As and from 3rd February 2014 the new monetary jurisdictions will be as follows:

the jurisdiction of the District Court in civil proceedings will increase from €6,384 to €15,000

the jurisdiction of the Circuit Court in civil proceedings will increase from €38,092 to €75,000, except in personal injuries cases where a reduced increase of €60,000 is introduced.

We understand that the Minister intends to introduce new District Court Rules including:

• District Court Scale costs
• new Superior Court Rules
• new Fees Orders for all courts in January 2014 (court fees are unlikely to be reduced)

It is likely these changes too will be effective as and from 3rd February 2014.

As and from 3rd February 2014 the new monetary jurisdictions will be as follows:

the jurisdiction of the District Court in civil proceedings will increase from €6,384 to €15,000

the jurisdiction of the Circuit Court in civil proceedings will increase from €38,092 to €75,000, except in personal injuries cases where a reduced increase of €60,000 is introduced.

We understand that the Minister intends to introduce new District Court Rules including:

• District Court Scale costs
• new Superior Court Rules
• new Fees Orders for all courts in January 2014 (court fees are unlikely to be reduced)

It is likely these changes too will be effective as and from 3rd February 2014.

IRL High Court rules installation of a glass door which caused injury was not negligence.

Newman -v- Cogan & Anor

O’Neill J ruled that that the defendants had not failed, pursuant to s. 3 of the Occupiers Liability Act 1995, to take reasonable care in respect of the plaintiff, a visitor on the premises, to ensure that the plaintiff did not suffer injury or damage by reason of any danger existing on the premises after the plaintiff suffered the loss of an eye due to shards of glass entering her eye when a door pane was smashed.

The plaintiff sought to rely on the case of Wells v. Cooper [1958] 2 Q.B. 265, a decision of the United Kingdom Court of Appeal in which it was held as follows as revealed in the head note:-

“Held dismissing the appeal,
(1) That on either ground of action the duty owed by the defendant to the plaintiff was a duty to take reasonable care for safety.

(2) That, in the case of such a trifling domestic replacement, a man of the defendant’s experience was justified in undertaking it himself.

(3) That the degree of care and skill required of a householder undertaking his own repairs was to be measured not by reference to his own degree of personal competence, but by reference to the degree of care and skill which a reasonably skilled carpenter might be expected to apply to the work in question.

(4) That, since the defendant, a reasonably competent carpenter, was doing his best to make the handles secure, he must be taken to have discharged his duty of care unless his belief that three quarter inch screws would be adequate was one which no reasonably competent carpenter would reasonably entertain, and the evidence failed to establish that.

Per curiam. The decision did not mean that the degree of skill and care required of an inviter such as the defendant was to be measured by the contractual obligations as to the quality of his work assumed by a professional carpenter working for reward, which was of a higher standard.”

The Judge ruled however, that it could not reasonably be suggested that a householder who elects to carry out a relatively simple repair, such as the replacement of a pane of glass, could be expected to be familiar with the technical standards set down in the technical guidelines associated with the Building Regulations. Thus, it could not be said that a householder, who was a reasonably competent glazier, such as the first named defendant, could not have reasonably believed that the glass chosen was suitable for this location.

O’Neill J also commented that to hold the defendant liable in negligence for installing this door pane this would be to impose upon the defendants a duty of care which would be artificial and which, in all probability, they had no real chance of discharging. Thus, in choosing this particular type of glass, which is in common usage in dwellings, it could not reasonably be said that the defendant failed in his duty as occupier of this premises, to the plaintiff, to take reasonable care to protect her from dangers on the premises.

The full judgement can be read here:

S.Major, Lacey Solicitors

De Cataldo -v- Petro Gas Group Ltd & Ors

As a result of a slip outside a petrol station, the plaintiff claimed she suffered a serious injury to her left pelvis, hip and sacrum area which had the effect of disabling her for a prolonged period of time from a variety of normal activities, namely, work for about three months, and a host of domestic activities for upwards of three years.

In respect of this latter claim, i.e. her inability to do a variety of domestic chores, she claimed that she required the assistance of a carer or nursing assistant for three years, and she submitted, in these proceedings, a claim for over €73,000 for the cost of employing three carer/nurse assistants sequentially over the time involved. She updated that claim by the provision of further particulars to include the third carer, raising the claim from approximately €69,000 to €73,490.

When the proceedings came on for hearing, this claim was abandoned, as also was the claim for €10,175 for a variety of oils and other preparations. When challenged on the making of that claim, the plaintiff’s explanation was that this claim was put in by her solicitor contrary to her instructions. In response to this evidence, Mr. Burns S.C. for the defendants, put to the plaintiff the affidavit of Mr. John Synnott, her solicitor and the exhibit therein, grounding an application by Mr. John Synnott to come off record for the plaintiff.

