High Court Procedure. Should a Summons be heard?

Appeal finds that High Court ought to have heard Summons brought by Defendant rather than adjourn it generally.

by Damian McGeady

In Sherry v Murphy & Ors, the Court of Appeal heard an appeal from a judgement and Order of the High Court, the substance and effect of which was to refuse to fix a date for the hearing of a motion brought on behalf of a Defendant who challenged the adequacy of a Personal Injury Summons. The defendant sought several orders based on the alleged failure of the personal injuries summons to comply with High Court Procedure and the requirements of Part 2 of the Civil Liability and Courts Act, 2004.

When the motion was called counsel for the defendant asked for a date to be fixed for the hearing of the motion. This was opposed by counsel for the plaintiff who argued that the progress of the case was impeded by the fact that the first defendant had not delivered his defence and was seeking to have his defence assessed by way of a motion. The judge ruled that he should first deliver his defence and then bring his motion, which could be dealt with alongside the hearing of the action. The judge declined an application by counsel for the plaintiff to strike out the motion but rather adjourned it generally and reserved the costs.

The Substance of the Appeal was that the High Court judge exercised his discretion to adjourn the motion generally – or not to assign a hearing date – in a manner which irredeemably prejudiced the defendant. It is said that the effect of the order was to irredeemably defeat the objectives of Part 2 of the Civil Liability and Courts Act, 2004 and that the order made failed to have regard to where the balance of justice lay.

The Court of Appeal held that the suggestion that that the effect of the order was to irredeemably defeat the objectives of the Act probably put it too high but, did find that the defendant had an argument to make that the requirements of the Act had not been met in the way the claim against him was pleaded.

In considering correct High Court procedure and allowing the Appeal and remitting the motion to the High Court for hearing the Court acknowledged the difficulty that Judges face in matters such as these.

“I acknowledge that in the management of busy lists and scarce resources a significant margin of appreciation must be afforded to the list judge but in my view, he was led into error by the summary of the issues. In my view, the refusal of the High Court judge to fix a date for the hearing of the motion created a substantial risk of significant procedural unfairness coupled with a likelihood that no effective remedial action could be put in place later to address the very significant additional costs to which the first defendant was exposed in the event that his application proved to be successful.”

Sports Writing, Shane Warne, The Master of the Rolls and Baseball

Part One.
A blog by Damian McGeady
Donegal.

Until recently, I thought that I had read the greatest legal paragraph ever written in my first week as a law undergraduate. I know that it’s a bit niche, but please do bear with me. It was written by Lord Denning. That was in 1993. Sam Maguire was sitting behind a bar in Maghera at the time, well-oiled in his first week in Derry. I had spent the summer driving and dreaming. Driving a TNT liveried van around every back road in Donegal, dreaming of Croke Park on the third Sunday in September. I was listening too. To every ball of the 1993 Ashes series. Not that I had been a fan of Cricket before then. The FM signal in Donegal was patchy. The one constant was Long Wave. And so, it was for me a summer of BBC Test Match Special on the World Service.

Old Trafford (Not that One).

Do you remember Shane Warne’s Ball of the Century? I do. I was in a Ford Transit van driving from Gweedore to Letterkenny. I had just passed the foot of Errigal, there passed McGeady’s Pub at the rise above the Poisoned Glen. The Sky was cloudless. It was his first Ashes ball. And I heard it, live. I was hooked. Until then, I didn’t get cricket.

Lord Denning did. He got cricket. Weeks later with the ink barely dry on my USIT card I read the opening of his Judgement in the case of Miller v Jackson.

I was a fan of good sports writing. I had devoured Paul Kimmage’s Rough Ride that summer. Earlier in the year I had read Nick Hornby’s Fever Pitch. On Sundays it was Brian Glanville and Hugh McIllvaney in the broadsheets. Then there was Denning’s Miller v Jackson opening paragraph.

County Durham.

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”

Denning’s whimsical piece is a joy of sporting and legal literature. He got Cricket the way John Woodcock got Cricket. On his death Woodcock was hailed the poet laureate of cricket writers.

New York.

Roger Angell might be described as the poet laureate of Baseball. In 2014 Sports Illustrated called him the greatest Baseball Writer in America. He wrote regular Essays in The New Yorker. In doing so it quoted his 1975 piece, Agincourt and After, where he described

“the infantile and ignoble joy that sends a grown man or woman to dancing and shouting with joy in the middle of the night over the haphazardous flight of a distant ball—seems a small price to pay for such a gift.”

Mr Justice Declan Budd could have given Angell a run for his money. The Irish High Court Judge retired in 2011 after 20 years on the bench. It was only recently that I became aware of his judgement in the 1999 case of Kane v Kennedy. I happened about it just by accident.

Reader, prepare yourself for the most wonderful piece of baseball writing. This is breathtakingly beautiful. As eloquent as any of the great American sports writers. This from an Irish Judge.

Dublin.

“The news of the death of Joe DiMaggio came while I was writing this judgment. His record streak in 1941, when he got a hit in fifty six consecutive games, still stands. His grace at the plate and his defensive qualities at centre field, his leadership of the New York Yankees to victory in nine of the ten world series in which he led them, and above all his gentlemanly conduct made him a legend in his own lifetime. I wonder what he would have made of the problems with which I have been confronted in resolving the conflicts of evidence presented by what followed the strike by Alice Dunne during the game of rounders played in the sports hall of a convent school in Glasnevin on the morning of Tuesday 21st May 1996.”

