Irish Court of Appeal Confirms High Court Should Have Heard Defendant’s Summons

Posted on 23 March 202320 September 2025 by Lacey Solicitors

Background: Sherry v Murphy & Ors

In Sherry v Murphy & Ors, the Court of Appeal considered an appeal from a High Court judgment and order that refused to fix a date for the hearing of a motion brought by a defendant. The motion challenged the adequacy of a Personal Injury Summons, with the defendant seeking several orders based on alleged failures to comply with High Court procedure and the requirements of Part 2 of the Civil Liability and Courts Act, 2004.

High Court Decision

When the motion was called, counsel for the defendant requested that a date be fixed for its hearing. This request was opposed by counsel for the plaintiff, who argued that the case’s progress was impeded because the first defendant had not yet delivered a defence and was seeking to have his motion assessed in advance.

The High Court judge ruled that the defendant should first deliver his defence and then bring his motion, which could be considered alongside the main hearing. The judge declined to strike out the motion but adjourned it generally and reserved the costs.

Substance of the Appeal

The appeal argued that the High Court judge’s discretion to adjourn the motion irredeemably prejudiced the defendant. It was contended that the order defeated the objectives of Part 2 of the Civil Liability and Courts Act, 2004 and failed to properly balance justice between the parties.

The Court of Appeal noted that while the claim that the order irredeemably defeated the Act’s objectives may have been overstated, the defendant had a valid argument that the requirements of the Act had not been met in the way the claim was pleaded.

Court of Appeal Findings

The Court of Appeal considered the correct High Court procedure and allowed the appeal, remitting the motion to the High Court for hearing. The Court acknowledged the challenges judges face in managing busy lists and limited resources, stating:

“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

Posted on 15 March 202320 September 2025 by Damian McGeady (Partner)

Part One: A Blog by Damian McGeady

Donegal Memories

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.

Early Influences: Sports Writing

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: Denning on Village Cricket

“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…”

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 and Baseball

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.”

Dublin: Mr Justice Declan Budd and Irish Baseball Writing

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, which I happened upon by accident.

“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.

Looking Ahead: Part Two

In Part Two, we explore further Mr Justice Budd’s judgement and other Irish judicial references to sport.

McHugh v Ferol: Court Confirms Uplift for Secondary Injuries Can Exceed Dominant Injury Award

Posted on 14 March 202321 September 2025 by Lacey Solicitors

In the case of McHugh v Ferol, the Court examined an important issue in personal injury law: whether the uplift for less dominant injuries can exceed the value of the dominant injury award. The Court referenced the approach taken by Coffey J in The Lipinski Judgement, noting that current guidelines for general damages do not provide a clear process for calculating uplifts to ensure that a claimant receives fair and just compensation for all injuries suffered.

Understanding Uplift in Personal Injury Cases

In legal terms, “uplift” simply means to increase. The Court emphasised that damages awarded for non-dominant injuries can, in some circumstances, exceed the amount awarded for the main or dominant injury. There is nothing in the guidelines to suggest that the uplift must be limited to a proportion of the dominant injury award.

This principle recognises that claimants suffering multiple serious injuries may not be adequately compensated if the uplift is artificially restricted. By allowing the uplift to exceed the dominant injury, the Court ensures that all additional pain, suffering, and functional limitations are considered fairly.

How the Court Assessed Uplift in McHugh v Ferol

In this case, while the Court confirmed that an uplift could exceed the dominant injury award, it did not apply this principle for the specific circumstances of the claimant.

The dominant injury was assessed at €60,000.
The cumulative value of less dominant injuries was €65,000.
The Judge, Murphy J, applied a practical approach, setting the uplift at half of the cumulative value, resulting in €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.”

