Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 124
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Kevin Cross

Following a ruling by an expert mediator that the boy should receive €990,000, the boy applied to the court seeking to challenge the award. However, while Mr Justice Kevin Cross held that he had jurisdiction to consider the matter, he refused to the application on the basis that the mediator’s decision did not fall outside the range of what was reasonably open to him.

Background

The plaintiff, Benjamin Blackwell, has sued the HSE, the Minister for Health and GlaxoSmithKline Biologicals SA after he developed narcolepsy and cataplexy from the swine flu vaccine when he was five years old. More than 80 similar actions were taken by plaintiffs in the State and Blackwell’s case was the first to be litigated as a test case.

Narcolepsy is the sudden and unpredictable outbreak of sleeping, which could affect an individual at any time during the day, while cataplexy is the sudden collapse of muscles which could result in buckling knees and a locked jaw. The seriousness of the plaintiff’s condition was accepted by the parties.

After complex negotiations, the plaintiff and the defendants agreed a settlement in November 2020, in which the plaintiff was offered 50 percent of the value of his losses with “significant additional add on benefits.” The reduction was agreed on the basis that there was a risk that the plaintiff might fail in the action. The settlement was also available to all of the other affected plaintiffs, subject to the defendants reserving their position on issues such as the Statute of Limitations.

For assessment of the plaintiff’s case, the settlement agreement provided that the parties would enter a mediated settlement discussion to decide the value of the claim, with an expert mediator to provide a determination by which the parties would be bound. If either party was unhappy with the mediator’s decision on quantum, they could appeal to a retired judge of the Superior Courts. The parties agreed to be bound by that retired judge’s decision.

In the plaintiff’s case, the mediator Mr Hugh Mohan SC valued the compensation at €1,980,000, which was reduced to €990,000 after the reduction of 50 percent. The plaintiff was unhappy with the decision and applied to the High Court for a direction as to whether the money should be accepted.

High Court

The court first considered whether it had jurisdiction to rule on the case at this early stage in the proceedings. Although the defendants did not contest that the court had jurisdiction, it was submitted that it was undesirable for the court to make a ruling.

The court held that the settlement was highly beneficial because it provided a significant saving in court time in all the cases and that the plaintiffs would not be exposed to prohibitive legal costs. The court was also conscious that the plaintiffs each faced difficulties in proving liability for their conditions.

As such, Mr Justice Cross said that a court should be slow to interfere with the mechanisms provided for in the settlement agreement. The plaintiff had submitted that the present application was akin to a ruling under section 63 of the Civil Liability Act 1961 (as amended) but the court rejected this argument. It was held that “If a court were to treat the determination by expert mediators merely as offers made in litigation to be approved or otherwise, it would have in my view a serious and potentially detrimental effect on the success of the settlement achieved with such effort by the parties and approved of by the court.”

However, the court found that there was an ambiguity within the settlement as to whether an application needed to be made to the court. In light of the cost implications of an appeal to a retired judge and that no objection was raised by the defendants to jurisdiction, the court proceeded to hear the matter.

The court concluded that it would apply the standard of review set out in the settlement agreement which the retired judge would be bound by. This standard was whether the mediator had made a decision that fell outside the range of what was reasonably open to him.

The court then turned to the merits of the application and rejected the plaintiff’s submission that the mediator’s award was too low. The plaintiff had received (before the reduction) €350,000 for general damages, €850,000 for loss of earnings and €400,000 for future care as part of the award.

The court found that the question of loss of earnings for a minor who had never worked was much more difficult than most cases and a degree of pure speculation was going to be part of the equation. The plaintiff had argued that he should get €1,258,000 for loss of earnings and criticised the mediator for not providing reasons for his decision in the “forensic and reasoned manner of a court judgment”. However, the court held that the mediator was not writing a judgment and his determination was not arbitrary in the circumstances.

Equally, it was open to the mediator to find that the plaintiff would require a lower level of care in the future and that while a higher figure was open to the mediator, he did not make an unreasonable decision on quantum for future care.

Conclusion

The court declined to rule that the mediator’s decision fell outside the scope of what was reasonably open to him. Mr Justice Cross also commented that he would not encourage similar applications to be made in the other narcolepsy cases.