of the importers who were infringing their intellectual copyright and sought the identities from Customs and Excise in the UK.

The Court held that an innocent party is obliged to reveal the names if they have helped the wrongdoer, even if the assistance was unintentional and inadvertent.

Norwich Pharmacal order test

The test to be applied by the High Court in Ireland will involve looking at these factors:

  1. Has a wrong been committed-is there a reasonable basis for this finding?
  2. Is the disclosure of information necessary to allow the applicant take action against the wrongdoer?
  3. Is the innocent third party able to provide the necessary information or documents?
  4. Is the order necessary in the interests of justice?

Conclusion

An application to the High Court will be necessary to obtain a Norwich Pharmacal order. Hopefully you will never have to make such an application.

Categories
Litigation

Why High Court Costs Were Awarded Against Gemma O’Doherty and John Waters in Covid-19 Constitutional Challenge

Gemma O’Doherty and John Waters applied to the High Court for leave by way of judicial review to challenge the constitutionality of certain measures taken by the State to deal with the Covid 19 pandemic. The measures being challenged were legislation and regulations enacted by the Oireachtais.

The High Court refused this application in May 2020 and held that they had failed to provide any expert evidence or facts to support their view that the laws challenged were disproportionate or unconstitutional. The High Court in that decision also noted that O’Doherty and Waters had

“no medical or scientific qualifications or expertise, relied on their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw parallel to Nazi Germany which is both absurd and offensive”.

Unsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel are not a substitute for facts,

High Court, May 2020

Read the full decision of 13th May 2020 here.

O’Doherty and Waters went back to the High Court to avoid the costs of the judicial review application being awarded against them. The grounds on which they resisted orders for costs against them included

  1. They should have been allowed to proceed on an ex parte basis and the respondents and notice parties should not have been put on notice of their application
  2. The Oireachtais did not have to be separately represented
  3. Their application was in the public interest
  4. They were entitled to a “protective costs order”

The High Court recognised that the principal ground that was contended for by O’Doherty and Waters was that they brought the proceedings “in the public interest” and they should not be penalised for having done so.

The High Court held that “this contention does not stand up to much scrutiny” and that they failed to engage with the case being made by Ireland, the Attorney General, and the Minister for Health.

The High Court determined that the issues raised by the widespread restrictions and the legislation and regulations introduced where important matters of public interest.

There is no doubt but that issues raised by the widespread restrictions imposed by the legislation and regulations in question are important matters of public interest.

However, the manner in which the applicants conducted their proceedings, their failure to consider or answer the case being made against them and to only have regard to their own opinions meant that these proceedings were very far from being in the public interest.

High Court, June 2020

For this reason Mr. Justice Meenan determined that there no grounds for the Court to depart from the general rule that “costs follow the event”. He granted the respondents (the Minister for Health, Ireland and the Attorney General) and the notice parties (Dail Eireann, Seanad Eireann and an Ceann Comhairle) their costs and dismissed the application of O’Doherty and Waters.

Read the full decision of 4th June 2020 here.

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
Negligence Personal Injury Claims

No Expert Opinion? Your Claim for Professional Negligence is Bound to Fail

If you are considering bringing legal proceedings for professional negligence the Court of Appeal has recently confirmed you will need an expert report or opinion. If you do not have such an opinion your claim is ‘bound to fail’ according to the High Court in Andrew Mangan (a minor) v Julian Dockeray and By Order Brian Denham and Mount Carmel Hospital.

In this case Mr. Mangan’s case against the defendants was dismissed by reason of the absence of expert medical evidence.

Background

Mr. Dockeray, a consultant obstetrician, had provided antenatal care to Mr. Mangan; Mr. Denham, a paediatrician, had provided neonatal care and Mount Carmel Hospital was where Mr. Mangan was born in 1995. It was at the time of his birth that Mr. Mangan had suffered various injuries including cerebral palsy.

In 2008 Mr. Mangan brought legal proceedings against Mr. Dockeray, the obstetrician. Mr. Dockeray brought an application to join Mr. Denham and Mount Carmel Hospital and this application was grounded on an affidavit of Mr. Dockeray’s solicitor. This affidavit stated that an expert opinion had been obtained by Mr. Dockeray and this expert report criticised the care provided by Mr. Denham and the hospital. This expert report was not exhibited in the solicitor’s affidavit, however, and Mr. Mangan never had sight of it.

Application to joint defendants

Mr. Mangan’s application to join the second and third defendants to his proceedings succeeded but Mr. Mangan confirmed he did not have any expert opinion or report which supported his claim against the second and third defendant; he was relying on the expert report of Mr. Dockeray’s, a report he had never seen.

The second defendant, Mr. Denham, the paediatrician and Mount Carmel hospital applied to have the proceedings against them struck out on the basis that Mr. Mangan had no expert report alleging negligence against them as required by the Rules of the Superior Courts (Order 19 Rule 28). Their argument was that the action against them had no prospect of success and was frivolous and vexatious, particularly in the absence of expert opinion against them.

