News and Updates

IRL: Discovery by other means. Does the existence of legal proceedings between a data requestor and a data controller preclude a data requestor making an access request under the Act? In the case of Bus Atha Claith/Dublin Bus (the Appellant) .v. The Data Protection Commissioner (the Respondent) the High Court considered an Appeal from the decision of the Circuit Court which had upheld a decision of The Data Protection Commissioners to issue an Enforcement Notice requiring the Appellant to prevent a copy of CCTV footage to a personal injury claimant. The claimant had allegedly fell on a bus. She made an application to the Injuries Board. She also made an access request pursuant to Section 4 of The Data Protection Act 1988 (as Amended) for release of CCTV footage of the incident. Her solicitors had previously attended at the Office of the Appellant and viewed the CCTV footage. The Appellant rejected the Application on the grounds that any such information was prepared in anticipation of potential litigation and was as such privileged. The personal injury claimant notified the Data Protection Commissioner who instigated an investigation into the matter. Shortly after a Personal Injury Summons was issued in The High Court by the personal injury claimant. The Data Protection Commissioner subsequently issued an Enforcement Notice requiring the Appellant to provide a copy of the CCTV footage to the alleged injured party. The Appellant appealed the decision to The Circuit Court which upheld the decision of The Data Protection Commissioner. Bus Atha Claith/Dublin Bus Appealed that decision to The High Court on a point of law. The Appellant submitted that once... read more

NI High Court dismisses injury claim against local Authority- Child injured at bonfire site morning after bonfire. This is an interesting case. Mr Justice Stephens accepted the novel Defence of the local Authority that they were prevented from accessing a Bonfire site (which was clearly their property) to make it safe, due to the threat of intimidation/violence from those at the site of the smouldering bonfire. Unfortunately a 12 year old child suffered a very serious eye injury from a firework left at the site. His case was dismissed. You can access the Judgement here: http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2012/... read more

IRL Recent cases in PI litigation- Part 7 APPLICATION TO SET ASIDE THIRD PARTY NOTICE- Delay In O'Halloran v Fetherson & Ors Mr Justce McEochaidh refused an application to set aside Third Party Proceedings. Holding that the delay on behalf of the defendant who issued the proceedings not to be unreasonable, and that there was little prejudice to the Third Party, the application was refused. Although its not a PI case it is useful. The Judgement is here... read more

IRL Recent cases in PI litigation- Part 6 EXTENSION OF TIME TO SERVE PLENARY SUMMONS Mr Justice Herbert in Aherne v MIBI extended time to serve to serve a 2001 Plenary Summons where the the prejudice to the Applicant far outwighed any prejudice against the Respondent had the application been declined. There is extensive commentary on the precedent case law in the judgement here... read more

UK Insurers prepare for G-Day, as Gender equality rules kick in. 1. Article 5 of Council Directive 2004/13/EC of the 13th December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (“The Directive”) regulates the use of actuarial factors related to gender in the provision of insurance and other related financial services. Article 5 (1) provides that, for new contracts concluded after the 21st December 2007, the use of gender as an actuarial factor in the calculation of the premiums and benefits must not result in differences in individuals premiums and benefits (“The Unisex Rule”). Article 5 (2) provided for derogation from this rule by allowing member states to maintain proportionate differences in individuals premiums and benefits were the use of gender was a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. 2. The European Court of Justice (“ECJ”) was asked to rule on a challenge from a Belgian Consumer Association asking whether the exemption in Article 5 (2) of the Directive was compatible with the prohibition under discrimination on the grounds of gender enshrined as a Fundamental Right of the European Union. In the case the ECJ ruled that exemption was invalid. It granted a transitional period of relief for implementation. The transitional period ends on the 21st December 2012. From then, it will be unlawful to use gender related factors for determining premiums and benefits under insurance policies. National Governments of member states who opted to apply Article 5 (2) of the 2004 Directive (of which the... read more

Fraud and Personal Injury in Ireland. 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... read more

