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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doyle v Donovan [2020] IEHC 119 (28 February 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC119.html
Cite as: [2020] IEHC 119
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Page 1 ⇓
THE HIGH COURT
CIRCUIT APPEAL
[2020] IEHC 119
2019 No. 130 CA
BETWEEN
MICHAEL DOYLE
AND
MARIE DONOVAN
JUDGMENT of Mr. Justice Garrett Simons delivered on 28 February 2020
PLAINTIFF
DEFENDANT
INTRODUCTION
1. This matter comes before the High Court by way of an appeal from the Circuit Court. The
proceedings are personal injuries proceedings in which the plaintiff seeks damages in
respect of injuries said to have been received in a road traffic accident on 1 August 2017.
2. This is the second of two judgments delivered in the matter by the High Court. The
damages, and (ii) the question of whether the plaintiff was entitled to aggravated
damages. This second judgment is addressed to the costs of the proceedings.
3. For the reasons set out in detail in the principal judgment, the plaintiff has been awarded
€25,000 in general damages, but has not been awarded aggravated damages. In
circumstances where the plaintiff succeeded in obtaining an award of damages in excess
of the jurisdiction of the District Court, the general rule, i.e. that costs follow the event,
applies and the plaintiff is entitled to his costs before the Circuit Court and of the appeal
before the High Court.
4. The dispute between the parties centres on the appropriate measure of costs. In
particular, the plaintiff seeks costs on the higher scale of “legal practitioner and own
client” basis, rather than the normal “party and party” basis. It is said that costs should
be awarded on the higher scale so as to mark the High Court’s disapproval of the manner
in which the defence of the proceedings has been conducted.
5. The response of the defendant is to say that in deciding whether to make an award of
costs on this higher basis, the court must have regard to the plaintiff’s conduct. It is
alleged that the plaintiff exaggerated his claim by including receipts for medication which
was not intended for his use. When pressed on this, leading counsel for the defendant
conceded that the value of the alleged exaggeration is in the order of thirty euros.
6. For the reasons set out herein, I propose to make an order directing that the costs be
paid on the “legal practitioner and client” basis.
THE CONDUCT OF THE DEFENCE
7. To assist the reader in understanding the dispute which has now arisen in respect of
costs, it is necessary to rehearse briefly the manner in which the defence of the
proceedings was conducted. Before turning to this task, however, it should be noted that
the appeal from the Circuit Court comes before the High Court pursuant to the provisions
Page 2 ⇓
of section 38 of the Courts of Justice Act 1936 (as amended). Such an appeal is heard by
way of a rehearing of the action. It is unusual, therefore, for the High Court to refer in
any detail to the proceedings before the Circuit Court. It should be emphasised that this
is only being done in the present case in circumstances where it is relevant to the overall
conduct of the litigation, and, in particular, to the question of what order should be made
in respect of the costs of the Circuit Court.
8. The proceedings were instituted before the Circuit Court, and sought damages for
personal injuries said to have arisen out of a road traffic accident on 1 August 2017. The
accident was said to have occurred in circumstances where the defendant’s motor vehicle
“rear ended” the plaintiff’s motor vehicle.
9. The Personal Injuries Defence delivered in the proceedings contains a plea to the effect
that the plaintiff had deliberately caused the collision. As required under the Courts and
Civil Liability Act 2004, the defendant, Marie Donovan, swore an affidavit verifying the
assertions or allegations pleaded.
10. The relevant part of the Personal Injuries Defence reads as follows.
“4. PARTICULARS OF NEGLIGENCE/CONTRIBUTORY NEGLIGENCE
If the Plaintiff sustained the alleged or any personal injuries, loss and damage,
which is denied by the Defendant, the same was solely caused by the Plaintiff’s own
negligence; alternatively, the Plaintiff was guilty of contributory negligence as
follows:–
(a) Violently braking his vehicle on the public highway and thereby causing an
emergency situation resulting in the Defendant colliding into the rear of the
Plaintiff’s vehicle.
(b) Failing to indicate his intention.
(c) Deliberately causing the collision complained of.”
11. The solicitors acting on behalf of the plaintiff had sought clarification of this plea by way
of letter dated 29 November 2018.