This affidavit and the letter exhibited paint an entirely different picture. Mr. Synnott applied to come off record because he was unwilling to continue acting for the plaintiff because of what he deposed to as the exaggeration by the plaintiff of her claims and, specifically, her claim for €73,490 for nursing assistants, and other incidences where he felt he had been misled by the plaintiff.

The Judge went on to comment that the plaintiff’s evidence was wholly unreliable, that he was satisfied, on the balance of probabilities that she had not slipped on oil and that the defendants were not guilty of negligence.

The full judgement can be read here:

S. Major, Lacey Solicitors

McDonald -v- Frossway Trading as Bleu & Ors

O’Neill J noted that anyone, lay or expert, who considered the relevant features of the location of the stairs, namely, in a busy city restaurant, in an ambiance where the lighting was relatively low, the rather dark colouring of the stairs, the absence of any clear markings on the nosings of the stairs, the normal noise, hubbub and conviviality that one would expect in a restaurant of this kind late at night, the fact that diners at that time of night would be enjoying themselves and may have consumed some alcohol and the constant movement around the restaurant of patrons and staff; these features would have brought about a realisation there was a high level of risk that a diner late at night would miss their footing on the steps and stumble.

The Court ruled that the first and second named defendants could not excuse their failure by saying they engaged an independent expert contractor when the danger posed by the absence of a handrail in this location must have been readily foreseeable to them as experienced restaurateurs. They did not need the advice or assistance of an expert to appreciate such an obvious risk.

The full judgement can be read here:

S.Major

Lacey Solicitors

Agnes Armstrong v Sean Moffatt & Ors

IRL High Court set out rules regarding notices for further particulars in personal injury cases, clarifying the extent to which the Civil Liability and Courts Act 2004 has altered practice in this regard.

In his judgement, Hogan J was highly critical of the practice of seeking particulars above and beyond the realms of necessity, describing how the particulars sought in many cases had “reached something of an art form”.

The Judge, in determining appropriate practice regarding this issue, set about analysing each of the particulars requested by the defendants in turn, and applying legal principles stemming from, and also predating the 2004 Act. He began by highlighting the changes enacted by the Civil Liability and Courts Act 2004 regarding pleading in personal injury cases. He outlined that Sections 10 and 13(1) of the 2004 Act outlined what information must be contained in a personal injury summons.

He also highlighted the fact that Section 11 also allows the defendant in a personal injuries action to request the following further information, namely:-

“(a) particulars of any personal injuries action brought by the plaintiff in which the court makes an award or damages,

(b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled,

(c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and

(d) the name of any persons from whom the plaintiff received such medical treatment…”

In turning to the general principles regarding the criteria for allowing particulars, Hogan J highlighted the judgement by Henchy J. in Cooney v. Browne [1984] I.R. 185, 191 of being of particular relevance, in which it was stated:

“Where particulars are sought for the purposes of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, or for some other special reason: see O. 19, r. 6(3). Where the particulars are sought for the purpose of a hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing….Thus, where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”

Commenting on this judgement, he stated that particulars are ordered in the interests of fair procedures and to ensure that a litigant will not be surprised by the nature of the case which he has to meet. He noted that the case-law shows that this is essentially the governing principle in all cases where the issue of whether the particulars should be ordered has been considered.

The first request in the defendants’ particulars which came under fire by Mr Justice Hogan was the issue of whether legal expenses insurance had been obtained, about which he stated “The question of legal costs insurance does not even remotely arise from any matter stated in any pleading.”He similarly disallowed queries relating to the time of the accident and whether an accident was called, stating that neither relates to the matters pleaded in the summons. Regarding the request for the identity of witnesses Hogan J did not find a personal injury case as remotely within that category, stating that the request in fact “effectively seeks to elicit evidence rather than clarify the scope of a pleading.” A request by the defendants for a narrative account of the accident was also dismissed as seeking “what amounts to a witness statement from the plaintiff by way of particulars.” The Judge also rejected a call to provide particulars of negligence and breach of duty as being already pleaded, requiring however that the plaintiff clarify her claim in respect of the Occupiers Liability Act 1995.

He similarly regarded a request for particulars of treatment as being irrelevant beyond those pleaded in the summons, questioning the relevance of the identity of the medical advisers or the details of any medication prescribed.

On the issue of a request for information regarding the plaintiff’s prognosis, the Judge rejected these as being already pleaded and stated that inquiries into social welfare and special-damage details were premature

The full judgement can be read here:

S. Major, Lacey Solicitors

Ryan J dismissed an action by the plaintiff in accordance with section 26 of the Civil Liability and Courts Act 2004 on the grounds (a) that he gave false or misleading evidence in a material respect which he knew to be false or misleading; (b) that he swore an affidavit under s. 14 of the 2004 Act containing knowingly false or misleading information in a material respect.

