Confusion reigns in Personal Injuries sphere
In or around late 2021, Mr Justice Michael Twomey expressed concern in relation to settlements and in particular consent orders which resulted in the amount being refunded (on foot of certificates of recoverable benefits) to the Department of Employment Affairs and Social Protection. In the case of Fahy v Padraic Fahy Tiling Contractors Ltd he expressed concern in relation to the practice of securing consent orders which reduced the amount paid by an insurance company to the Department by way of refund of benefits paid to an injured party.
In a case in late 2022, in Kuczak v Treacy Tyres [Portumna] Ltd he went further a refused to grant a ‘consent order’ which had been agreed between the plaintiff and the defendant, the effect of which was that the defendant i.e. the insurance company was only 50% liable for the recoverable benefits (RBA).
The insurance company asked the court whether it would permit them to ask the Minister whether she considered the terms of the consent order to be sufficient. Not surprisingly, the Minister (who was being adversely affected by such consent orders) expressed the view that these types of consent orders did not satisfy the Act.
This has thrown the matter of personal injury settlements into a state of flux in circumstances where it will make settlements much more difficult if in every case the insurance company is obliged to refund the entire amount of recoverable benefits.
Subsequent to the Twomey decision there have been a number of further decisions of the High Court namely by Mr Justice Barr in a case of Wilson v Leonard and Another and Mr Justice Paul Coffey in a case of Jarmula v DSG Solutions Ltd. both of whom have disagreed with the position taken by Mr Justice Twomey in the Kuczak case.
In the Wilson case Mr Justice Barr expressed the view that it was in order for the Court to grant a consent order ‘provided there was some rational and fair basis for making those determinations’. In this he used the analogy of infant rulings.
In the Jarmula Case Mr Justice Coffey expressed the view that if parties came to an agreement it could mean that they could agree positions on negligence, causation and quantum and he did not believe it was appropriate for the Courts to put itself in the position where it was rejecting these ‘consent orders’ and compelling the parties to incur significant further legal fees in litigating the matter.
It should be pointed out that that there are a number of reasons why an insurance company and plaintiff might reach agreement as to why the amount to be refunded to the State in respect of recoverable benefits would be lower i.e. where there is a dispute in relation to quantum or where all of the social welfare payments were not directly related to the accident in question.
It is probable that the positions taken by Mr Justice Barr and Mr Justice Coffey will be the preferred positions taken by the Courts in future but it is indeed unfortunate that Judges in the High Court have taken different positions in relation to an issue of such importance as this creates huge uncertainty for lawyers in advising their clients and makes settlements of personal injury cases more difficult for all parties involved.
For further advice in relation to litigation matters please do not hesitate to contact Conor Cleary or Brendan Dillon on 01 296 0666.