IRL Recent Cases in PI litigation-part 5 NEGLIGENCE AND THE BURDEN OF PROOF In Mokom .v. Dublin Bus [2010] the High Court dismissed a claim for damages against Dublin Bus taken by a pedestrian who suffered life threatening brain injuries after she was struck by a bus. In this action the plaintiff appears to have stepped onto the road and been struck by the bus. She claimed that Dublin Bus was negligent in that the bus was travelling an excessive speed that it failed to stop, swerve or slow down to avoid the collision. She also further claimed that the bus failed to keep a safe distance from her and that there was a failure to keep a proper lookout for her presence on the roadway. Dublin Bus argued the plaintiff was the author of her own misfortunate and pleaded contributory negligence, that the plaintiff walked into the bus, failed to look before stepping off the footpath and onto the road, gave no indication of her intention and had no reasonable regard for her own safety. Notwithstanding the very serious injuries (the plaintiff suffered a brain injury) Mr Justice Quirke in agreeing to dismiss the action said it was inescapable that the plaintiff had been walking along a path when she suddenly turned and walked into the side of a bus within the space of three seconds, that it was regrettable that she could not remember the accident. The plaintiff’s claim was... read more

IRL Damages and the Book of Quantum. The Courts approach. Damages and The Book of Quantum Section 22 of the Civil Liability and Courts Act 2004 provided that in assessing the level of damages to be awarded the Court was to have regard for The Book of Quantum. Section 22 is entitled “Matters to be taken into account by the Court when assessing damages.” It provides: (1) The Court shall, in assessing damages in a personal injuries action, have regard to The Book of Quantum. (2) Sub Section (1) shall not operate to prohibit a Court from having regard to matters other than The Book of Quantum when assessing damages in a personal injuries action. (3) In this section “Book of Quantum” means the Book of Quantum required to be prepared and published by The Personal Injuries Assessment Board under the Act of 2003. Notwithstanding the provision of Section 22, one notes that from a negotiation Perspective, it is hardly referenced when attempting to settle cases and further it is extraordinarily broad in its sweep of categories and of awards per injuries making it difficult to follow. One case of interest in this area is that of O’Brien .v. Derwin and Other [2009] IEHC 2. In the case Judge Charleton rejected the notion that The Injuries Board Book of Quantum was out dated, where the plaintiff representatives tried to assert that inflation should apply to the Book of Quantum. Charleton J went further and noted the prevailing economic circumstances and suggested that those circumstances may indeed have a deflationary affect upon compensation figures. The obvious difficulty with the Book... read more

IRL Developments re cap on General Damages DEVELOPMENTS IN RESPECT OF THE SO CALL “CAP” ON GENERAL DAMAGES In Sinnott .v. Quinnsworth Limited [1984] ILRN 523 the Supreme Court in Ireland indicated that when approaching general damages for catastrophic injuries the Court should bear in mind that “A limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which pertain in our society”. The Court in the Sinnott condemned a Jury award of IR£800.000.00 Punts that the plaintiff had been rendered quadriplegic. General damages had been amended from IR£800,000.00 Punts to IE£150,000.00 Punts. That was in 1984 and was considered to be an appropriate limit or cap. In the case of McEneaney .v. Monaghan County Council [2001] IEHC 14 the Court raised the so call cap and was of the view that a new yard stick for general damages in such cases was €300,000.00 although the Court did observe that in this regard it might be erring on the side of conservatism. In the case of N .v. M which involved sexual assault over an extended period culminating in rape a Jury in the High Court awarded €600.000.00, reduced by the Supreme Court to a lessor sum of €350,000.00 (2005 case). The Court in N .v. M went to great lengths to examine the factors which must be taken into consideration when dealing with such an award in a catastrophic injury case. In Myles .v. McQuillan [2007] IEHC 333 the Court held that in assessing general damage in a catastrophic injury case the Court must consider the full... read more

IRL recent cases in PI litigation – part 4 PASSENGER IN A DRINK DRIVER VEHICLE The case of Hussey .v. Twomey and Others [2009] IRSC 1 is a decision of the Supreme Court and very important decision in respect of persons injured whilst passengers in a vehicle driven by driver under the influence of drink or drugs. In that case the Supreme Court upheld the previous decision whereby the passenger was found to be 40% negligent in allowing himself to be carried in the vehicle in the circumstances. The passengers damages were assessed and automatically reduced by 40% in the circumstances. The level of knowledge and the conduct of the parties leading up to the incident will very much determine what level of reduction is to be made. This is a very useful case... read more

