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Cite as: [2015] IECA 34
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 34
Appeal No. 14/685 [Article 64 Transfer] Peart J. Hogan J Mahon J. Laurence Flynn Plaintiff/Applicant - and -
Finbarr Desmond Defendant/Respondent Judgment of Mr. Justice Alan Mahon delivered on 26th February 2015 General The compromise of the High Court proceedings 3. On 12th October 2009 the Defendant filed a Notice of Motion seeking an order that the Plaintiff’s claim was statute barred by operation of s. 46(2) of the Civil Liability Act 1961, a provision which applies a two year limitation period to a claim for personal injury arising from a maritime accident. 4. At or about this time, a settlement meeting was arranged between the parties. The Plaintiff was not legally represented, nor indeed had he been at any time in the course of these proceedings. The settlement meeting took place on 12th November 2009. The Defendant was represented by his solicitor, on the instructions of an insurance company. The opportunity to obtain legal advice was declined by the Plaintiff. At this meeting a settlement of the action was agreed, submitted to writing, and signed by the Plaintiff. The written agreement provided as follows:-
1. Acknowledge full and final settlement in the entity of these proceedings in the sum of €5,000 to include general damages, special damages and any outlays incurred. 2. I hereby undertake as a term of settlement that I will file and lodge, in the Central Office of the Four Courts, and serve on Conways Solicitors, 35 South Terrace, Cork, a Notice of Discontinuance within fourteen days of the receipt of the cheque. 3. I hereby enter into this settlement agreement in full knowledge that no admission of liability has been made. 4. I hereby confirm that I will agree to this agreement being entered into in the strictest terms of confidentiality and that I will not discuss this claim and its subsequent settlement with anyone. I sign this agreement in the full knowledge and understanding that I have been invited to consult with an independent legal advisor prior to signing this document but I have waived this right and I am happy to do so with the full knowledge as to the consequence and import of this agreement. Signed: Laurence Flynn Dated the 12th November 2009 6. Approximately twenty four hours later on 24th December 2009, the Plaintiff again wrote to the Defendant’s solicitor advising him that he had again changed his mind and, effectively, rejected the settlement. On this occasion he complained that he had not been given sufficient time to obtain legal advice, and that he had been pressured into a settlement under threat of future legal action against him. He returned the cheques totalling €5,500. 7. On 5th March 2012, the Plaintiff served a Notice of Intention to Proceed on the Defendant’s solicitors. 8. By Notice of Motion dated 31st May 2012, the Defendant applied to the High Court for, inter alia, “an order declaring that the within action has been compromised by agreement made between the Plaintiff and the Defendant and the payment of the agreed sum by the Defendant to the Plaintiff which was received and accepted by the Plaintiff in satisfaction and discharge of the Plaintiff’s claim.” Two affidavits were filed in relation to the Motion which was heard on 21st November 2012. One affidavit was sworn by Mr. Dermot Conway, the Defendants solicitor. It provided a brief summary of the Plaintiff’s claim and its agreed settlement following a meeting between the Plaintiff and himself on 12th November 2009, and it exhibited, inter alia, a copy of a written settlement agreement (“the agreement”) signed by the Plaintiff, and in which it was stated that he, the Plaintiff, accepted €5,000 in settlement of his action (this figure was later increased to €5,500). The second affidavit was that of the Plaintiff. In his affidavit the Plaintiff made a number of averments, including the following:-
• That the 12th November 2009 agreement had been entered into between the Defendant and himself. • That he had abandoned the agreement because it was unfair to him. • That he had not had an opportunity to avail of legal advice at the time he entered into the agreement. The Plaintiff’s affidavit exhibited a number of medical reports and communications with medical practitioners, and extracts from medical journals. 9. The Plaintiff’s Notice of Appeal lists a number of grounds of appeal relating to the judgment of the learned High Court judge. These can be usefully summarised as follows:
