Five pints too many?

The Plaintiff fell while returning home after 5.00 pm on the 18th November 2013 having visited a number of licensed premises wherein he consumed 5 pints of Guinness.  The Plaintiff was awarded €105,650 in Sligo High Court in 2017 against Sligo County Council.  The Plaintiff suffered a significant injury involving a fracture to his left distal tibia and fibular.  The Plaintiff had fallen on wet and slippery tiles in his porch of his rental Council home.  Following an appeal, the Court of Appeal ordered the issue of liability to be retried, however did not retry the issue of quantum. The Plaintiff who previously worked as a paver claimed the slippiness of the porch’s tiling and the angle of the porch to face the prevailing winds and rain caused a hazard.  The Plaintiff’s legal team alleged that the porch was constantly exposed to being wet which exacerbated the issue caused by the slippy mosaic tiles.

The Plaintiff argued he was a visitor of the council-owned house which he rented and occupied, and that the Council owed him a duty of care. Under the Occupiers’ Liability Act 1995, the Occupiers undertake a duty to take such care as is reasonable to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger due to the state of the premises.   A visitor includes:-

  • An entrant who is present on the premises of the Occupier at the invitation or with the permission of the Occupier or a member of his family.
  • A member of the Occupiers’ family.
  • An entrant who is present on the premises of the Occupier for the purpose of an expressed or implied term in a contract.

Regard may be had to the following: –

  • The care which a visitor ought to have to his own safety.
  • The extent of supervision and control that an accompanying visitor can be expected to exercise over such visitor.
  • All the circumstances of the case.

It was found that the Plaintiff was not a visitor of the Council owned house which he rented and occupied. Mr Justice John Jordan found it was “artificial” for the Plaintiff to suggest he was a visitor to the house that he rented and occupied. It was also noted that the Plaintiff was a resident of the property since 2004 and had control over the condition and cleanliness of the porch surface.  The Court found that on review of the letting agreement and the level of control the Council had over the premises it was correct to say that the Council was an Occupier however the Plaintiff too was clearly an Occupier.   However, the fact that both the Plaintiff and the Council were together Occupiers did not give the Plaintiff a cause of action against the Council under the Occupiers Liability Act.

The Plaintiff failed to prove the Council was “in any way responsible” for the accident.  The Council provided expert evidence from a Michael Morris a Professor of Surface and Interface Engineering at Trinity College Dublin and the Court was satisfied that the unglazed tile did not pose a danger on the premises.

It was noted that the Council did not argue the consumption of alcohol was an act of contributory negligence, however they argued it was a factor in regard to the Plaintiff’s duty to take reasonable care for his own safety and in his conflicting accounts of how the accident occurred.

This case is an example of the Court of Appeal endorsing a more reasonable duty on Occupiers.  However, one must ask would it have been a different result if the case involved a private landlord and if there was an issue raised, with the regard to the slippiness of the tiles, in writing in advance of the fall.

Niamh O’Connor

Loan Notes: Too good to be true?

MDM Solicitors are currently acting on behalf of multiple clients in respect of Dolphin Trust/German Property Group investments. These investments are grounded or secured by way of loan note. An investor transfers funds to a company, and in turn is issued with a loan note certificate. The status of this lone note is of some concern, however it’s security is further diluted if there are multiple companies involved, leading to a complex corporate structure. Compounding the issues in respect of these investments are the high risks, which are more often than not never outlined to the investor, coupled with the unregulated nature of the investment.

Since the last financial crash, hundreds of millions in cash have been transferred into unregulated loan note investments. These funds are not made up by the super-rich, but from the ordinary person whom is investing their life savings, nest egg, or pension for themselves or for their families future safe keeping. The difficulty is that these projects give little protection for small investors when things go wrong. The use of loan notes is common in many investment projects to raise funds, however this does not mean they are suitable for ordinary investors.

In most cases, the cash goes into commercial or residential property projects at home or abroad. However, we have recently seen investments in relation to fintech and renewable energies attract this type of structure, i.e. the investment being secured by way of loan notes. The dazzling nature of these modern investments gives the allure that they are extremely sophisticated and secure.