I read it again. And again.

In Part two we explore further Mr Justice Budd’s judgement and other Irish Judicial references to sport.

High Court rules that ‘The Uplift’ can exceed the value of the award for the dominant Injury in applying the new Guidelines.

In the case of McHugh v Ferol the Court was asked to accept that the value of the uplift for less dominant injuries can exceed the value of the award for the dominant injury. The Court in accepting the approach undertaken by Coffey J. in The Lipinski Judgement, noted that the guidelines do not provide advice as to the process a court should undertake when assessing the uplift to ensure that a claimant is fairly and justly compensated for additional pain and suffering. It noted that in reaching his decision in Lipinski that Coffey J. did not set out the process he arrived at to calculate the uplift of €25,000 in circumstances where the main injury attracted €35,000.

The Court held that the uplift could in fact exceed the amount awarded for the dominant injury.

““Uplift” simply means to raise. The rise in damages for pain and suffering arising from the non – dominant injury in any particular case, could well exceed the award of damages for the dominant or main injury. There is nothing in the Guidelines to suggest that the single uplift is restricted to a proportion of the damages awarded for the main injury. This Court can well envisage a circumstance in which a fair and proportionate uplift would exceed the general damages awarded for the dominant injury.”

For illustrative purposes the Court outlined how a claimant who suffered from multiple serious injuries would not be justly compensated if the uplift could not exceed the award for the dominant injury.

In the McHugh case, whilst the court accepted the principle that the uplift could exceed the award for the dominant injury it did not do so in the case at hand. Murphy J. assessed the value of the dominant Injury at €60000. She then sought to place a value on each of the less dominant injuries. The cumulative value of which was €65,000. The Judge settled on a figure for the uplift at half of the cumulative value, being €32,500.

“Taking into account the roll up factor and the overlap of injuries, the court considers that an uplift of €32,500, represents fair and just compensation for all the additional pain, discomfort and limitations arising from the plaintiff’s lesser injuries.”

The Judgement can be read here.

The High Court restates the position that Solicitors can instruct non-treating Medical Experts in Injury Actions.

Healy v HSE is the second Irish High Court judgement in a matter of days that focussed on the issue of Solicitors instructing non-treating Medical Experts in Personal Injury actions. The Court restated the position that it was entirely appropriate. In doing so the Court in fact considered the rules elsewhere, where often Medical Evidence from treating experts can be viewed as potentially conflicted.

“Solicitors and counsel have training, experience and skills which derive from established duties and principles. The legal profession is considered by the Court to be a noble profession; it assists in upholding and protecting the law. Law preserves the moral sanctity which binds society. In short, no question was asked or arose during the assessment hearing about the propriety of the referral of the plaintiff by each firm of solicitors to some of the medical practitioners, followed by the delivery of medico – legal reports.”

Conflict between the wording of a Motor Insurers certificate and schedule. How is it resolved?

The High Court in London recently heard a case where there was such a conflict involving an Equity Red Star Trade Policy. The policy was issued to a vehicle transport company. The schedule stipulated that the policy covered a limited number of vehicles being driven on Trade Plates. The class of use on the schedule was described as “Business use of the Insured”.

The Certificate differed, and stated, “Any private car or commercial vehicle the property of the policyholder or in their custody or control including any motor vehicle bearing a trade plate number owned by the policyholder.” The class of use as stated on the certificate was “Use for social, domestic and pleasure purposes and for the business of the policyholder.”

In September 2017 an employee of the Insured had collected a vehicle that was due to be delivered to a client a few days later. On the second day the employee, driving the vehicle, without trade plates, and for what appeared to be social and domestic purposes, was involved in a collision in which the third-party vehicle driver suffered serious injury.

A dispute arose between Allianz (ordinarily the Insurers of the transported car) and ERS, as to whether the ERS policy applied.

Beltrami J, addressing the apparent conflict in the ERS Policy found that the ERS policy did not apply.

“I find that the conflict should be resolved in ERS’s favour. Taking the ERS Policy as a whole, the operative document which defined the insured vehicles and the cover which applied was the Schedule. That Schedule was unambiguous as to those matters. The Certificate served a different purpose and should, in the event of inconsistency, have to yield to the Schedule on such matters.”

The Judgement can be read here.

“Solicitor cannot be faulted for engaging a medical expert witness directly in an appropriate Case”

A recent High Court judgement has given helpful Guidance for Plaintiff and Defence Solicitors on direct instruction of Expert Medical Witnesses in Personal Injury Actions.

For a measured and appropriate discussion on the selection and use of expert medical witnesses in Personal Injury Cases, the recent Judgement of Mr Justice Ferriter is worth a read. It’s analysis of recent case law and helpful reference to the Law Society of Ireland’s Protocol for direct referral to Consultants by Solicitors is worth bookmarking.

Read more here.

The Importance of a rigorous Method Statement by a Project Supervisor.

The Role of the Project Supervisor on a Construction Site is examined in the Judgement of Mr Justice Sanfey in a recent decision. He accepted the Defendant’s contention that that a contractor responsible for a construction site is not under an absolute duty to ensure that the site is safe and without risk of injury. That Article 30 of the 2013 Regulations makes it clear that this duty applies “so far as is reasonably practicable”.

In this case the Court held that the safety statement was deficient. Primary liability rested with the Defendant. The Plaintiff was found to be guilty of Contributory negligence for adopting a method that was inherently unsafe.

Read more here.