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