LITIGATION Judges must step aside from hearing a case if there is any hint of bias.

A judge is expected to be entirely impartial when hearing a case and recuse himself if there is any sign or suggestion of bias between them and a party to an action.
This principle was evident recently in a case before the Court of Appeal, where President Ryan recused himself from hearing a matter involving the property developer Sean Dunne.


The reason for this was that the judge had bought a house from Mr Dunne over 20 years ago and had once met him.
The President believed that this link, though tenuous, was enough to require him to step aside from hearing the case and adjourn it.


Multiparty Litigation in Ireland: the “test case” procedure
In Ireland, we currently have no formal procedures to allow for “class actions,” unlike other countries such as the USA.


A class action will arise in a case where there can be hundreds of plaintiffs, who are all victim of an act of ‘mass harm.’


An example of this may be when a company pollutes a water supply, which harms a large number of people.


However, in Ireland we have failed to follow the lead of other countries in adopting a formal procedure for multiparty actions. Instead, in cases where there are multiple plaintiffs, the action will usually proceed by way of what is termed the ‘test case.’


There is no legislative basis for the test case process, but it has developed into the de facto procedure to be followed by multiple litigants who share a common case or issue to be tried in Ireland.


In such circumstances one case will be selected as a ‘test’ to be tried first, while the other cases are paused until the test case has been determined.


The test case procedure has been used frequently in Ireland on a wide range of matters, including cases of financial misspelling, pyrite cases and cases taken against the State for breach of a European Directive or constitutional rights.


In order to commence proceedings and proceed by way of a test case, each claimant must institute their own individual claim and then one party will proceed to trial.
The resulting decision will become the benchmark for the ones that follow.


The test case procedure, as opposed to the multiparty action practiced in other countries, has received much criticism as being slow, expensive and a waste of resources.


A paper of recommendations was drafted by the Law Reform Commission but to date this area of law awaits reform.


Notices for Particulars: what you are entitled to and what you are not.
In any action where you are unsure of the case that the other party is going to make at trial, you may serve your opponent with a ‘Notice for Particulars.’
This is a list of questions that arise from your opponent’s legal pleadings which they are required to reply to.
Though a useful piece of artillery in your legal armoury, over time the Notice for Particulars has evolved into a tactic to frustrate an opponent by delivering pages of wide-ranging questions to illicit information and evidence one is otherwise not entitled to.
Especially in personal injuries actions, Defendants have adopted the practice of serving pages of standardised Notices for Particulars. Such tactics are considered to be oppressive and have received much judicial criticism over the years.


Here are three of the key principles that apply to Notices for Particulars:


  1. The particulars are limited to matters in the pleadings. In personal injuries actions, this means the other side can only ask you about issues raised in your Personal Injuries Summons or Defence.
  2. The particulars are only meant to clarify issues between the parties so that they know the case they have to meet. If a party knows the broad outline of the case they are to meet, further particulars will not be necessary
  3. Particulars should also not be given when the other party is seeking to find out details of the evidence that is to be relied on at trial

Examples of regular particulars asked for (but which should not be replied to) include requests for copies of documents or details of witnesses
Even though the Courts have regularly stated that such items are outside the scope of particulars, they are still regularly asked for by practitioners in personal injuries actions.


Despite this judicial criticism, this practice does not look like it will reform any time soon..

