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  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  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  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