This methodology ensures that all injuries are recognised and valued, while avoiding overcompensation for overlapping or related harms when dealing with an uplift in Personal Injury Compensation in Ireland

Lessons for Insurers in Calculating Uplift in Personal Injury Compensation in Ireland

The McHugh v Ferol judgment provides important guidance for solicitors and claimants in personal injury litigation:

Uplifts for less dominant injuries are not automatically capped by the dominant injury award.
Courts have discretion to determine a proportionate and fair uplift based on the cumulative impact of multiple injuries.
Proper assessment of pain, suffering, and functional limitations is critical to ensure just compensation.
The case highlights the importance of presenting detailed evidence of all injuries and their impact when seeking damages.

This decision reinforces the principle that personal injury awards must reflect the full scope of a claimant’s suffering, particularly where multiple injuries are involved.

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

Posted on 14 March 20233 August 2024 by Damian McGeady

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.”

Related Blogs

London High Court Clarifies Conflicts in Vehicle Trade Insurance Policies

Posted on 13 March 202320 September 2025 by Damian McGeady

Introduction on the Vehicle Trade Insurance Dispute

The High Court in London recently resolved a dispute involving an Equity Red Star (ERS) Trade Policy issued to a vehicle transport company. The case highlights how conflicting wording between a policy schedule and its certificate can affect the application of insurance coverage, particularly in the context of trade plate vehicles and personal use.

Policy Schedule vs Certificate: Conflicting Wording

The policy schedule limited coverage to a specific number of vehicles being driven on Trade Plates, with the class of use defined as “Business use of the Insured.”

In contrast, the certificate included broader coverage. It referred to “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”, with the class of use described as “Use for social, domestic and pleasure purposes and for the business of the policyholder.”

Incident Leading to the Vehicle Trade Insurance Dispute

In September 2017, an employee of the insured collected a vehicle scheduled for delivery to a client. On the second day, while driving without trade plates and apparently for social or domestic purposes, the employee was involved in a collision, resulting in serious injury to a third-party driver.

This incident triggered a dispute between Allianz, the usual insurers of the transported car, and ERS, over whether the ERS policy applied in these circumstances.

High Court Judgment

Beltrami J examined the apparent conflict between the schedule and the certificate. The court concluded that the ERS policy did not apply in this case:

“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, yield to the Schedule on such matters.”

Legal Principle: Schedule Prevails

This judgement reinforces the principle that, where a policy schedule conflicts with a certificate, the schedule governs the scope of coverage. Insurers and policyholders should rely primarily on the schedule when determining rights and obligations under a trade insurance policy.

Conclusion on Vehicle Trade Insurance Disputes

The ERS Trade Policy case serves as a reminder for both insurers and policyholders to carefully review policy schedules and certificates. Clear documentation is crucial to avoid disputes over coverage, particularly when vehicles are used for both business and personal purposes.

High Court Guidance on Direct Instruction of Expert Medical Witnesses in Personal Injury Cases

Posted on 9 March 202320 September 2025 by Damian McGeady

Expert testimony plays a pivotal role in personal injury litigation, often influencing the outcome of a case. A recent High Court judgement has offered clear guidance for both Plaintiff and Defence Solicitors regarding when and how medical experts can be instructed directly by solicitors.

The Importance of Medical Expert Evidence

In personal injury claims, condition and prognosis reports prepared by medical professionals are crucial. These reports allow the court to assess the nature and severity of a plaintiff’s injuries, whether the expert is the treating physician or an independent consultant. Questions have arisen, however, about the appropriateness of solicitors directly referring clients to experts, particularly when there is no pre-existing doctor-patient relationship.

McLoughlin v Dealey & HSE [2023] IEHC 106

In McLoughlin, the plaintiff sustained a back injury at work, which led to her leaving a physically demanding nursing career. Although her GP records did not indicate ongoing issues, her solicitor referred her to an orthopaedic surgeon, who subsequently produced multiple reports for the court. The High Court examined whether this type of referral affected the credibility or weight of the expert’s evidence.

