Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 456
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Kevin Cross

Mr Justice Kevin Cross held that it was a “universal practice” in personal injuries litigation that a court would accept the agreement between parties as to the determination of liability for the purposes of the RBA.

The judgment was delivered in response to a previous ex tempore decision of Mr Justice Michael Twomey who had held that a court could not make a consent order for the amount of recoverable benefits to be paid. In the present judgment, Mr Justice Cross stated that “it is not the function of a judge to cause problems where none exist”.

Background

Under section 343R of the Social Welfare (Consolidation) Act 2005, a system of recoverable benefits was set up where social welfare payments could be repaid to the State by a tortfeasor liable for a personal injury. In other words, if €10,000 was paid in benefits to an injured party prior to litigation, then that money would have to be borne by the tortfeasor.

For settled cases in which liability was not fully apportioned to the tortfeasor, it was usual for the parties to ask the court for an order that liability be apportioned on (for example) a 50/50 basis for the purpose of the RBA scheme. This was generally granted by the courts without issue.

However, in an academic article published in the Irish Judicial Studies Journal, Mr Justice David Keane questioned what the proper approach was to the apportionment of the RBA in settled cases which had been struck out. He stated that this issue had never been judicial determined.

Arising from this, Mr Justice Twomey made an ex tempore judgment in two cases (Aileen Condon plaintiff and the Health Service Executive [2015] 10070 P and Monika Szwasc plaintiff and Hanford Commercials Ltd trading as Maldron Hotel Wexford [2018] 9268). In that judgment, he held that a court could not make a consent order for the apportionment of the RBA without a full hearing of the case. It was held that a consent order compromising liability could prejudice the financial position of the Minister and taxpayer and, accordingly, the Minister’s consent was required for an order to be made.

Further, Mr Justice Twomey held that the reference to “court order” in section 343R meant an order after a full consideration of the evidence by a judge rather than a consent order.

High Court

In his judgment, Mr Justice Cross delivered a strong criticism of the position adopted by Mr Justice Twomey. He began by stating that Mr Justice Keane was incorrect in his article, noting that a judicial determination was made in the vast majority of settled cases as to the appropriateness of applying section 343R to settled cases. While there were no written judgments, it was the “universal practice” of the courts to make determinations of liability on consent.

The court therefore held that it was “unfortunate” that this universal practice had apparently not been brought to the attention of Mr Justice Twomey, who was under the “mistaken impression that some judges had different opinions” on the issue.

The court stated that section 343R did not give any limitation on the kind of court order that could be made. The court said that consent orders were no less valid in status than court orders from fully fought cases. If the Oireachtas intended to differentiate consent orders from other orders, it would have expressly done so, the court said.

The court held that it was possible for a judge, of their own motion, to refuse to accept the word of counsel or solicitors when it came to making a consent order. However, this would be an “alarming conclusion as to the honesty and integrity” of lawyers which had never previously been experienced by the judge.

Mr Justice Cross also rejected the point that it was improper for any consent order to be made without the input of the Minister. The court noted that, even in fully contested cases, the views of the Minister were never sought. If Mr Justice Twomey was correct in his judgment, then the Minister would have to be joined to all personal injuries cases in which section 343R was relevant.

The Act did not create a right for the Minister to be a notice party in proceedings and the section was merely “a niche administrative mechanism to reimburse the Minister for certain payments that have been made to victims of tort”.

Further, the court noted that if the logic of Mr Justice Twomey was followed, then the Minister would have to engage solicitor and counsel to supervise the personal injuries list and ensure that no fraud was being perpetrated on the RBA scheme. This was described as “absurd”.

The effect of Mr Justice Twomey’s judgment was that the RBA may have to be determined by a full hearing even in settled cases. The court noted that 90 percent of cases settled, but that there would be no point in doing this if a judge was still required to embark on an expedition to determine the appropriate apportionment of the RBA. This would have huge consequences for the use of court time and legal costs.

The court held that, since a consent order was as good as any other order, an agreement between parties as to the apportionment of the RBA should be respected by a judge. There was a general presumption against fraud in litigation and there was “absolutely no evidence for it” in the personal injuries list. Absent compelling reasons, a judge would be “unwise” to take the “extraordinary step” embarking upon a hearing of settled actions to determine the RBA.

Conclusion

The court held that consent orders which made apportionments of liability for the purposes of the RBA were valid.