The attractiveness of these investments is twofold. The investor is promised amazing returns and those who advise the investor to part ways with their funds is handsomely rewarded. The majority of the investments are likely to be a viable, however investors appear to be taking on risks they would never have contemplated in the past. The question will always arise, whether they were aware and advised of these risks.

investors may be confused as the investment firms and entities involved are normally heavily regulated by the Central Bank when they sell regular investments. However, these firms are also selling loan note investments that are unregulated. Small investors have no easy come back to seek compensation if it is found they were exposed to unacceptable risks.

The blur between regulated entities and unregulated investments, the type of security offered, as well as the advice in relation to risk, are all factors involved in assessing whether a client has a potential avenue for recourse when these investments go wrong.

The difference between investor naivety and advisor negligence is never clear, however at MDM Solicitors we are in a position to consult with clients in relation to these types of investments and whether there is a potential avenue for recourse in the unfortunate event that these investments fail.

If you are an investor in any type of fund and concerned in relation to the nature of the investment, please do not hesitate to contact our offices on 021 2390620 or email us at for more information.

Lodgment and Tender – Useful Tools to Settle Disputed Legal Costs

Lodgments and tenders are frequently used in the Superior Courts to persuade a Plaintiff to settle a claim.  In terms of O. 22(6) of the Rules of the Superior Courts a Plaintiff risks paying part of the Defendant’s legal costs if a lodgment or tender is not accepted by the Plaintiff, and the amount awarded at the end of the day is less than the amount lodged or tendered.  But O. 22 only applies to the claim itself, and until recently no similar provision existed which could be used to persuade the party entitled to legal costs to settle the costs.  Following the amendment of O. 99, effective from 3 December 2019, O. 99, r.57 – r.61 now provides for a lodgement and tender regime in respect of disputed legal costs.

Although lodgments differ from tenders (a lodgment require the actual payment of money as opposed to merely an undertaking by a “qualified” party to pay in the case of a tender), any tender made in satisfaction of legal costs in terms of O. 99 r.61 shall be deemed to be a lodgment in satisfaction of costs and shall have the same effect as a lodgment.

A “qualified” party bears the meaning set out in O.22, r.14(1), and can be a Minister of Government, the Government, the State, or an insurer.  This is a closed list, and unless the party wishing to formally compromise the legal costs falls within any of the listed categories, that party is only allowed to pay the money into Court.

Lodgments and tenders are, like their O. 22 counterparts useful to persuade the party entitled to the legal costs to settle the costs.  This is mainly due to the sanction of being liable for a portion of the costs of the adjudication if the lodgement or tender was equal or greater than the amount of legal costs allowed by the Legal Costs Adjudicator.  In terms of O. 99, r. 60(2), if the lodgment or tender was not accepted, and afterwards not beaten on adjudication, the person entitled to payment of costs will only be entitled to the costs of the adjudication up to the time such tender or payment into Court was made, and conversely, in terms of O. 99, r. 60(3), the paying party will be entitled to the costs of the adjudication from the time of such lodgment or tender.

The term “costs of the adjudication” is not defined in O. 99 but Note 1 to the Notes on the Preparation of a Bill of Costs included in Form 3 of Part V of Appendix W to S.I. 584/2018, read with O. 99, r. 26(5) require a Bill of Costs to be divided into sections. Each section deals with a certain period in the life cycle of a case, and Section D, captioned “Costs incurred subsequent to trial” generally includes the adjudication costs, and can range from preparing a file for submission to a legal cost accountant for preparation of a detailed bill of costs, to attending at the adjudication of costs before the Legal Costs Adjudicator and taking up Certificate of Determination.  The part of the legal costs to which the punitive sanction applies is accordingly the portion of the legal costs allowed under Section D which was incurred after the lodgment or tender was made.  But it is submitted that the adjudication costs, for the purpose of the punitive sanction must also include the Court duties payable in terms of Schedule 6 to S.I. 492 of 2014 at the rate of 8% for every full €100.00 of the amount of legal costs allowed.  To hold otherwise would defeat the purpose of the lodgment and tender regime, i.e. to prevent the unnecessary expense of an adjudication.  This is because these duties only become payable after the Bill of Costs has been adjudicated, and before a Certificate of Determination is completed, signed and issued.  If the lodgment or tender was accepted by the party entitled to costs, the adjudication, and concomitantly these duties would have been avoided.

