About this case:

• Citation:
  [2023] IEHC 322
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Mark Heslin

Delivering judgment in the case, Mr Justice Mark Heslin held that it would be disproportionate and contrary to the interests of justice to dismiss the entire claim. Rather, the plaintiff was allowed to proceed with the non-special damages portion of the claim and the court allowed the plaintiff to withdraw the special damages claim.

However, there were cost implications for the plaintiff in withdrawing the claim. She was required to pay the costs of the motion and the defendant’s costs of defending the special damages claim with no stay.

Background

The plaintiff issued personal injuries proceedings against the defendants alleging that they were guilty of negligence when she fell on the defendants’ patio steps. The plaintiff sought general damages and also sought special damages. The special damages were itemised as medical expenses, travelling expenses, PIAB expenses and loss of earnings.

With the exception of PIAB expenses, the plaintiff did not provide figures for her special damages. The defendants raised a notice for particulars in January 2018 seeking vouching documentation of the plaintiff’s loss of earnings pursuant to section 11(2) of the Civil Liability and Courts Act 2004. The defendants also requested vouching documents for all special damages claimed.

These particulars were not provided and the defendants issued a motion seeking replies to particulars. In November 2018, the High Court made an order on consent to provide the requested particulars within six weeks.

Replies to particulars were furnished in June 2019 which stated, inter alia, that special damages were being vouched and details would be forwarded in due course. In September 2020, the defendants outlined that the plaintiff had still not provided details or vouching documentation for her special damages claim.

In February 2021, the defendants issued a motion to strike out the plaintiff’s claim for failing to provide proper particulars. The matter came before the High Court in June 2021 where, owing to a diary error, the plaintiff’s lawyers did not attend. Accordingly, the court made an order that the claim stood dismissed unless the plaintiff complied with the November 2018 order within eight weeks.

Five days before the expiry of the eight-week period, the plaintiff’s solicitor outlined in correspondence that the plaintiff was only maintaining a claim for loss of earning for 12 weeks post-accident and that this was estimated to be €16,824. There was also an accompanying schedule of special damages which outlined certain losses. No vouching documentation was provided.

The defendants maintained that the plaintiff had not complied with the November 2018 order and therefore the proceedings stood dismissed. In October 2021, the plaintiff outlined that she had difficulty vouching her loss of earnings claim due to being jointly assessed for income with her husband. It was also stated that the plaintiff could not vouch her other special damages.

In July 2022, the plaintiff issued a motion seeking an order deeming good her compliance with the November 2018 order.

High Court

In an ex tempore judgment delivered in May 2022 (but only made public in June), Mr Justice Heslin made a number of observations about the proceedings. First, it was pointed out that the plaintiff had consented to the original November 2018 order on consent, which was an important consideration. Further, the court outlined that the plaintiff had not identified in correspondence why she could not vouch (for example) medical expenses.

Similarly, there was no explanation as to how the plaintiff could provide such a specific estimate for her loss of earning which at the same time claiming that she could not properly vouch these earnings.

Additionally, while the plaintiff at the motion sought to withdraw her claim for special damages, no request was made to the defendants to consent to such a withdrawal.

The court noted the submissions of the defendants that the plaintiff should not be allowed to “mend her hand” by withdrawing the special damages claim. It was indicated that the defendants may wish to interrogate such claims for the purpose of seeking to dismiss the claim for providing false or misleading information.

The court held that the evidence did not support a finding of false conduct. Instead, the court noted the explanation that the plaintiff was unable to differentiate her earnings from her husbands. This averment was made by her solicitor, an officer of the court, and the court held that it had to be taken as fact. In this regard, no application was made by the defendants to cross-examine the solicitor.

However, the court emphasised that the defendants were not at fault for the “very unhappy situation” that occurred. Some of the plaintiff’s conduct included failing to vouch/detail losses for over two years, only claiming that it was not possible to vouch the losses after the dismissal of the claim, not stating the difficulties from the outset or when the consent order was being made.

The court therefore stated that the plaintiff had not satisfied the terms of the November 2018 order.

The court went on to consider whether the entire claim should be dismissed. In this regard, the court held that the plaintiff’s failures were not wilful as it was not possible (on the plaintiff’s solicitor’s averments) to do what the courts had previously ordered. It was also accepted that the court had a jurisdiction to “save” proceedings dismissed pursuant to an unless order, although this had to be exercised sparingly.

Mr Justice Heslin ruled that it would be disproportionate and contrary to constitutional justice to dismiss the case in toto. The court stated that it could not be blind to the withdrawal of the special damages portion of the claim and that this should be allowed by the court (see Galway Roscommon Education and Training Board v. Orla Macken Walsh [2022] IEHC 235).

It was said that the re-instituted of the general damages claim was not unfair to the defendants as they would not be face with any claim for special damages and the plaintiff could still be cross-examined at trial.

Finally, in respect of costs, the plaintiff was required to pay the defendant’s costs of the motion and the defendant’s costs of defending the special damages claim. The court outlined that these costs ran to the date of judgment because, since the claim stood dismissed, the defendants could not have consented to the withdrawal of the claim before judgment.

Conclusion

The plaintiff’s claim for general damages were reinstated with costs to the defendants.

May v. Barrett and Anor. [2023] IEHC 322