“We note the Defence as filed by you herein. Could you please let us know whether
the Defendant contends that the collision was set up by the Plaintiff for the purpose
of defrauding the Defendant and/or her insurer of compensation.”
12. The solicitors acting on behalf of the defendant responded as follows by letter dated 28
December 2018.
“Further to your letter of the 29th of November 2018, the Defence as delivered
speaks for itself and the evidence of the Defendant will be given at the trial of the
action in respect of the Defence delivered.”
13. In the event, the defendant did not adduce any evidence in support of the plea that the
collision had been deliberately caused. Whereas liability had been in issue before the
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Circuit Court, there was no suggestion in the defendant’s evidence-in-chief to the Circuit
Court that the collision had been other than an accident. On cross-examination, the
defendant declined to stand over the plea that the collision had been deliberately caused.
The most that was suggested in evidence is that the plaintiff had braked suddenly, and
that this may have been negligent.
14. The transcript of the relevant part of the cross-examination of the defendant reads as
follows. (The transcript has been obtained by the defendant pursuant to an order of the
Circuit Court).
Q. But the last line of the defence says: ‘The plaintiff deliberately caused the collision
complained of.’ There is a vast difference between sudden and deliberate
[braking], so I’m asking you at what point you changed your mind in relation to the
circumstances of this accident?
A. I have never suggested to anybody that the person in front of me stopped
deliberately.
Q. You have sworn an affidavit verifying the content of your defence?
A. No.
Q. That affidavit was sworn by you on the 24th of October 2018 and specifically refers
to the defence. I take it you read the defence before you swore that affidavit?
A. Yes.
Q. But you didn’t refer to the fact that the last line of the defence says that the
plaintiff deliberately caused this accident?
A. I suppose I read it but I didn’t note that line in particular. All I know is that he
stopped very suddenly.
Q. Well, do you want to withdraw that now? Or do you want to stand over it? If you
do want to stand over it, I want to ask you then why is it you [say] this was
deliberate as opposed to a sudden braking?
A. I can’t say that Mr Doyle stopped on purpose. I do know he stopped suddenly and
that’s all I can say.
Q. When were you interviewed by – who are your insurers?
A. Aviva.
Q. Yes. How many times where you interviewed by Aviva in relation to this accident?
A. Once.
Q. Right. Who interviewed you in relation to the accident?
Page 4 ⇓
A. A gentleman called David, an insurance investigator.
Q. Did you at any stage say to David – whoever his name is – at Aviva that this
accident was deliberately caused by the plaintiff?
A. No, I did not.
Q. No?
A. No.
Q. Have you at any stage since you had that interview had any other contact with
either your insurers or the solicitors that they’ve retained to act for you in this
case?
A. They just got in touch with me to say that this case was being taken to court and
could I attend.
Q. You have no idea how the word ‘deliberate’ got into that defence and you are not
suggesting that the plaintiff deliberately caused this collision?
A. I don’t know how it got into – yes.
Q. But you’re not stating it?
A. I’m not stating that, no.”
15. The position since adopted by the defendant before the High Court on appeal has been to
concede liability. The defendant was not called to give evidence. The hearing before this
court on 12 December 2019 thus proceeded as an assessment of damages only. For the
reasons set out in the principal judgment, an award of €25,000 by way of general
damages was made in favour of the plaintiff.
THE CIRCUIT COURT’S APPROACH TO COSTS
16. Subject always to the caveat that the appeal comes before the High Court by way of a
rehearing of the action, it may nevertheless be instructive to have some regard to the
manner in which the Circuit Court addressed the issue of costs. If nothing else, it
indicates that the defendant had been put on notice that the conduct of the defence was
unsatisfactory.
17. The Circuit Court had determined the action on the basis that, whereas the defendant was
liable for the accident, the plaintiff had failed to prove that he had suffered any personal
injuries as a result of the accident. The “event” thus went in favour of the defendant, and
in the ordinary course the defendant would have been entitled to an order for costs in her
favour. However, the Circuit Court refused an application for costs on the part of the
defendant because of the plea that the accident had been deliberately caused (see pages
99 and 100 of the transcript of the Circuit Court hearing). The Circuit Court had earlier
criticised the conduct of the defence as follows (see pages 96 and 97 of the transcript).