Mr. Mangan was relying on the affidavit of Mr. Dockeray’s solicitor alleging negligence against Mr. Dockeray and the hospital but neither Mr. Mangan nor his legal team had seen this expert medical report.

High Court Decision

The High Court dismissed Mr. Mangan’s claim against the hospital and Mr. Dockeray for he had never made any allegations against them. Moreover, Justice Binchy found

  • Mr. Mangan’s expert report made no connection between his injuries and Mr. Dockeray and the hospital
  • Mr. Mangan could have sought more time to obtain his own expert report but had not done so
  • When a plaintiff declines to make any allegations against another party his pleadings will not disclose any reasonable cause of action, contrary to Order 19, Rule 28 of the Rules of the Superior Courts
  • It would fly in the face of logic to allow a claim against two defendants in circumstances where Mr. Mangan had made no allegations against them and he was merely relying on an affidavit of another solicitor which makes reference to a medical report but does not exhibit it in the affidavit.

Court of Appeal

Mr. Mangan appealed the decision of the High Court to the Court of Appeal and sought more time to obtain his own expert medical opinion. The Court of Appeal did not allow his appeal and decided the High Court had correctly applied the law to the facts of the case.

The Court of Appeal held that, having regard to the long timeline involved in this case, to give Mr. Mangan further time would be unfair to the hospital and the paediatrician.

Categories
Litigation Negligence

GP Defends Professional Negligence Claim About Breast Cancer Diagnosis in High Court

differential costs order

The High Court decision in Rossiter v Donlon is a useful one to look at when it comes to increasing our understanding of professional negligence, and what you need to prove to bring home such a legal action.

Background

The background to the case is that Ms. Rossiter sued Dr. Donlon for professional negligence arising from his advice and care in a consultation in which she presented with a history of an armpit lump.

Ms. Rossiter noticed a lump in her left armpit and after three months she went to Dr. Donlon. She was 32 years old at that stage in 2014. Dr. Donlon examined her left armpit and could not discern any lump. Dr. Donlon reassured her and told her to return to if the lump returned.

Ms. Rossiter attended Dr… Donlon, and other doctors, for approximately two years for the treatment of eczema but there was no further mention of the armpit lump.

In August 2016 she attended another doctor with a lump on her left breast and was diagnosed with terminal breast cancer.

Ms. Rossiter claimed the breast cancer could have been diagnosed earlier if she was referred to a Breast Clinic in 2014 by Dr. Donlon; she further claimed that Dr. Donlon had carried out an inadequate examination and had failed to carry out a breast examination in 2014.

Dr. Donlon’s evidence was that a breast examination was offered but this was declined, and she asserted that Ms. Rossiter agreed with her on the day that there was no lump present. Ms. Rossiter denied Dr. Donlon told her to return if there was a recurrence of the lump and she claimed that the lump persisted after the September 2014 consultation.

It was clear from the evidence of both parties that there were important conflicts of evidence on a number of points as to what was said at the September 2014 consultation. The Court preferred Dr. Donlon’s evidence on most heads, however, because she had made notes at the time of the consultation and these notes were preferred to the memory recall of Ms. Rossiter.

Dr. Donlon’s notes stated, “declined breast exam”. If the Court was to accept Ms. Rossiter’s evidence over the notes of Dr. Donlon it would meant that this note was a lie and added after the fact. This would be an extremely serious finding for the court to arrive at against a doctor and, furthermore, Ms. Rossiter’s legal team did not make this allegation or put this proposition to Dr. Donlon during cross-examination.

Expert medical evidence was produced by both sides as to the rate of tumour growth in an attempt to arrive at the likely size of the tumour in 2014. The evidence of Dr. Donlon’s expert witness was preferred and, on that basis, it was estimated that the size of the tumour in September 2014 would have been .6cm in size which is below the threshold size of 1 cm to have been discoverable on palpation by a GP at that time.

Negligence?

Mr. Justice Barr had to look at two questions when deciding whether Dr. Donlon was negligent or not:

  1. Should Dr. Donlon have insisted more strongly that Ms. Rossiter attend for a breast examination when it was declined?
  2. Should Dr. Donlon have arranged a review appointment at a later date?

It was decided that where both doctor and patient disagreed about the presence of a lump a further consultation should have been scheduled; however, in this case there was agreement that there was no lump and, therefore, no need to arrange a further consultation.

Mr. Justice Barr also found that even if Dr. Donlon was negligent in failing to refer Ms. Rossiter for a breast exam in 2014 this failure did not lead to any loss or injury.

He also held that, having regard to the rate of growth of the tumour from 2014 to 2016 when it was discovered, it would not have been detectable in September 2014 due to its small size.

Read the full decision here: Rossiter v Donlon [2019] IEHC 105