Insights

Unless Orders have been in operation now since being formally introduced by Statutory Instrument 490 of 2021, which was commenced on 13th November 2021.  This Statutory Instrument amended the Rules of the Superior Courts with the intention of expediting proceedings and limiting the number of Motions, and the repetition of Motions, in the Court lists where parties would be seeking orders for judgment in in default of appearance/defence or to strike out an action for want of prosecution for failure to deliver a statement of claim.  The process is applicable to both Plaintiffs and Defendants and the Orders made set out strict time limits for delivery and filing of such documents.

Where a party was not able to comply with the Order, or failed to do so, and had their case dismissed or judgment in default was obtained Order 27 Rule 15 provides the following:

“(1) Any order dismissing the plaintiff’s action for want of prosecution, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the failure special circumstances (to be recited in the order) existed which explain and justify the failure.

(2) Any judgment by default, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and where an action has been set down under rule 9, such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down.“

SPECIAL CIRCUMSTANCES

The reliance upon special circumstances was discussed in the judgement of Mr Justice Ferriter in   Da Souza -v- Liffey Meats [2023 IEHC 402] dated 11^th July 2023 . In this case, the Defence solicitor had been taking instructions from his client, had raised further and better particulars, was in the course of obtaining an expert report, and had written to the Plaintiff’s solicitor to express some surprise that a motion had been issued for judgment in default defence where there had been on delay to that point. On consent an unless Order was obtained allowing a period of 10 weeks for the delivery of the Defence.  Critically, the Defence solicitor was not aware that the Order made was an “unless order”. To compound matters, the barrister instructed to draft the Defence had personal difficulties of a tragic nature. The Court considered whether ”special circumstances” existed which would explain and justify the failure, but also questioned whether “special circumstances” under the rule is to be treated not just at the date the Court made the order, but also at the date of the judgment by default. This was an approach adopted by a majority in the Supreme Court in McGuinn v. Commissioner of An Garda Síochána [2011] IESC 33. Judge Ferriter took the view that Supreme Court case supported the view he had taken in this case that the question of special circumstances arose, on the facts of this case, at the date of the judgment by default.

The Judge stated, “a more demanding set of reasons or circumstances is required than under the old regime, as part of a general tightening of approach to compliance with deadlines and expedition of litigation in light of the constitutional and Convention imperatives of ensuring that justice is administered efficiently and expeditiously.” He went on to note that “the general point remains that to treat a mistake or inadvertence by a solicitor as to the period ordered by a court for delivering a defence, failing which judgment will follow, would risk undermining the rationale for the rule being that of ensuring greater compliance with deadlines and court orders and ending the old culture of lax approaches to court-imposed deadlines and indulgence of disregard for court orders on procedural matters…. generally speaking, a solicitor mistake or inadvertence as to the terms or existence of an order for judgment in default (including an unless order) will not amount to special circumstances within the meaning of the rule. ”

The Court ultimately did find that the tragic circumstances which befell the Barrister, within the period issue, meant that he was not able to attend to this practice, and therefore explained and justified the default. The fact that the case had been fully defended up to that point, and a Motion to set aside the order had issued quickly indicated that it was also in the interest of justice that the Order be set aside.

RECENT CASE LAW AND COMMENT

In an unreported (and unapproved) Judgment of Ms Justice Brett delivered on the 11^th July 2024 we have become aware of, similar matters fell for her consideration where a Plaintiff had obtained judgment in default of appearance against a Defendant. The case concerned an incident at the All Ireland Hurling final in August 2018.   It was noted that the solicitors for the Plaintiff had not only progressed the proceedings on the Plaintiff’s behalf, but also in their warnings to the Defendant in connection with the impending motion, and interacting with who the solicitor believed to have been the Defendant’s insurers/broker at the time. To compound matters the Defendant had changed its registered address and only notified the CRO after the Plenary Summons had issued.  The Defendant was aware of the proceedings and had passed same for the attention of their insurance broker. The Plaintiff’s solicitor continued to engage in correspondence with the Defendant’s insurance broker, and the Plaintiff ultimately obtained an unless order against the Defendant. A copy of the Order with proof of service occurred after the judgment had come into effect. A Motion to set the order aside was issued approximately 8 months after the order was perfected.

