Developments since the introduction of Section 26 of The Civil Liability and Courts Act 2004

One of the most significant changes in the Law as envisaged by the Civil Liability and Courts Act 2004 was the introduction of specific provisions in respect of misrepresentation of claims.

Sections 14, 25 and 26 of the Civil Liability and Courts Act 2004 were enacted for the purpose of discouraging plaintiffs in personal injury actions and making false, dishonest and exaggerated claims for damages.

Section 14 of the Act requires all parties to personal injury actions to swear Affidavits verifying the assertions and allegations contained in the pleadings.

Section 14 (5) of the Act provides that it is a criminal offence for a person to swear a verifying Affidavit which is false and misleading in any material respect when the person swearing the Affidavit knows that it is false or misleading.

Section 25 of the Act provides that any person who dishonestly causes to be given or adduces (or dishonestly causes to be adduced) evidence in a personal injury action which is false or misleading in any material sense, shall be guilty of an offence.

Section 26 of the 2004 Act provides as follows:

“26. – (1) If, after 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.

(2) The Court in a personal injuries action shall, if satisfied that a person has sworn an Affidavit under Section 14 of the Act –

(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 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”.

Anecdotally we found that with the introduction of these particulars provisions contained within the Civil Liability and Courts Act 2004, a number of high value special damages claims were withdrawn, or where they were expected, they did not necessarily materialise.

It took a while however for the legislation to bed down and for the Courts to deal with the issue.

The leading reported case were the Court has dismissed the plaintiff’s action where the plaintiff was found to be exaggerating her claim was that of Mary Farrell .v. Dublin Bus [2010] IEHC 327.

In this case there is no doubt the plaintiff was involved in an incident which gave rise to a whiplash injury. The plaintiff claimed ongoing loss of earnings on the grounds that she had been unable to return to former employment as a Housekeeper/Cleaner with Jurys Hotel. An Affidavit of Voluntary Discovery by the plaintiff purported to discover records, notes and memoranda in respect of all of her earnings for a five year period from the 14th June to the date of Trial. The plaintiffs furnished an Actuary Report and based on her instructions the plaintiff had suffered a loss of earnings to trial at €71,000.00 and the future loss of earnings predicted to be between €161,000.00 and €343,000.00.

Because of the amounts involved the defendant successfully applied to adjourn the proceedings to adequately investigate the plaintiff’s claim for past and future loss. Subsequent to that the plaintiff swore a Affidavit in which she had averred that she had earned €280.00 in 2007 and €3,000.00 in 2008 driving a taxi. Her Affidavit was silent in relation to earnings between 2008 and March 2010.

In other words she swore two Affidavits, one in respect of voluntary discovery and one in respect of earnings, which were contradictory. The plaintiff discontinued her claim for future loss of earnings when the case was opened. Notwithstanding that, the Court found that it was satisfied that the plaintiff gave misleading evidence in the proceedings which she knew to be misleading and in material respect and in support of her claim for damages.

“That finding, on its own, requires that the Court must dismiss the plaintiff’s claim unless the dismissal of her action would result in an injustice being done”.

The Court in dealing with this aspect went on to state:

“Where, as in this claim for particular loss, (in this case the sum of €343,000.00), is simply abandoned when challenged, it is inappropriate for a plaintiff to simply proceed with his/her claim as if nothing unusual has occurred. Something unusual has occurred must be satisfied to explain to the Court.

There is an obligation, in such circumstances to the Plaintiff, preferably at the commencement of the hearing to provide the Court with an adequate explanation why the claim was advanced in the first place and whey it was abandoned. Failure to provide such an explanation will often give rise to an inference that the claim was not bone fide”.

In this case no credible explanation had been offered for the plaintiff’s failure to adduce any documentary of other evidence to support her claim for loss of earnings and to contest the defendant’s allegation that a claim had been false and misleading although she had known for some time that it would be challenged on those grounds.

Notwithstanding the plaintiff was likely to have been injured and was likely to have suffered loss of earnings, the entirety of the plaintiff’s claim was dismissed by Mr Justice Quirke.

See also Danagher .v. Glantine Inns Limited [2010] IEHC 214 where the Judge found that the Plaintiff had deliberately misled the Court (as proven by entries on the plaintiff’s Facebook Pages). The plaintiff failed in liability but the Judge indicated that the plaintiff would also have failed under Section 26.

Another example where the Court dismissed a case which was misleading can be found in a decision of Boland .v. Dublin City Council and Others [2011] IEHC 176. In that case Mr Justice Peart did not mention Section 26 but dismissed the plaintiff’s claim nevertheless and said “If a Court accepts … that the plaintiff’s account is false and deliberately so … this claim must be dismissed”. In this circumstances the plaintiff’s account in relation to the circumstances of the accident itself and special damages claim was found to be less than truthful, notwithstanding the fact that the Court accepted an incident occurred where the plaintiff had suffered a nasty injury.