Previous Judicial Perspectives

Earlier cases, including Sarah Cahill v Brian Forristal and Rachel O’Riordan v Brian Forristal [2022] IEHC 705, noted that referrals via a GP were generally preferable. A treating doctor’s existing knowledge of a patient’s history can provide a fuller context, whereas solicitor-led referrals might raise questions about the medical basis for the referral. That said, courts acknowledged that solicitor referrals can be acceptable in certain circumstances, and defendants may obtain their own independent assessments for comparison.

Irish High Court Findings on Referrals to Medical Experts

Ferriter J confirmed that solicitors may legitimately advise clients to engage independent medical experts. Key points include:

Plaintiffs are not restricted to using treating doctors for expert evidence.
Independent experts must be fully briefed on the plaintiff’s relevant medical history and provided sufficient opportunity for examination.
Experts must offer objective opinions in accordance with their duty to the court.
Solicitors are responsible for ensuring the expert complies with these standards, failing which they may not be fulfilling their duty to their client.

In McLoughlin, the court granted full weight to the expert evidence, noting that the plaintiff had accurately disclosed her medical history. Defendants were also entitled to have independent examinations conducted, provided that procedural and disclosure rules were followed.

Law Society Protocol for Commissioning Medical Reports

Following these rulings, the Law Society of Ireland’s Litigation Committee published a Protocol for Commissioning Medical Reports in March 2023. This Protocol provides clear guidance on solicitor-led referrals, reinforcing the importance of briefing experts correctly and maintaining compliance with legal and ethical obligations.

Referrals to Medical Experts in Ireland in Injury Litigation

Direct Referrals Are Permissible: Solicitors may refer plaintiffs to independent medical experts when it is appropriate and in the client’s best interests.
Ensure Experts Are Fully Informed: Any expert instructed should have comprehensive access to the plaintiff’s relevant medical history and sufficient opportunity to examine the client.
Maintain Objectivity: Expert reports must be impartial and comply with the expert’s overriding duty to the court.
Defendants’ Rights to Independent Assessments: Defendants retain the ability to instruct their own experts, ensuring that all medical evidence is fairly tested.
Follow Law Society Guidance: The Law Society Protocol for Commissioning Medical Reports sets out recommended best practice for solicitors managing expert medical evidence.

Construction Site Safety: The Role of the Project Supervisor and Contributory Negligence

Posted on 9 March 202320 September 2025 by Lacey Solicitors

A recent judgment by Mr Justice Sanfey examined the role of the Project Supervisor on a construction site and clarified the extent of a contractor’s duties under the Safety, Health and Welfare at Work (Construction) Regulations 2013.

Duty of the Project Supervisor in Construction Site Safety

The Court accepted the Defendant’s argument that a contractor or Project Supervisor is not under an absolute duty to ensure a construction site is completely safe and free from risk of injury.

Article 30 of the 2013 Regulations explicitly states that this duty applies “so far as is reasonably practicable”, providing flexibility while maintaining a high standard of safety oversight.

Findings on Liability

In this case:

The safety statement prepared by the Defendant was found to be deficient, establishing primary liability with the Defendant.
The Plaintiff was found to have contributed to the incident through contributory negligence, by adopting a method of work that was inherently unsafe.

This judgment highlights the balance between contractor responsibilities and the practical limitations of maintaining safety on construction sites.

Warnings for Contractors and Project Supervisors

Reasonable Practicability: When considering Construciton Site Safety, contractors must ensure safety measures are implemented to a reasonable standard, considering cost, time, and practicality.
Safety Statements Matter: A deficient safety statement can expose contractors to primary liability.
Contributory Negligence: Workers or supervisors adopting unsafe methods may reduce the recoverable damages in a claim.
Compliance: Adhering to the 2013 Regulations is crucial to mitigate liability.

This judgment serves as a reminder for Project Supervisors, contractors, and construction firms that while safety obligations are high, they are measured against what is reasonably practicable. Proper planning, effective safety statements, and safe work practices remain critical to protecting both employees and employers.