The Judge noted that this is a case in which inadvertence of a solicitor was not in issue, but rather an intermediary between the Defendant and a solicitor, and that the failure to nominate solicitors for such service resulted in no Appearance being entered on behalf of the Defendant. She accepted that there was a qualitative difference between a solicitor and others involved in the litigation process, but noted in so far as insurers cannot be said to be unfamiliar with the litigation process, they are not solicitors.  The Judge noted a series of errors had occurred over a period of time; the receipt of the proceedings due to a change of registered address, confusion over which insurer covered the incident, a change in brokers occurring after the incident, and the Defendant’s belief that they had fulfilled their obligations under the policy of insurance by notifying its insurers of the communications received from the Plaintiff’s solicitor.

The Judge found that there were “special circumstances” in that the Defendant had notified its broker but also because the omission to enter an Appearance on behalf of the Defendant was not an omission made by legal advisors. She went on to state that the circumstances of this case included confusion in respect of the precise insurer cover relevant to the date of the Plaintiff’s claim, and a change in both insurance broker and insurer at different times between the incident and the receipt of the proceedings. The Defendant had demonstrated on Affidavit that it had a good defence to the Plaintiff’s claim and in the interests of justice the judgment obtained in default of Appearance should be set aside.

There was of course a cautionary passage in the judgment directed at insurers and insurance brokers, which might become unwittingly involved in the litigation process by not instructing solicitors. While Judge Brett noted the qualitative difference between a solicitor and others, this should not be considered a ‘get out of jail free card’ for insurers or insurance brokers but rather ‘an opportunity to give a timely warning… that proper attention must be given’.

 

COLLINS -V- PARM & ORS | 2022 2006 P

The Court of Appeal has reduced a damages award, finding it “so disproportionate as to amount to an error of law.” Mr. Justice Seamus Noonan criticized the High Court judge for not considering the Personal Injury Guidelines, introduced in 2019 to standardize injury awards.

The High Court judge identified that her dominant injury was psychiatric and that her post traumatic stress disorder (PTSD) had upended almost every aspect of her life for many months, although the position has improved. He awarded €55,000 general damages for this and an “uplift” of €40,000 for her other injuries. The Defendants, insured by AXA Insurance, admitted partial liability but argued contributory negligence since Collins was not wearing a seatbelt. The High Court Judge found her 15% responsible for her injuries.

The Defendants appealed the High Court award, arguing it was excessive, inadequately explained and a departure from the 2019 Guidelines.

The original award of €99,162 was cut to €59,162 by the Appeal Court, with a further 15% reduction for contributory negligence, resulting in a final award of €50,287 to Courtney Collins. The Appeal Court noted that the Defendants had not referenced the Guidelines or comparative cases themselves.

Engineering Inspections are invaluable for Litigation Solicitors like us, providing crucial insights into the causes of accidents. Regardless of whether we represent Plaintiffs or Defendants, these inspections offer a deeper understanding of the case at hand.

In litigation, it is common for Claims Handlers representing defendants to attend such inspections, and rightfully so. Their presence allows for a comprehensive analysis of the accident’s dynamics, revealing both its strengths and weaknesses.

We firmly advocate for a collaborative approach during inspections, rejecting the notion that engineers dictate the proceedings. Solicitors play a pivotal role in directing engineers, ensuring a balanced perspective.

Moreover, attending Engineering Inspections greatly facilitates briefing legal counsel. To effectively instruct counsel, Solicitors must grasp the accident’s mechanics and context fully. By participating in inspections, we can convey explanations in a manner accessible to legal professionals, free from technical jargon.

Historically, objections to Solicitors attending inspections were rare. However, recent trends have seen defendants attempting to prevent Solicitor involvement.