• He did not fully comprehend the nature of the agreement he had entered into. • The confidentiality clause in the agreement was “near impossible” to fulfil. • The injury was more serious than originally believed, and this aspect of the case had not been afforded sufficient weight by the learned High Court judge. • That in the circumstances, Article 40.3.1 of the Constitution permitted him to change his mind in relation to the agreement 11. Essentially, the Plaintiff’s Appeal is focussed on his contention that the learned High Court judge failed to recognise and accept that the written agreement of 12th November 2009 had been entered into by him in circumstances where, having regard to all the facts, it amounted to an unconscionable or improvident bargain, and that he was not afforded a reasonable opportunity to obtain legal advice. In support of this contention, the Plaintiff points to, as he sees it, the seriousness of the injury and the devastating consequences of that injury in relation to his inability to work. The medical reports, coupled with the explanation of the difficulty the Plaintiff now has in relation to his right arm and hand certainly indicate the existence of a significant disability, and a disability such as would be expected to negatively impact on his ability to work. 12. In the course of his judgment the learned High Court judge observed:-
14. Undoubtedly there were good reasons for the Plaintiff to settle his claim; albeit for relatively small compensation. His agreement to settle could not be said to be imprudent or unwise. While it is certainly possible that the engagement of a solicitor by the Plaintiff might have resulted in a better outcome for him, it could certainly not be said that such would have been probable. A solicitor engaged by the Plaintiff would have identified the potential difficulties in the litigation and may well have advised the Plaintiff to settle the claim, if possible. It is certainly possible that a solicitor acting for the Plaintiff, and acting in his interests, would have advised him to accept an offer in the region of €5,000, and it could not be said that such advice was anything other than good advice. 15. In this case the Plaintiff chose to institute his proceedings and to process his litigation for a period of approximately five years before entering into the agreement to settle, and it is apparent that the Plaintiff, without legal training, did so with considerable competence. It is also apparent (and which is acknowledged by him) that the Plaintiff had an awareness, at least, of the very real possibility that in the event that he was to fully contest his claim it might fail, or would result in a reward of relatively small damages. It was in this frame of mind that he attended the settlement meeting on 12th November 2009, and at that meeting agreed to settle his claim for €5,000, and that furthermore, approximately one month later, and having had some doubt about the fairness of the agreement, proceeded to confirm the agreement, subject to an additional €500 being paid. 16. The absence of legal advice will not usually prove fatal to a contract, but may do so in certain circumstances. In Lloyds Bank v. Bundy [1974] Q.B.326 at 339, Lord Denning M.R., stated the following:
18. It is true, of course, that the plaintiff is a litigant in person, But this in itself cannot be a reason for allowing the settlement to be undone, for if it were so, it would mean, in effect, that no settlement with a litigant in person would ever be final. It must also be recalled, moreover, that the plaintiff accepts that he was advised that he should seek independent advice prior to concluding the settlement. 19. A court will usually go to considerable lengths to assist lay litigants and will allow considerable latitude to them in stating their case. In doing so, however, a party with legal representation should not be unfairly penalised because his opponent does not have legal representation: see RB v. AS [2002] 2 IR 428 In McGill v. Ulster Independent Clinic and Others [2010] NICA33 Girvan LJ, commented as follows:
20. It is evident that the Plaintiff has a significant disability in his right arm and hand, and that his ability to work has been adversely affected. It is also the case that his claim for compensation, which is the subject matter of these proceedings, carried with it a risk that the claim was statute barred, or, if successful, would, if the matter was to have proceeded to a full hearing, attract relatively small damages because of the difficulty in establishing that the medical difficulties that now afflict the Plaintiff in relation to the use of his right arm and hand were caused, either directly or indirectly, by his accident in September or October 2004. 21. These potential difficulties with the claim were identified by the learned High Court judge in his judgment of 21st November 2012. There were also known to the Plaintiff at the time he signed the agreement to settle the litigation on 12th November 2009, and again when he reaffirmed his agreement to settle towards the end of December 2009. It cannot be said that the Plaintiff’s agreement to settle his claim for a figure of (in total) €5,500 was unwise. I am also satisfied that the absence of legal advice to the Plaintiff at the time of his agreement to compromise these proceedings does not, in the circumstances of this case, undermine that agreement. Therefore, these proceedings have been compromised and have concluded. 22. The Plaintiff’s appeal is therefore dismissed, and the Order of the High Court affirmed. |
