Author: Carrie McDermott

Delaney v Personal Injuries Assessment Board

Supreme Court, 9th April 2024

The Supreme Court has ruled, by a majority of five to two in a landmark challenge, that judge-approved guidelines slashing awards for mainly minor personal injuries have legal effect and are legally binding.

We await the decision of the Supreme Court to be published later today, the following are the key summary points:

1. The majority of the Supreme Court consider that the guidelines have legal effect. The Personal Injury Guidelines are legally binding.
2. Three Supreme Court members define standards that guidelines can only be departed from where unreasonable.
3. The majority of the Supreme Court conclude that s.7(2)g of JC Act is unconstitutional in its present form as being contrary to independence of the judiciary.
4. The majority of the Supreme Court of the court consider that the guidelines were subsequently independently ratified by Oireachtas by family leave act 2021 thus the Pi guidelines passed on 6 March are in force as a matter of law and have thereby been given legal effect.
5. The majority of the Supreme Court find that the transitory provisions of 2021 Act are not unconstitutional and that there were no vested property or personal rights vindicated under any other earlier guidelines than those passed by Judicial Council.

Supreme Court Orders:

• A declaration that s7(2)g is unconstitutional in current form.
• A declaration that the guidelines on 6 March 21 were given force of law by family act 2021 and are consequently in force.
• ⁠A declaration that PIAB acted properly and in accordance with law by applying guidelines in May 2021
• An order that save for declaration of unconstitutionality the appeal is to be dismissed and order of costs made
• Presumptively given these orders that the appellant’s costs to be made against Ireland and the AG

We await the published decision later today to provide a comprehensive review.

 

The High Court has stayed personal injury proceedings until the Plaintiff submits to examination by a further expert orthopaedic surgeon retained by the Defendant despite opposition on the basis of “expert-shopping”.

Mr Justice Holland observed that there was no direct authority as to whether a Defendant is entitled to obtain a second opinion from a certain medical specialty and whether the Plaintiff was obliged to submit himself to examination by that second expert, but recognised that the test is one concerned with fairness and the interests of justice having regard to all the circumstances.

The Court supported the Defendant’s submission that the Plaintiff was confusing the prohibition on calling more than one expert of a given specialty under Order 39, Rule 58(3) of the Rules of the Superior Courts 1986 with the process of disclosure of reports and the question of whether a party is entitled to retain multiple experts of a certain specialty before deciding which (if any) of them to call as a witness.

The Judge stated: “There is no reason, for example, why a Defendant should not retain multiple engineers to inspect a locus of an accident and decide ultimately which of them if any to call as a witness. Indeed, the Defendant makes a reasonable point that, as a Plaintiff is not dependent upon the Defendant’s cooperation in that regard, a Plaintiff can bespeak reports from various doctors — even of the same specialty — before deciding which of them to disclose and thereafter to call as witnesses.”

Agreeing with the Defendant’s reliance on Defender Limited v HSBC Institutional Trust Services (Ireland) Ltd. [2018] IEHC 543 in which Twomey J. accepted that the “one-expert rule” deals with the admission of evidence and not the delivery of expert reports, the court emphasised: “What makes the position as to doctors… different is that the Defendant’s examination is dependent upon the Plaintiff’s cooperation, so the Plaintiff is in a position to object. A Plaintiff…waives certain of his or her rights of privacy as to his or her medical condition… That waiver is however, limited by the scope of the reasonable requirements of the Defendant. What is reasonable depends on all the circumstances assessed in the context of the Defendants’ constitutional rights as to its conduct of the litigation.”

Noting the Plaintiff’s contention that the Defendant’s motion was designed to permit “expert-shopping”, Mr Justice Holland stated that:

“there is no definition of, or black letter rule in terms against, expert-shopping. The parties were unable to cite any Irish cases explicitly addressing the phrase… While it is to be deprecated, questions of degree arise. There is no rule that a party, plaintiff or defendant, in investigating a case is bound irrevocably by the opinion of the first expert consulted. Litigation is adversarial and, within bounds, legitimately tactical. To say that a proposed course of action is driven only by tactical considerations is not to say, necessarily, that it is forbidden.”

Conclusion

Accordingly, the Court stayed the proceedings pending the examination of the Plaintiff by Professor Harty.

 

The High Court recently ordered that a couple which was still living together could in fact satisfy the statutory requirement of living apart, owing to the fact that they lead wholly separate lives to one another.

The parties had reached a compromise and signed an agreement, however, were unsuccessful when they applied to the Circuit Court to have the terms of settlement ruled.  The Applicant appealed to the High Court as she had been diagnosed with a serious illness and the prognosis for the future was bleak.