Page 5 ⇓
“[…] as far as responsibility for the collision goes, the car that hit from behind in
this case does bear responsibility for the collision. And I do note that the allegation
– well, it was sworn to and it was sworn to by the defendant – is that the plaintiff
deliberately caused and staged this accident.
The affidavits of verification work both ways, when a defendant or a defendant’s
version of events swear to the truth of an assertion in the defence and it isn’t borne
out in – and they don’t actually believe it, that is a reasonably serious matter. And
the defence really should not have conducted this case on the basis that this was a
deliberately staged accident, when that wasn’t going to be evidence that was ever
going to be offered.* And an affidavit of verification indicating that was the
evidence that was going to be offered should not have been sworn. So, as far as
the responsibility of the accident goes, although I’ve a higher degree of sympathy
with the defendant perhaps than the plaintiff because I think the plaintiff didn’t
drive in an ideal manner but didn’t create a situation which was difficult for the
defendant. I think the primary responsibility in law to avoid this accident did rest
upon the defendant. So, as far as the accident goes, I’m satisfied that the
defendant was responsible for the accident.”
*Emphasis (italics) added.
18. The reference to an affidavit of verification is to the obligation imposed upon a defendant,
by section 14 of the Courts and Civil Liability Act 2004, to swear an affidavit verifying any
assertions or allegations contained in their pleadings.
DISCUSSION
19. The approach adopted by the defendant for the purposes of the appeal to the High Court
was to concede the issue of liability. The appeal proceeded as an assessment of damages
only. In the event, a sum of €25,000 was awarded to the plaintiff by way of general
damages.
20. For the reasons set out in the principal judgment, I concluded that this was not an
appropriate case in which to make an award of aggravated damages. My conclusion in
this regard was informed primarily by a consideration of the statutory scheme under the
Civil Liability and Courts Act 2004, and, in particular, the penalties prescribed under the
legislation for the giving of false evidence. The parties were, however, invited to make
submissions as to whether any award of costs should be on a “legal practitioner and
client” basis. The matter was adjourned for a number of weeks until Friday, 14 February
2020. The parties each delivered very helpful written legal submissions in advance of the
adjourned date.
21. Leading counsel on behalf of the plaintiff had been sharply critical of the manner in which
the defendant had conducted the litigation. It was submitted that the plea that the
plaintiff had deliberately caused the collision was tantamount to an allegation of fraud and
criminality on the part of the plaintiff. The implication of the plea is that the plaintiff had
deliberately caused a road traffic accident with a view to his making a fraudulent claim for
Page 6 ⇓
damages against the defendant. This plea was unsubstantiated. The High Court was
invited to make an award of costs on a “legal practitioner and client” basis to mark the
court’s disapproval of the manner in which the defence had been conducted.
22. The parties were both agreed that the legal principles governing the award of costs on a
higher scale are as set out in the judgment of the High Court (Barniville J.) in Trafalgar
Developments Ltd. v. Mazepin [2020] IEHC 13. This magisterial judgment reviews all of
the relevant authorities, and then formulates the following statement of the legal
principles.
“(1) The normal position is that where costs are awarded against one party in favour of
on other, those costs will be taxed or adjudicated on the party and party basis.
(2) The court has a discretion to depart from the normal position in the particular
circumstances of the case, where the court thinks fit to do so, and to direct that the
costs be taxed or adjudicated on the solicitor and client basis.
(3) There has to be a good reason for the court to depart from the normal position and
to make an order for costs on the solicitor and client basis (or on the even more
severe basis, the solicitor and own client basis).
(4) The court may exercise its discretion to order costs on the solicitor and client basis
where it wishes to mark its disapproval of or displeasure at the conduct of the party
against which the order for costs is being made.
(5) The conduct in question can include:–
(a) A particularly serious breach of the party’s discovery obligations;
(b) An abuse of process by that party in commencing and maintaining
proceedings for an improper purpose or for an ulterior motive, designed to
seek a collateral and improper advantage;
(c) The failure to exercise the requisite caution in commencing proceedings
making claims of fraud or dishonesty or conspiracy without ensuring there
exists clear evidence supporting a prima facie case in relation to such claims;
(d) Any other conduct in relation to the commencement or conduct of the
proceedings, or any aspect of the proceedings, which the court considers
merits be marked by the court’s displeasure or disapproval, such a
particularly serious or blatant breach of a court order, the directions of the
court or the Rules of the Superior Courts.