The initial case as pleaded by the Plaintiff was that he fell from scaffolding at first floor level at a building site as a result of the scaffolding being defective. He claimed it was defective because there was no intermediate bar on the scaffolding and neither was there was a toe board where he was located. After it became clear however that the Defendant had obtained CCTV footage which painted an entirely different story and showed major discepancies in the Plaintiff’s evidence including the fact that there was in fact an immediate bar in place, and that he had gone over the bar, rather than tumbling through the scaffolding, this led to the Defendants making an application under s.26 of the Civil Liability and Courts Act 2004 to have the case dismissed, with the Court rejecting the Plaintiff’s explanation of these discepancies as being due to confusion caused by his accident.

The court outlined the relevant parts of s.26 in the case as follows:

“(1) 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 plaintiffs action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that-

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

(b) that he or she knew to be false or misleading when swearing the affidavit, dismiss the plaintiffs action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.”

The Judge noted that it is clear that the burden of proof rests on the defendant seeking dismissal: Ahern v Bus Eireann [2011] IESC 44.

In Dunleavy v Swan Park Ltd 2011 IEHC 232, O’Neill J said that section 26″ is there to deter and disallow fraudulent claims. It is not and should not be seen as an opportunity to seize upon anomalies, inconsistencies and unexplained circumstances to avoid a just liability.”

In Carmello v Casey [2008] 3 IR 524, Peart J said that s.26 “, but it is deliberately so in the public interest, and is mandatory in its terms, once the court is so satisfied on the balance of probability, unless to dismiss the action would result in iJ1iustice being done.”

In Farrell v Dublin Bus [201o] IEHC 327 Quirke J dismissed the plaintiff’s claim because of misleading evidence in respect of future loss of earnings. The court was satisfied that the plaintiff had knowingly given or caused to be given misleading evidence in a material respect in support of her claim and the judge said: –“That finding, on its own, requires that the court must dismiss the plaintiffs claim unless the dismissal of her action would result in an injustice being done.” The same judge considered the question of injustice in a subsequent case, Higgins v Caldark Ltd [2010] IEHC 527 when he said that “the court’s discretion is limited. It may not be exercised simply because the statutory sanction required will have very severe consequences for a hard-working and likeable man who has suffered a serious injury.”

The judge went on to deal with the situation that arose in relation to the part of the claim that was not affected by the false or misleading evidence:

“The imposition of the sanction has the effect of depriving the claimant of damages to which he or she would otherwise be entitled. The court must disallow both that part of the claim which has been based upon materially false and misleading averments handle so that part of the claim which would otherwise have been valid and would have resulted in an award of damages.”

The Judge also noted that Section 26 is mandatory. If it applies to the case, the legitimate parts of the claim cannot survive with only the false or misleading elements dismissed.

The full judgement can be found here:

S. Major Lacey Solicitors

Solicitor Apprentice/Legal Executive Wanted Lacey Solicitors are able to offer an apprenticeship for law students who have secured a place at either the Institute of Professional Legal Studies at Queen’s University Belfast or the University of Ulster Graduate School of Professional Legal Education. The successful candidate will be based at the Belfast Office of Lacey Solicitors in the Cathedral Quarter. The Successful applicant will be given full Apprenticeship training. The Apprenticeship begins in September 2013. The successful candidate may be offered an immediate start as a Legal Executive. The work will have an emphasis towards Defence Personal Injury work, for Insurance clients. Closing date for applications: Friday 7th June 2013 at 5pm. Applications shall be accepted by emailed CVs to damian@laceysolicitors.com

via laceysolicitors.typepad.com

Solicitor Apprentice/Legal Executive Wanted

Lacey Solicitors are able to offer an apprenticeship for law students who have secured a place at either the Institute of Professional Legal Studies at Queen’s University Belfast or the University of Ulster Graduate School of Professional Legal Education.

The successful candidate will be based at the Belfast Office of Lacey Solicitors in the Cathedral Quarter. The Successful applicant will be given full Apprenticeship training. The Apprenticeship begins in September 2013. The successful candidate may be offered an immediate start as a Legal Executive. The work will have an emphasis towards Defence Personal Injury work, for Insurance clients.

Closing date for applications: Friday 7th June 2013 at 5pm.

Applications shall be accepted by emailed CVs to damian@laceysolicitors.com

Solicitor Apprentice/Legal Executive Wanted Lacey Solicitors are able to offer an apprenticeship for law students who have secured a place at either the Institute of Professional Legal Studies at Queen’s University Belfast or the University of Ulster Graduate School of Professional Legal Education. The successful candidate will be based at the Belfast Office of Lacey Solicitors in the Cathedral Quarter. The Successful applicant will be given full Apprenticeship training. The Apprenticeship begins in September 2013. The successful candidate may be offered an immediate start as a Legal Executive. The work will have an emphasis towards Defence Personal Injury work, for Insurance clients. Closing date for applications: Friday 7th June 2013 at 5pm. Applications shall be accepted by emailed CVs to damian@laceysolicitors.comvia laceysolicitors.typepad.com

via laceysolicitors.typepad.com