The parties were married in 2004 and commenced living separately in July 2017 although they continued to live under the same roof. There were two children of the marriage, both teenagers.

Both the parties and the Court agreed that the said Agreement constituted proper provision and that there was no reasonable prospect of reconciliation between the parties.  Although living in the same house, the High Court was satisfied that the parties ought to be considered as living apart due to the following:

• The Applicant had her bedroom upstairs and the Respondent had his downstairs;
• The evidence was that they stay in their bedrooms mostly except when they have to eat, and they do that separately;
• There was no intimate or committed relationship for years and the parties did not spend time together when in the family home;
• The parties did go on holidays in 2018 because the children wanted to go however, they subsequently had taken the children separately on holidays;
• The Respondent spent a lot of time away approximately four days in the week and
• The parties rarely spoke, looked after their own laundry and they avoided using the kitchen at the same time and ate their meals in their respective bedrooms.

Justice Jordan stated that “if a couple can be considered as living apart from one another while living in the same dwelling, provided that they are not living together as a couple in an intimate and committed relationship… it is difficult to see any principled objection to a similar arrangement continuing by agreement after a decree of divorce is granted.”

Concluding that the settlement terms would afford “a solution that will minimize stress and upheaval in a family where the mother has a serious illness”, the court granted the decree of divorce.

Link to the Judgment https://www.courts.ie/acc/alfresco/a3199503-4424-4696-8651-2921f19e319d/2023_IEHC_748.pdf/pdf#view=fitH

If you require any support or advice in relation to the above, please call the office on 021 239 0620 or email niamh@mdmlaw.ie or conor@mdmlaw.ie and a member of our team will be able to assist you.

Follow us on Instagram  and Linkedin to stay up to date.

Legal Perspectives on Irish Government Initiatives: Help to Buy Scheme and First Home Scheme

In recent years, the Irish Government has endeavoured to facilitate entry into the housing market for first-time buyers through strategic measures such as the Help to Buy Scheme and the First Home Scheme. These schemes have acted as a bridge in the gap between rising property prices and the challenges associated with saving for a deposit.

Help to Buy (HTB) Scheme:

The Help to Buy Scheme is tailored to individuals seeking to purchase their first property. The Help to Buy scheme offers a substantial financial support, providing for a tax refund of up to 10% of the purchase price or a maximum of €30,000; whichever is lower. The scheme assists in meeting the property deposit by offering a refund of Income Tax and Deposit Interest Retention Tax (DIRT) paid over the preceding four years. Joint purchasers, such as couples, can collectively leverage the scheme to access the maximum available amount.

Eligibility requires applicants to qualify as first-time buyers, having not previously purchased or constructed a property in Ireland. This requirement thus targets those yet to enter the property market. It must be noted that specific limits on property value apply, with a maximum market value of €500,000 for Dublin properties and €450,000 for outside the Dublin region.

Applying for the Help to Buy Scheme can be done by using the Revenue Online System (ROS). Once an application has been approved, the tax refund is paid directly to the applicant’s bank account (in the case of self builds) or the qualifying contractor/builder (in the case of new builds).

The Help to Buy Scheme stands as a valuable resource for first-time buyers, alleviating financial barriers and facilitating entry into the property market. A welcome term of the 2024 budget has extended the Help to Buy Scheme until the 31^st of December 2025.

First Home Scheme (FHS):

The First Home Scheme is a cost-effective housing initiative primarily aimed at supporting first-time homebuyers. Employing a shared equity format, the First Home Scheme contribute to the property’s overall purchase price in exchange for a stake in ownership. Designed to aid first-time buyers, the First Home Scheme extends its eligibility to individuals following divorce, separation, or insolvency proceedings under the Government’s ‘Fresh Start Principle’.

The First Home Scheme utilises an equity shared model, wherein the contributed percentage of equity translates to ownership until the property is sold or the amount is repaid. The fluctuating nature of the owed amount is noteworthy due to the equity interest being a percentage rather than a fixed sum. This equity share shall be noted on the Folio and registered as an Inhibition.

The repurchase of equity can be accomplished through a lump sum or affordable instalments, contingent on a valuation by an approved First Home Scheme valuer to ascertain an accurate amount due to be paid back.

While simultaneous utilisation of the Help to Buy Scheme and the First Home Scheme is feasible, it should be noted that the maximum First Home Scheme percentage provided is 20% when availing of the Help to Buy Scheme in the same transaction. If you do not avail of the Help to Buy Scheme, the First Home Scheme can provide up to 30% of the purchase price.

Should you wish to learn more about the Help to Buy Scheme, the First Home Scheme and the first steps in purchasing your first home, please call the office on 021 239 0620 or email jack.byrne@mdmsolicitors.ie and a member of our team will be able to assist you.