IRL recent cases in PI litigation- part 3 CONCURRENT WRONG DOER The very recent case of Lindsay .v. Finnerty and Others [2011] IEHC 403 is interesting. Peart J examined the law relating to concurrent wrong doer. It relates to the so called one per cent rule. In this case there were two impacts in succession. It was difficult to establish which impact was responsible for which injuries in the circumstances notwithstanding the insured party was guilty of having been 20% responsible with the uninsured party being 80% responsible, the insured was considered to be a concurrent wrong doer. In the circumstances the plaintiff was entitled to recover entirely from the insured motorist who was 20%... read more

IRL recent cases in PI Litigation-part 2 TIME LIMITS It is often thought that the date of knowledge of a condition as a result of an incident is the pertinent date from which time begins to run. In the case of McCoy .v. Keating [2011] IEHC 260 is interesting. McGovern J held that a plaintiff’s claim for damages for nervous shock was statute barred on the grounds that the plaintiff knew in the immediate aftermath of the accident that the plaintiff had suffered such a reaction – but prior to being diagnoses with... read more

IRL recent cases in PI litigation-part 1 REMOTENESS AND CAUSATION In the case of Ward .v. Sheridan [2010] IEHC 308 Lavin J dismissed the husband’s claim for damages. The husband underwent a vasectomy because of the injuries to his wife and an accident had made it very dangerous for her to become pregnant (she lost a baby in the accident). The plaintiff’s claim was... read more

UK Supreme Court Awards compensation to Claimant who clearly lied to exaggerate claim.

  The UK Supreme Court whilst holding that it has thejurisdiction to strike out a claim for abuse of process has declined to do so inan injury action where the claimant accepted that he had made statements oftruth which he knew to be false and where the trial Judge had held that theevidence was sufficiently quoted to sustain a claim of fraud not only applyingto civil standard but also the criminal standard.   The case of Fairclough Holmes Limited (Appellant) v Summers(Respondent) concerns an accident at work.  The claimant suffered afracture to his right scaphoid and a complicated ankle fracture.   In August 2007 the County Court gave Judgment for theclaimant on liability with damages to be assessed at a later date. Between October 2007 and September 2008 the Defendant Appellant subjected theClaimant to covert surveillance which revealed that the Claimant was grosslyexaggerating the effect of his injuries and incapacity to work.   The insurers did not show their hand at that stage and byDecember 2008 the Claimant served a Schedule of Loss claiming damages of£838,616.00 including a claim for loss of earnings up to October 2008. Having received that claim, the Defendant Appellant disclosed its surveillanceevidence to the Claimant’s representatives and amended its Defence assertingthat the claim was dishonestly exaggerated and should be struck out in itsentirety.  The Claimant subsequently served two further Schedules of Lossvaluing the claim at a greatly reduced figure of approximately£250,000.00.  All the Schedules of Loss were supported by “Statements ofTruth”.   The trial on damages took place in January 2010.    The Claimant did not challenge the surveillanceevidence.  The Judge held that there was no... read more

IRL. High Court assesses Damages for Injury for accident in France- using the French Approach

The High Court in the case of Peter Kelly .v. Groupama was asked to assess damages which the Plaintiff suffered whilst on holiday in Cannes and struck a van, the property of the Municipality of Cannes (insured by Groupama). The Defendant was the insurer of the van and was sued by directly under the Provisions of the European Communities (Fourth Motor Insurance) Directive incorporated into Domestic Law by Statutory Instrument Number 651 of 2003. By virtue of Regulation 864/2007 EC, better known as Rome II which came into force on the 11th January 2009 and which introduced general principles applicable to non contractual obligations, the substantive law applicable to the assessment of damages in this case is French Law. O’Neill J had the daunting task of assessing damages, applying French Law where the Plaintiff had suffered a nasty fracture of the head of the femur where necrosis had led to a total hip replacement for the Plaintiff who was in his seventies. The Court, whilst bound by having to assess the matter in French Law noted that French Judges enjoyed an unfettered discretion contained within the methodology of assessment of damages and that reference to a Book of Quantum was merely a non obligated practice. The Court heard evidence from a French medical expert who had suggested that general damages would be worth €38,706.00. The Court in exercising its discretion could not subscribe to that view and made an award of €63,500.00 in respect of general damages. As a foot note, although the Court had an unfettered discretion, it does appear that notwithstanding the fact that the award was... read more

IRL High Court assesses Contributory Negligence at 50% in accident at work, injury case

