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 long before appealing *(mindful of time limits, of course).

Obiter Dictum ; There is one other interesting matter arising from the Judgement. On the first line of the written Judgement Fenelly J. wrote;

“The defendant on this appeal seeks the radical remedy of the dismissal, in its entirety, of the claim of a plaintiff, who admittedly suffered serious injuries at its hands in a road traffic accident for which it admits liability”

Is it an insight to the thinking of the court to describe the provision of Section 26 as radical. I wonder is it good radical or bad radical?