The new lodgment and tender regime have the potential to change the way disputed legal costs are dealt with in a significant way, and practitioners would be remiss not to investigate this process the next time their client is on the receiving end of a Bill of Costs.

Personal Injury Awards: The Tide is Turning?

It is over 6 months since the Personal Injuries Guidelines (“the Guidelines”) (as discussed in previous articles here: Judicial Council Guidelines & Judicial Guidelines)were commenced on 24th April last. The Guidelines were commenced in an effort to reduce and standardise awards in personal injuries matters, and also as a result of persistent pressure from the insurance sector, mainly policyholders. The question is whether the Guidelines have had the impact they are designed to have.

It is arguably too soon to analyse awards handed down by the Judiciary, as it takes anywhere from 12 to 24 months for a claim to filter through the Court process. Equally, we are faced with the reality that most actions taken are settled, with no data available in relation to the majority of these settlements. Therefore, analysis of the awards made by the Personal Injuries Assessment Board (“PIAB”) is key to examining whether the Guidelines have had any effect.

PIAB’s annual report, published on 27th July last (available here, is the first steppingstone in the analysis of awards under the new regime. In the three-month period following the implementation of the Guidelines, a 50% fall in the average value of awards was seen. This has set the trend across the board and has been backed up by a further PIAB report entitled ‘PIAB Personal Injuries Award Values April 24th – 30th September 2021. This report has analysed a five-month period of the current regime and the results are as follows;

  • 2,649 claims assessed pursuant to the Guidelines;
  • Average award reduced by 40% to €14,233 (including special damages);
  • General damages awards reduced by 46% to €11,808;
  • Motor Liability claims reduced by 40% from to €13,230;
  • Public Liability claims reduced by 40% to €15,697;
  • Employers Liability claims reduced by 44% to €17,203.
  • Almost half (48%) of all awards made by PIAB were under €10,000, compared to just 12% of awards in 2020.

It is clear to see that the Guidelines have had a significant impact on the level of PIAB awards to date. The Government, amongst others have welcomed this evidence of reduction in awards since the publication of the Guidelines. The question remains however, is it here to stay?

Awards are part and parcel of personal injuries actions. It does not necessarily end there. This award must be accepted by both the Claimant and the Respondent. Early indications show that contrary to what PIAB initially thought would happen post Guidelines, Claimant acceptance rates have fallen by 14% compared to 2020. This means that unless the Claimant does not wish to continue the action, the next step is to initiate Court proceedings. This brings us back to whether the Guidelines will have a long-lasting impact, and whether the Judiciary will apply them as rigidly as PIAB have to date.

To date, there have been no specific decisions in relation to quantum by the Courts. However, it is expected that cases to which the Guidelines specifically apply will come before the Courts by the turn of 2022. However, it is noted that the Guidelines were not unanimously supported by the Judiciary, with a vote of 83 to 63 of the Judicial Council on 6th March last. It is also noted that certain members of the Judiciary have stated that the Guidelines “ do not change the law”. It remains to be seen whether the tide has turned for good.

Content Moderators – The Guardians of Public Discourse

Content Moderators – The Guardians of Public Discourse

An employer is legally required to provide an employee with a safe place of work and a safe system of work. Under the Health and Safety Regulations it is the responsibility of both the company and third party agency.

If you are employed as a content moderator by a corporation with European headquarters based in Ireland, you can access justice through the Irish Courts.  For example, Facebook’s approximately 15,000 content moderators are employed through third-party contractors. As a Content Moderator you might be suffering from psychological or mental trauma because of your job, you might have remedy in law. Over the last couple of years there has been significant increase of content moderators being diagnosed with Post Traumatic Stress Disorder (PTSD).  Content moderators on daily basis are exposed to violent and disturbing content as part of their job requirement. In addition to exposure to extreme content, the content moderators must meet targets to keep their jobs. It has been reported that some content moderator companies are forcing the potential employee to sign non-disclosure agreement admitting that the job might cause PTSD. The employee does not have outlet because he or she is prohibited from disclosing any work-related stress to their superiors. There is remedy available in law for mental suffering. For example, Facebook has agreed to pay a sum of $ 52 million to all existing and former content moderators as a compensation for mental suffering that they have endured.

If any of the described has affected you or you are unsure that you can bring a claim in Ireland, contact our dedicated team and we can advise you of your rights.