The case of Fanning .v. Myerscough and Myerscough http://bit.ly/JWmvwo concerned an accident at work where the Plaintiff sued for personal injury which occurred as he alighted from a tractor during the course of his employment at a Stud Farm. The Court found that the tractor door had slammed on the Plaintiff and on balance that it was due to a defect. The Court considered the issue of contributory negligence (the Plaintiff having alighted from the tractor by walking forwards as opposed to backwards).   The Court said:  “The onus on an employer seeking to establish contributory negligence is higher when the employee has proven breach of statutory duty as compared with common law negligence. There is of course a duty on every employee to take care of his own safety”.  The Plaintiff’s own engineer acknowledged that the Plaintiff had alighted from the tractor the wrong way. This left the Plaintiff in a precarious unbalanced position. The Plaintiff was aware the door was defective and was further aware of the correct way to go down the stairs. On that point the Court said: “The latter point is so obvious that I believe an experienced man like Mr Fanning might well have considered it to be insultingly patronising if he had been told how to get down out of a tractor”. The Court assessed contributory negligence at 50%, which in this writers experience is a very high degree  in terms of Contributory Negligence in an Employers Liability... read more

IRL High Court dismisses Personal Injury Action where Plaintiff misled The Court

The recent decision of Judge Smyth in the case of Nolan .v. Mitchell and Another [2012] IEHC 151 is yet another decision which examined the applicability of Section 26 of the Civil Liability & Courts Act 2004. Section 26 of the 2004 Act provides as follows: “26-(1) If, after the commencement of this section, a plaintiff in a personal injuries 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, (c) 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.” (3) for the purpose of this action, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.” In this case, under normal circumstances the Plaintiff would have been entitled to have recovered damages on the basis that the Defendant was found to be 60% culpable for a road traffic collision which gave rise to significant injury to the Plaintiff. The Judge,... read more

IRL High Court latest: Plaintiff Personal Injury claim arising from road-rage incident dismissed

The following blog concerns the case of Carr v Olan & Doran [2012] IEHC 59  is authored by Adam Shaw. The case is reported here http://bit.ly/HchaDo  Adam has been on work experience at Lacey Solicitors from Portora Royal School Enniskillen. Portoras past pupils include Oscar Wilde and Samuel Beckett, both famous past bloggers.   Aggressive driving sparks ‘road rage’ catastrophe! Plaintiff’s personal injury claim dismissed by Mr Justice Hogan in High Court hearing held on 15th March 2012.   The plaintiff Mr Carr, a keen motorcyclist and musician, suffered extensive injuries as a result of a dispute with another road user. The incident unfolded at midday on Tuesday 22nd January 2008, as the plaintiff made a chance encounter with the first defendant on a major roundabout. Mixed claims from both parties suggest careless driving from the other which resulted in evasive action required to avoid a collision. However, following both the plaintiff and the first defendant leaving the roundabout at their respective exits, the plaintiff took the  decision to turn around his motorcycle and head in pursuit of the first defendant. Under these circumstances, one can only speculate why the plaintiff took such evasive action, despite already having given the defendant a few hand gestures to remember whilst at the roundabout!   That aside, evidence suggests, the plaintiff, foot to the floor, caught up with the first defendant who was already 250 metres in the opposite direction. Yet despite two lanes of oncoming traffic on the other side of the road, the plaintiff maintained pursuit of the first defendant and allegedly ‘thumped’ the driver’s window, as described by a witness, and banged on the wing mirror.... read more

IRL- High Court awards self litigant €90,000 in Injury at work action

KELLY .V. BON SECOURS HEALTH SYSTEM LTD [2012] IEHC 21 HIGH COURT AWARDS PLAINTIFF PERSONAL LITIGANT €90,000.00 IN PERSONAL INJURY ACTION AGAINST EMPLOYER The Plaintiff who represented herself in these proceedings (report here http://bit.ly/Axmi4w) claimed damages for personal injury in respect of an incident in August 2004 when she twisted her back at work whilst carrying files. In addition the Plaintiff’s claim for injury included the loss caused by harassment, bullying, abuse, intimidation and discrimination in the course of her employment. On the issue of the incident causing low back injury the Plaintiff claimed that she was forced to carry bundles of charts which were excessively weighty. The Defendant did not call evidence from the employer but from an Engineer who gave evidence that the volume in weights being carried by the Plaintiff was not excessive. The Engineer did agree however that the Manual Training Regulations were mandatory and that it was a breach of the statutory duty not to adhere to such Regulations (it appears that they did not so adhere). Mr Justice Cross held that the Defendant was negligent and in breach of statutory duty in respect of this part of the claim. In terms of the claim for bullying and harassment the Court first sought to clarify some terms. It acknowledged that there was no separate tort of bullying or harassment and that the Defendant as an employer of the Plaintiff owed a duty of care not to expose their employee to injury and that one of the sub-aspects of this may be a question of bullying and harassment. The Court referred to the Judgment of Fennelly... read more