PERSONAL INJURIES Contributory Negligence Reduced Award by 20%

by Snap Websites • 27 July 2023
The plaintiff was a schoolgirl when she was involved in a road traffic accident in April 2019. In the collision she hit her head and sustained injuries but had no recollection or memory of the accident. She had not been wearing a seat belt when the accident occurred. The plaintiff’s airbag was deployed as also was the defendant's but, in his case, he had been wearing his seat belt and did not incur any injury. The case proceeded to an assessment of damages with a contributory negligence claim on account of the plaintiff not wearing a seat belt. The plaintiff suffered deep abrasions to her right temple and anterior hairline. This resulted in permanent scarring to her face and caused her considerable concern in respect of her physical appearance. The plaintiff was interested in makeup and beauty therapy and, although she successfully entered a beauty therapy course, she dropped out because of her injuries. The main scar to her face was 9cm by 4cm and was noticeable at a conversational distance. She was very self-conscious about her scars and wore heavy makeup to conceal them as much as possible. The plaintiff was also diagnosed with psychological injuries following the incident. It was considered that she had developed an adjustment disorder with depressive features at the time. She was prescribed antidepressant medication but stopped taking it after a few days. The plaintiff continued to experience soreness on the scar on her wrist after the accident. She also complained of headaches post-accident. In reviewing the evidence, the judge considered the contributory negligence caused by the plaintiff in her not wearing a seat belt. In a High Court case of O’Sullivan v. Ryan [2005] IEHC 18 the court measured that at between 10 and 25%. There was a dispute over whether the plaintiff hit her head off the side window which was smashed or the windscreen but on reviewing the expert evidence the court was satisfied that the injury was caused by the plaintiff hitting her head off the windscreen. The contributory negligence was assessed at 20%. There was some conflicting evidence on which was the dominant injury and its consequent value in injury terms. The court ruled that the dominant injury was the facial scarring. In measuring the value to be placed on the injuries the court considered a previous case involving a dancer who incurred facial scarring and who received €50,000 in damages though in that case the dancer continued in his career whereas in the case before the court, the plaintiff did not. The court ruled that the injury be valued at €60,000 for the dominant injury and other lesser injuries at €30,000 and special damages of €17,596 amounting to a total of €107,596 reduced by 20% for contributory negligence giving a net of €86,076 damages awarded. Power v Malone [2023] IEHC 366.

PERSONAL INJURIES

by Snap Websites • 20 March 2023
First Award Under New Damages Guidelines. After lengthy lobbying by insurance companies, who were charging higher premiums to cover larger PI awards in the courts, the government introduced, in April 2021, new Guidelines for the courts in their determination of their awards of damages. In a High Court case in July 2022, the judge was tasked to decide the level of damages for a plaintiff girl who was injure d following an accident but who developed Post Traumatic Stress Disorder (PTSD) for several months thereafter. The case was one of the first PI cases where the court had to decide on the damages by applying the new Guidelines. Some commentators were expecting the eventual award to be much reduced, but the actual award was higher than expected. The 14-year-old girl was struck by a car and knocked down. All parties agreed that she had suffered from psychological injuries after the accident, and these were diagnosed as PTSD. She also had some minor injuries and a small scar below her buttock. However, her main injury was PTSD, and this finding was supported by her parents and schoolteachers. She suffered from flashbacks, nightmares, panic attacks and poor attention at school resulting in a decline in her overall academic performance. She had received some professional counselling but would require more although she was progressing satisfactorily. The net issue at the hearing was the assessment of her injuries under the new Guidelines. The plaintiff maintained her injuries were somewhere between moderate and serious PTSD. The moderate type would result in an award of between €10K to € 35K while the serious version would result in a higher award between € 35k to €85K. Not surprisingly, the insurance company argued that her injury fell within the moderate category and should be valued at € 20k. The task of the court was to determine how the new Guidelines should impact on an award of damages. Importantly, it also noted that a court could depart from the Guidelines if the justice of the case requires but must set out concise reasons for doing so. While serious PTSD typically involved a disability for the foreseeable future, the moderate PTSD category envisaged that the plaintiff will have largely recovered, and any continuing effects will not be grossly disabling by the time the case comes on for hearing. The court was satisfied that the plaintiff’s PTSD fell into the moderate category but considering the negative impact on her schooling and Leaving Certificate prospects, it fixed an award at the top end of the moderate category being € 35k. The court also awarded her € 25k for her scar and soft tissue injuries which had largely settled. This brought the total sum awarded to €60k. This case illustrates how a fear of much lower court awards following the new Guidelines appears to be misplaced. Lipinski (A Minor) v Whelan [2022] IEHC 452