Important Case in Relation to Section 26 of the Civil Liability Act
In a recent judgement delivered by Mr Justice Seamus Noonan in the case of Keating v Mulligan, the Court reaffirmed the principles governing the application pursuant to section 26 of the Civil Liability and Courts Act 2004.
This involved a Plaintiff who suffered injuries arising from an accident on a Luas tram in 2016. In the delivery of Replies to Particulars (requests for further information) the Plaintiff’s solicitors had omitted to provide details that the Plaintiff had been involved in a further accident also on the Luas on the 28th August 2017.
After two days at hearing, the Plaintiff’s solicitor sought an up-to-date medical report from the Plaintiff’s GP and the updated report disclosed for the first time that the Plaintiff has been involved in the second accident in 2017.
The Defendants sought to have the case dismissed. In bringing its application the Defendants claimed that there was fraud on the part of the Plaintiff and her solicitors.
Mr Justice Cross rejected the application and made an award of exemplary damages against the Defendant on the basis that the Defendant had gone far beyond what was required for an application under Section 26 or what was supported by the evidence.
In it’s Court of Appeal decision, Noonan J reviewed the O’Sullivan v Brozda case, which had carried out a very comprehensive and helpful analysis of the applicable authorities.
The Court accepted that in not disclosing the existence of a second accident in the Replies to Particulars in relation to the first accident, that the actions of the Plaintiff’s Solicitors were at best grossly negligent and at worst deliberate. However, it also noted that there was no incentive for the Plaintiff’s solicitor to conceal the existence of the second accident, as the evidence before the Court (which was not controverted by the Defendants) was that there was no overlap between the injuries suffered in the first accident and the second accident.
The Court upheld the decision of Judge Cross in rejecting the s.26 application to dismiss the Plaintiff’s case but also to award aggravated damages in circumstances where the Defendant had alleged fraud against the Plaintiff and the Plaintiff’s solicitor.
This decision should operate as a cautionary tale to Solicitors who are bringing a Section 26 application, in particular making an application for fraud where the facts do not support such a contention.
For further information on any personal injury or litigation matter, do not hesitate to contact Donna Phelan or Conor Cleary on 01 2960666.