One must be cautious however. In the case of Dunleavy .v. Swann Park Limited trading as Hair Republic [2011] IEHC 232, O’Neill J. when faced with a number of particular anomalies in the plaintiff’s claim the Court sought from the plaintiff an explanation and that the Judge was satisfied with the plaintiff’s explanation and accepted the plaintiff’s evidence on face value.

The Judge went on “I wish to observe that Section 26 of the Civil Liability and Courts Act 2004, 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. Great care should be taken to ensure in an discriminating way that clear evidence of fraudulent conduct in a case exists before a formal Defence is launched which could unjustly do grave damage to the good name and reputation of a worthy plaintiff”.

In this particular incident the plaintiff had claimed that she could not play golf although there was photographic evidence to suggest that she had been playing. She failed to properly disclose a previous road traffic collision in her medical evidence. She failed to disclose a history of psychiatric problems but in each single allegation that was put to her which on the face of it did appear to be allegations of false or misleading evidence, the plaintiff impressed the Judge, which is clear from the Judgment.

A very important case in respect of Section 26 and its application is that of Aherne .v. Bus Eireann [2011] IESC 44. The Judgment was delivered last Friday the 2nd December 2011, and the decision was published yesterday.

It is the Supreme Courts first reported decision on the interpretation of the Law on Section 26.

The plaintiff is a 78 year old lady who was injured whilst a passenger on a bus. Liability was not at issue.

The nature and extent of the injuries suffered by the plaintiff was disputed as was the need for a Carer as the result of the accident which formed a special damages claim of €177,000.00.

At the conclusion of the plaintiff’s claim for special damages, the claim for care into the future was withdrawn after cross-examination of the plaintiff.

The plaintiff succeed in her claim against the defendant, the High Court assessing damages and awarded general damages of €25,000.00 and pain and suffering in to the future in the sum of €15,000.00.

The High Court Ordered that the plaintiff receive costs on the basis of the Judgment however it was Ordered that the costs of the Actuary Report upon which the future care claim was illustrated and the report of the Nursing Specialist be refused.

The defendants in the action have proceeded on the basis that the conduct of the claim was fraudulent within the terms of Section 26 of the Civil Liability and Courts Act 2004 and that the claim should be dismissed. They did so on the basis they felt the plaintiff did not require the assistance of a Carer and that there was certainly no requirement as a consequence of the injuries she received as a result of the incident, that she had provided a false and misleading evidence and that an Affidavit of Verification sworn by her was false and misleading.

The plaintiff was 78 years of age. It was accepted by the Court that due to the history of her stress that she was a fragile candidate for an accident even given her age and pre-existing conditions.

The main area for contention was in respect of Care. The Court was satisfied that the plaintiff’s deterioration in her health was not accident related but did not draw any adverse findings in forming that view.

It appears that the plaintiff had noticed a deterioration in her condition and had blamed it all from the accident. The Judge sitting in the High Court did not dismiss the claim. The claim came before the Supreme Court.

The Supreme Court held that it is for a plaintiff in a Civil Action to prove their claim but where there is an allegation under Section 26 in such circumstances the onus of proof on the balance of probabilities was upon the defendant.

The Supreme Court found that the High Court Judge having heard all of the evidence and the lady’s demeanour held her to be an honest woman. The Court recognised it was bound by well-established principles in those circumstances (see Hay .v. O’Grady [1992] 1IR 2010 as to the findings of fact of a Trial Judge. The Court said “A claim under Section 26 (1) of the Act of 2004 requires that several elements be proved, including that if a plaintiff gives or adduces, or dishonestly causes to be given or adduced, evidence that is false or misleading in a material way and she knows it to be false or misleading, the Court shall dismiss the plaintiff’s action unless, there are stated reasons, that dismissal of the action would result in injustice being done. In this case there is no case for an appeal to succeed in relation to the appellant’s personal evidence, the Learner Trial Judge having held her to be an honest witness.”

That was the first aspect of the appeal based upon the evidence the lady gave at Court. The second aspect was in respect of the Affidavit evidence that she had given prior to hearing. The Supreme Court upheld the High Court Judge’s decision where he stated “The Court is also of the view that in relation to Section 26 Sub Section 2, that it has not been established that the Section 14 Affidavit was false or misleading in a material respect, or that it has been shown that the plaintiff knew it to be false or misleading. The Court must recognise in assessing the factual position, not only its view as to the plaintiff’s truthfulness but also that the accident herein unquestionably had an effect on the plaintiff’s confidence and perceived independence. As indicated above that independence was likely to be reducing even without the accident and the plaintiff’s linking of it to the accident is both understandable and in no way could be taken a deliberate intention to tell a non truth or misled. The plaintiff showed herself to be highly determined to contain her independence and it is both understandable and human that she might wish to attribute some of that loss of independence to the accident rather than the passage of time”.

The Supreme Court concluded that they were satisfied that the Learned Trial Judge approached the case correctly and considered overall that the appellant was an honest woman and did not knowingly mislead the Court. “Knowingly” is a matter to which the test is subjective. The Supreme Court will not interfere with a High Court Judge’s finding on fact in the circumstances and the Appeal was dismissed.