(6) In considering whether the conduct of a party is such that the court should exercise
its discretion to make an order for costs on the solicitor and client basis, the court
should:–
(a) Clearly identify the particular conduct or behaviour of the party which is said
to afford the basis for the court exercising its discretion to award costs on the
solicitor and client basis;
Page 7 ⇓
(b) Carefully examine and consider the explanation (if any) offered by the party
for the conduct or behaviour in question;
(c) Carefully consider and examine the consequences (if any) of the conduct or
behaviour in question for the other party, whether in terms of delay or costs
or any other form of prejudice to that party;
(d) In light of the above, determine whether, in all the circumstances, it would
be appropriate and in the interests of justice to award costs on the solicitor
and client basis under O. 99, r 10 (3).
(7) While a failure to comply with the provisions of the Rules of the Superior Courts or
of a direction or order of the court will normally merit the award of costs against
the party in default, such costs will normally be awarded on the party and party
basis. It will generally only be if the breach or failure to comply is of a particularly
blatant or serious nature, having serious consequences for the other party, that the
court will be justified, in the exercise of its discretion, to award costs on the
solicitor and client basis (or, exceptionally, on the solicitor and own client basis).”
23. I respectfully adopt the foregoing summary from Trafalgar Developments Ltd. v. Mazepin
as a correct and comprehensive statement of the legal principles governing the award of
costs on the higher basis, i.e. on what is now known as the “legal practitioner and client”
basis.
24. As appears, one of the circumstances which might trigger an award of costs on the higher
basis is where a party makes a claim of fraud or dishonesty against the other side without
ensuring there exists clear evidence supporting a prima facie case in relation to such
claim. This is the complaint which the plaintiff makes against the defendant in the
present case. The defendant had put forward a plea in her defence to the effect that the
collision had been deliberately caused by the plaintiff. Notwithstanding that she had been
asked to clarify the plea in subsequent correspondence, the defendant, through her
solicitors, declined to do so. The plea was only resiled from for the first time during the
cross-examination of the defendant before the Circuit Court. (The relevant extract from
the transcript has been set out at paragraph 14 above).
25. Notwithstanding that the defendant has been on notice, from at the very latest the date
of the ex tempore ruling of the Circuit Court, that the plea should not have been made,
no attempt has been made to amend the pleadings nor to correct the verifying affidavit
filed by the defendant in support of her Personal Injuries Defence. No explanation has
ever been offered by the defendant, or her insurer, Aviva, as to how the plea that the
collision had been deliberately caused came to be included in the Defence. The absence
of an explanation is very concerning in circumstances where the defendant’s own
evidence before the Circuit Court strongly suggests that the plea had been included on
the initiative of the insurance company, and not of the defendant herself. It will be
recalled that Ms Donovan’s sworn testimony to the Circuit Court had been to the effect
that she had never said that the accident had been caused deliberately.
Page 8 ⇓
26. As explained earlier, the parties had a number of weeks within which to prepare their
submissions on the question of whether costs should be awarded on the higher basis.
Rather than take this opportunity to provide an explanation or apology for the
unsubstantiated plea that the accident had been caused deliberately, the defendant
instead decided to make a new allegation against the plaintiff. Specifically, it was alleged
that the plaintiff had attempted to promote an “unmeritorious claim for special damages”
by having included a number of receipts for an over-the-counter medicine (solpadeine)
amongst the documents vouching his claim for special damages. It was alleged that this
medicine had been purchased not for his own use, but for the use of a family member.
When pressed on the extent of the alleged exaggeration of the claim for special damages,
leading counsel for the defendant conceded that it was less than thirty euros.
27. This attempt to introduce a new allegation against the plaintiff post-judgment was ill-
advised. It had formed no part of the defendant’s case at the hearing on 12 December
2019 to say that the plaintiff had deliberately exaggerated his claim for special damages.