IRL Supreme Court Allows Employers Appeal in injury action

  by Damian McGeady   The Supreme Court in Coffey v Kavanagh [2012] IESC 18 http://bit.ly/zlQNvr has allowed an Appeal in a claim for personal injuries arising out of an accident at work where The High Court awarded damages in full to the Plaintiff.  The Plaintiff was employed by the Defendant/Appellant as a Shop Manager. She alleged she was caused to trip over a box in the office area of the Defendant/Appellant’s premises and suffered a fracture to her wrist. She sued her employer by reason of the negligence and breach of duty in failing to provide her with a safe place of work and in causing the office area of the premises to become cluttered, unsafe and dangerous. The Defendant/Appellant denied negligence and claimed that the injuries were caused at the Plaintiff’s own negligence in failing to have adequate regard to her own safety. The Trial Judge found entirely against the Defendant employer. On the issue of contributory negligence the Trial Judge held that the Plaintiff/Respondent was not guilty, and said; “It has been contended on behalf of the [Appellant], that the [Respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury. I do not accept that contention. I accept the evidence of the [Respondent] … that during busy periods, the floor of the office area within the [Appellants] premises regularly became cluttered. I also accept [the Respondent] that she drew this to the [Appellants] attention from time to time and that nothing was done by the [Appellant] to reduce the risk of injury to the... read more

IRL SUPREME COURT RULES AGAIN ON SECTION 26 Goodwin v Bus Eireann

By Damian McGeady   The Supreme Court has dismissed an appeal on the Application of Section 26 of the Civil Liability and Courts Act 2004. In a Judgment delivered last week the Supreme Court dismissed the Appeal by the Defendant, Bus Eireann. The Defendant had sought the dismissal of the Plaintiff’s claim in its entirety on the grounds that the Plaintiff had fraudulently exaggerated her claim. The judgement can be found here http://bit.ly/wS6t3u.   This is the second Supreme Court Judgment in as many months on Section 26 of the Civil Liability and Courts Act 2004, and the Court in this instance adopted the same approach. The first decision was Ahern v Bus Eireann [2011] IESC 44 (see here http://bit.ly/xtWEiE).   There is a heavy burden upon the Appellant in these cases and whether the Judge dismissed the claim or allowed it at first instance, it is clearly difficult to succeed on Appeal.   In his Judgement Mr. Justice Fenelly said; “In the absence of a finding from the Trial Judge that the Plaintiff, in this case had knowingly given false or misleading evidence, it is impossible for the Defendant to succeed. She was the Judge who heard all the witnesses, apart from those who gave evidence on commission, and, especially, heard the Plaintiff whose evidence was at issue. This Court cannot substitute itself for the Trial Judge in the assessment of credibility of witnesses”.     Whether you act for the Plaintiff or the Defendant, if a Section 26 Application is not favourable at trial, it would be wise, given the dictum of the Supreme Court in this case to think very... read more

IRL High Court Section 26 Application- Dismissal of Personal Injuries case- Review by Damian McGeady FOLAN .V. Ó’CORRAOIN AND OTHERS [2011] IEHC487 This is a personal injuries claim; The Plaintiff was an apprentice who it is alleged fell and suffered an injury on the 5th April 2007. The first named Defendant was a roofing contractor and the Plaintiff’s Employer on a site which it was claimed was under the control of the second named Defendant Company whose Directors were the other Defendants. The Defendants denied liability (nobody witnessed this incident). They further attempted to rely on the failure of the Plaintiff to serve a letter of claim as required by Section 8 of The Civil Liability and Courts Act 2004, within two months from the accrual of the cause of action. They further alleged contributory negligence. The Plaintiff’s evidence is set out in a very lengthy written Judgment by Justice Murphy http://bit.ly/AdPaFL . It is fair to say that there were a number of inconsistencies with the Plaintiff’s evidence in terms of the accident circumstances but also in terms of the injuries that were allegedly sustained. For example the Plaintiff appeared to have an inexplicable limp and was using a crutch for no apparent reason, despite the fact that he had not sought medical attention from his own General Practitioner for several years. He also appeared to lead a very active life which belied the description of the injuries sustained. The Court assessed the credibility of the Plaintiff and relied on the statement of Lord Pearce in the House of Lords case of Onassis .v. Pergottis [1968] 2 Lloyd’s... read more