A notable case illustrating this was the recent case of Murphy v. Stryker, the defendant initially resisted the presence of a Solicitor during inspection. However, after arguments were presented, Mr. Justice Coffey of the High Court ruled in favour of granting inspection facilities to both the engineer and the Solicitor, recognizing the importance of their roles.

We trust that this decision has effectively resolved the issue, affirming the right for Solicitors to participate in Engineering Inspections.

The Law Reform Commission has put forth a 1,000-page report today, unveiling a proposed statutory and regulatory framework for adult safeguarding. After thorough examination of current domestic laws and policies, along with a comprehensive review of adult safeguarding frameworks in various jurisdictions, the Commission presents two draft bills: the Adult Safeguarding Bill 2024 and the Criminal Law (Adult Safeguarding) Bill 2024.

Findings reveal that existing statutory bodies have limited capacity to intervene in cases of abuse or neglect involving at-risk adults, as evidenced by notable incidents like those at Leas Cross, Áras Attracta, and in cases involving the ‘Grace’ case, the ‘Brandon’ case, and the ‘Emily’ case over the past two decades.

The Commission suggests imposing safeguarding duties on service providers, requiring them to manage their services to prevent harm to at-risk adults, conduct risk assessments, and draft adult safeguarding statements. Additionally, it advocates for the establishment of a social work-led Adult Safeguarding Body with statutory responsibilities for promoting the health, safety, and welfare of at-risk adults. Furthermore, it proposes expanding the regulatory oversight of existing bodies like HIQA and the Mental Health Commission.

Further recommendations include statutory protection for individuals reporting harm to at-risk adults in good faith, along with mandatory reporting duties for certain occupations and professions. Additionally, the Commission proposes the introduction of four new criminal offenses: intentional or reckless abuse, neglect, or ill-treatment of a relevant person; exposure of a relevant person to risk of serious harm or sexual abuse; coercive control of a relevant person; and coercive exploitation of a relevant person.

In conclusion, the proposed legislative reforms outlined by the Law Reform Commission mark a significant step towards bolstering protections for at-risk adults in our society. By introducing comprehensive safeguarding duties, establishing dedicated oversight bodies, and introducing new criminal offenses, these measures aim to ensure the safety, dignity, and well-being of vulnerable individuals. Implementation of these recommendations promises to instigate a paradigm shift in how we approach adult safeguarding, fostering a culture of accountability, vigilance, and respect for the rights of all members of our community.

Olabode Cole v Fima Developments Ltd and Michael Behan    

The Plaintiff in this case was seeking damages of up to €60,000 arising from a Road Traffic Accident on the 22^nd of March 2019, near Heuston Station.  The Defendant’s Insurer, Zurich instructed MDM Solicitors and Frederick Gilligan BL to full defend the matter.

The accident occurred at the traffic lights outside of Heuston Station, directly before the Luas line.  The Plaintiff alleged that the Defendant collided with his vehicle, thereby causing him to suffer a soft tissue injury to his lower back.  In addition, the Plaintiff claimed that he now suffered from nervousness, anxiety, sleep disturbance, and a soft tissue injury to his left knee.

The Plaintiff claimed that while stopped at the traffic lights, in the bus lane, that the Defendant attempted to cross into the left lane and drove into the rear of the Plaintiff’s vehicle.  While originally, an independent witness was willing to cooperate with the Plaintiff’s version of events, he did not give evidence at the hearing of the action.

It was the Defendant’s case that the Plaintiff’s vehicle was travelling in the bus lane, and when the traffic lights turned green, the Plaintiff tried to squeeze in front of the Defendant and entered the Defendant’s Lane.  During cross examination the Plaintiff admitted, that he had at the time been driving for 13 months and had failed his driving test on two occasions.

Ultimately, the Honorable Judge Ní Chúlacháin did not find for the Plaintiff and therefore, dismissed the Plaintiff’s case with costs to the Defendant.