The recent Court of Appeal judgment of Platt v OBH Luxury Accommodation Limited & Anor [2017 IECA 221] concerned an exaggerated claim and the Plaintiff was found to have lied.

Case Overview:

Mr Jason Platt, (known as the plaintiff) had travelled to Kinsale for a Valentine’s weekend break and he and his partner were staying at the Old Bank House, Pearse St, Kinsale where he claims the accident took place on February 15, 2009. The plaintiff alleged he fell from a windowsill in a room in the defendant’s hotel. As a result, his ribs, spine and hip were severely damaged. Mr Platt had sued OBH Luxury Accommodation Ltd with offices at Pearse St, Kinsale and company director Ciaran Fitzgerald.

Nevertheless, the hotel owners contended that Mr Platt threw himself from the window of his guestroom following a heated argument with fiancée.

Mr Platt sought compensation for his injuries and was presented through his testimonies as a poor man suffering chronic pain and discomfort. The plaintiff had also submitted under oath, an affidavit verifying a schedule of special damages and future loss claiming almost £1.5 million. It became apparent that he was found to have intentionally deceived the court and overstated the level of his agony and the degree of his incapacitation.

High Court:

Regardless of finding the Defendants 60% responsible, Barton J. discharged the Plaintiff’s claim after video evidence submerged of him going shopping, driving, carrying bags, and walking unassisted. (a clear disparity to the testimony from the Plaintiff who emphasized how extremely incapacitated he was as the Plaintiff had previously specified that he was now duty bound to use a wheelchair, crutches or a commode.)

Court of Appeal:

Irvine J. dismissed the appeal, relying on Section 26 of the Civil Liability and Courts Act 2004 to discharge the whole claim.

The Court of Appeal specified that the 2004 Act was designed to ensure that incorrect or deceptive declarations, accusations or evidence would “not lightly be tolerated”.

Section 26 of the Civil Liability and Courts Act 2004:

Section 26 states:

“If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—

(a) is false or misleading, in any material respect, and

(b) he or she knows to be false or misleading,

the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.”

Barton J stated, the standard of proof that is essential to effectively appeal Section 26 was the balance of probability, nonetheless the seriousness of the matter being alleged must be taken on board as well as the gravity of the issue and the consequences in considering the evidence essential to discharge the onus of proof.

Importantly, it was verified by the court that if a Section 26 application is successful the entire claim must fail. This was confirmed in Meehan v BKNS Curtain Walling Systems Ltd. [2012] IEHC 441. Irvine J. went on to state that “the plain and ordinary meaning of the words make clear that if the evidence is false and misleading in a material respect “the action” shall be dismissed. The section is simply incapable of any other construction”.

Secondly, before dismissing a claim under Section 26 the Court must also look at the consequences for the plaintiff where a claim is discharged under Section 26.

However, although adverse penalties must not be the only influence considered, the Court continued that it can be considered amongst other relevant factors. A failure by a court to do so would conflict against the Court’s obligations to interpret legislation in accordance with the legitimate principles of fairness and proportionality.

Nevertheless, the Court of Appeal maintained that the finding of Barton J. in the High Court was correct. The Court of Appeal agreed with the defence that a claim such as this was “indeed the type of case the Oireachtas had in mind when the (Section 26) legislation was enacted”.

Conclusion:

This is a very significant judgement.

Firstly, it reiterates the transparency of the law. If a Plaintiff is found to have exaggerated his or her claim, the entire case will be dismissed and he or she may be prosecuted.

Dismissing a fraudulent claim like this is a victory for the defendants and insurers. As a result, the compensation money that would have gone to the plaintiff, can now be used to compensate the numerous honest victims of personal injury when required.

Moreover, any claim that goes in favour of the injured party has been supported by comprehensive medical records, expert reports, widespread evidence and cross examination.

It is hoped the courts judgement will mark the beginning of a change in attitude from the courts when considering Section 26 applications in the future.

BY COLLEEN WARD – TRAINEE SOLICITOR

The article illustrates the difficulties arising from pursuing an order under Section 26 of Civil Liability and Courts Act 2004. Outlined below is a recent High Court highlighting the difficulty insurers have on pursuing a case dismissal under Section 26.

Section 26 states that “if a plaintiff claiming injury does not tell the truth on affidavit or does not tell the truth in Court, then the Court has discretion to either dismiss the claim in its entirety or penalise the plaintiff in respect of any damages made. Even on the occasion where a plaintiff has done so unwittingly or even innocently. Where a Court is satisfied that the requirements of Section 26 have been met, then the provisions of Section 26 are binding.

Buncrana Circuit Court awarded seven plaintiff’s damages between €5,050 and €9,550 as a result of a collision on 28 June 2011 involving two cars on a roundabout in Lifford, County Donegal.

The plaintiff’s each claimed for soft tissue injury. Firstly, against the driver of the vehicle responsible for the accident and secondly, against Ryan’s Investments NI Ltd trading as Hertz Rent-A-Car whom the negligent driver’s car was hired.

Ryan’s investments insurers appealed the award made by the Circuit Court branding the accident as a “fraud.” They claimed those involved knew each other via membership of Republican commemoration groups and that the accident had been fabricated with the sole purpose of extracting the maximum compensation from the driver’s insurance company.

Mr. Justice Charles Meenan, who delivered the High Court judgement in July rejected this claim. He maintained the most that was admitted by the plaintiffs was that some of the men knew each other in an only “to see” capacity.

Though the evidence, in some instances, concerning prior knowledge of each other, was “less than forthright” he remained unconvinced that such evidence went so far as to establish the collision was a ‘set up.’

The Circuit Court understood that the negligent driver had contacted one of the injured men by telephone when returning his car to the Hertz office. The call was overheard by a Hertz employee, who stated, that the ‘friendly manner’ of the discussion was evidence that the collision was a complete fraud.

Yet, Judge Meenan maintained the awards made by Buncrana Circuit Court. Referring to the phonecall, he believed that if the accident was staged “the communication during the telephone call would previously have been decisively fixed in the negligent driver’s mind previous to returning the hire car.”

The defendants’ lawyers relied on the plaintiffs’ medical evidence which was disclosed during the hearing. All seven reports indicated that a complete recovery was made within a short time frame.

Unfortunately, Mr. Justice Meenan rejected the allegation the accident was a ‘set up.’ affirming there was not sufficient evidence adduced to make an order pursuant to Section 26. Total damages of €52,350 were awarded against the Defendants.

Farrell v Dublin Bus is an illustration of the court exercising its discretion on Section 26.

Mr. Justice Quirke held that Ms. Farrell, had, given evidence which she knew was false and she did so to support her claim that her injuries deprived her of any income from the date of her accident.

On this foundation, the judge held Dublin Bus was entitled to a Section 26 Order dismissing the claim.

We understand relying on Section 26 can sporadically miscarry. However, it is one of the limited provisions of the 2004 Act that can be used to discourage dishonest and exaggerated claims.

In our experience, we have found that the leading reasons for discharging cases under Section 26 are often one or more of the following: –

• Prior injuries to the accident not revealed during the course of the case.
• False loss of earnings claims as one of the reasons in Farrell v Dublin Bus.
• Articulate fabrications in evidence of a severe and substantial nature.

At Lacey Solicitors, our team of legal professionals are highly trained in dealing with fraudulent and exaggerated claims. We can ensure all clients, both plaintiff and defendant are given full professional directions throughout the entire claims process.

BY COLLEEN WARD – TRAINEE SOLICITOR