NI Pleural Plaques Compensation update

Pleural Plaques Compensation is available in Northern Ireland again.     Given the traditional history of heavy industry in Northern Ireland it is no surprise that asbestos related conditions have traditionally been the subject of litigation here.    The House of Lords Decision in Rothwell .v. Chemical and Insulating Co Ltd [2007] UKHL 29 decided that the mere presence of pleural plaques did not constitute injury which could give rise to a claim for damages.  Up to then, Plaintiffs claiming upon diagnosis of pleural plaques had been recovering moderate amounts of damages.    On foot of the Rothwell decision The Scottish Parliament passed The Damages (Asbestos – related conditions) (Scotland) Act 2009. It provided that asbestos related pleural plaques and certain other asbestos related conditions did constitute personal injury and were actionable under Scots Law.    The insurance industry sought to challenge the validity of that Act on two fronts, namely;   1.       That it is incompatible under Article 1 of Protocol 1 of the European Convention of Human Rights and therefore is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998; and   2.       That it is open to judicial review as an unreasonable, irrational and arbitrary exercise if a legislative authority of the Scottish Parliament.   The Supreme Court on Appeal from the Scottish Court of Session dismissed the Appeal.   It held that in order for such an Act to comply with Article 1 of Protocol 1 of the European Convention on Human Rights it must be shown that the Act was pushing a legitimate aim and was reasonably proportionate to that... read more

GB Justice Minister has no intention of banning insurers settling claims directly with injured third parties

Speaking in the House of Lords in the civil litigation reform debate yesterday Lord McNally ruled out banning the practice known as Third Party Capture. He said ‘Third-party contact does not, in itself, cause detriment to consumers and may be to their advantage as a claim can often be resolved quickly. ‘In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim, and this in turn reduces costs for all policyholders.’ Lord McNally was reacting to Liberal Democrat Peer Lord Thomas of Gresford, who had tabled an amendment to the Legal Aid, Sentencing and Punishment of Offenders bill calling for the practice to be... read more

Serious allegations that spot-hire rates were “made up”

The Court of Appeal in England has given a Credit Hire company leave to launch contempt of court proceedings against seven former employees of a company, whose job it was to investigate, on behalf of insurance companies, spot hire rates of hire cars in areas where accidents occurred, it has been reported here. The Accusation is that the employees had given evidence alleging research that actually did not take place at all, and may have ‘infected’ up to 30,000 cases. The Court (Lord Justice Moses sitting with Mr. Justice Irwin) ordered that the documents in the case be sent to the attorney-general, Dominic Grieve QC. The attorney-general has been given three months to come to a decision as to whether a criminal prosecution should be... read more

Court of Appeal, Republic of Ireland: CoA reaffirms strict test in considering Financial Services Ombudsman cases

Court of Appeal reaffirms strict test in considering Financial Services Ombudsman decisions The recent decision in the Court of Appeal case De Paor -v- Financial Services Ombudsman reaffirms the stringent test which must be adopted by the High Court in considering decisions of the Financial Services Ombudsman. The appellant joined Quinn Healthcare’s (the Provider) medical expenses insurance scheme. In August 2008, she was diagnosed with breast cancer and underwent surgery. She contacted the Provider following surgery, to enquire about cover for her further treatment, and in particular, a course of radiation. She was advised by the Provider that this treatment would not be covered under her Personal Care Plan, but that if she transferred to a Family Care Plan for a slightly higher premium, she would be covered for the specific form of radiation required. On the basis of this advice, the appellant agreed to change her policy to a Family Care Plan and proceeded with her medical treatment. It subsequently transpired that she would require chemotherapy before the radiation treatment – when advised the Provider of the change she was informed that she was not covered for either radiation or chemotherapy as her cancer was considered to be a pre-existing illness. The Provider ultimately agreed to cover her for eight sessions of chemotherapy but refused to cover her for radiation treatment. The appellant complained that by failing to honour the assurances given to her and classifying her condition as pre-existing, the Provider caused her inordinate stress and worry in relation to payments for various elements of her on-going cancer treatment and forced her to suspend further treatments required... read more
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