The pharmacy receipts now sought to be relied upon had not been put into evidence. No
submission was made to me to the effect that there was a dispute as to the measure of
the special damages. Rather, as appears from page 19 of the principal judgment, I had
been left with the impression that the special damages had been agreed. It was never
put to the plaintiff in cross-examination that he had deliberately exaggerated his claim for
special damages. It follows, by analogy with the approach taken to section 26 of the
Courts and Civil Liability Act 2004 by the Court of Appeal in Nolan v. O’Neill [2016] IECA
298, that if a party wishes to rely on the alleged dishonesty of the other party, then the
allegation must be put to the other side and they must be afforded an opportunity to
respond to same.
DECISION
28. The plea that the plaintiff deliberately caused the collision between the two vehicles is one
which imputed fraud and dishonesty to the plaintiff. Unless there was evidence to
substantiate same, this plea should not have been included in the Personal Injuries
Defence, and certainly should not have been verified on affidavit by Ms Donovan. In the
event, no evidence was ever adduced in support of the plea.
29. The defendant and her insurer, Aviva, have declined to offer any explanation to the High
Court as to how the plea came to be made. The absence of an explanation is very
concerning in circumstances where the defendant’s own evidence before the Circuit Court
strongly suggests that the plea had been included on the initiative of the insurer and not
of the defendant herself. It will be recalled that Ms Donovan’s sworn testimony to the
Circuit Court had been to the effect that she had never said that the accident had been
caused deliberately.
30. The fact that the defendant did not seek to stand over the allegation before the Circuit
Court, and ultimately conceded liability before the High Court, has taken much of the
sting out of the allegation. However, it remains the case that the defendant has never
sought to amend the Personal Injuries Defence nor to correct her verifying affidavit.
Rather than take the opportunity afforded by the adjournment of the proceedings
Page 9 ⇓
following the principal judgment to attend to these matters, the defendant sought instead
to ambush the plaintiff with a further unsubstantiated allegation, i.e. that he had
exaggerated his claim by a sum in the order of thirty euros.
31. Applying the principles stated by the High Court (Barniville J.) in Trafalgar Developments
Ltd. v. Mazepin [2020] IEHC 13, I am satisfied that the defendant and her insurer have
engaged in precisely the type of litigation misconduct which justifies the making of an
award of costs on the higher basis (“legal practitioner and client” basis). A party should
not make a claim of fraud or dishonesty against the other party without ensuring that
there exists clear evidence supporting a prima facie case in relation to such claim. The
plea that the plaintiff had deliberately caused the collision was one which imputed fraud
and dishonesty to him. The making of this allegation had potentially serious
consequences for the plaintiff in terms of his reputation and good name. Moreover, even
if not calculated to do so, the existence of the plea might well have dissuaded the plaintiff
from pursuing his personal injuries claim for fear that he would be exposed to penalties
under the Court and Civil Liability Act 2004. No explanation, still less a justification, has
ever been offered for the defendant’s conduct.
CONCLUSION AND FORM OF ORDER
32. In all the circumstances, I propose to make an order pursuant to Order 99, rule 10(3) of
the Rules of the Superior Courts (as amended by Rules of the Superior Courts (Costs)
2019) directing that the costs shall be adjudicated on a legal practitioner and client basis.
For the avoidance of any doubt, the intention of this order is that the plaintiff will recover
costs at a higher level than the usual “party and party” basis, and that the adjudication
will allow all reasonable costs (even if such costs are not strictly speaking “necessary” in
the sense that the term is understood for the purposes of adjudication). For example, the
costs are to include the costs of both senior and junior counsel before the High Court, and
to include the costs of the written legal submissions filed.
33. The plaintiff will not be entitled to recover any costs in respect of the making of discovery
of documents in circumstances where, as discussed in the principal judgment at
paragraph 24 et seq., the affidavit of discovery failed to identify or list the individual
documents.
Appearances
Barney Quirke, SC and Ivan Daly for the Plaintiff instructed by Ferrys Solicitors
Murray Johnson, SC and Noel Cosgrove for the Defendant instructed by BLM Solicitors
Result: Costs ordered on higher scale because of litigation misconduct