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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E.M. (A Minor) v R & A Leisure LTD (Infant Ruling) [2022] IEHC 66 (14 February 2022)
URL: http://www.bailii.org/ie/cases/IEHC/2022/2022IEHC66.html
Cite as: [2022] IEHC 66
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APPROVED [2022] IEHC 66
THE HIGH COURT 2015 No 1863P BETWEEN E.M. (A MINOR SUING THROUGH HIS FATHER AND NEXT FRIEND) PLAINTIFF AND R & A LEISURE LIMITED DEFENDANT JUDGMENT of Mr. Justice Garrett Simons delivered on 14 February 2022 1. This matter comes before the High Court by way of an application to rule a proposed settlement of a personal injuries action. The approval of the court is required in circumstances where the plaintiff has not yet reached the age of eighteen years, and, accordingly, is a minor or infant in the eyes of the law. The plaintiff will be referred to in this judgment as “the injured child”. 2. These proceedings arise out of an accident which occurred on 30 November 2013. The injured child had been eight years of age at the time. 3. The injured child and members of his family had been participating in ice skating at a synthetic ice rink operated by the defendant. The injured child had slipped and fallen on the ice, and another skater had then skated over the injured child’s left hand while he lay on the ground. This resulted in the partial amputation of the little finger on the injured child’s left hand. 4. The injured child had initially been taken to a casualty department at the local hospital, but was subsequently transferred to the Ulster Hospital, Dundonald. The plastic surgery team there attempted to reattach the amputated fingertip. Unfortunately, the procedure was not successful, and the top of the finger was instead “terminalised” and the wound closed by the use of sutures. 5. The injured child’s finger has been amputated at about the level of the distal interphalangeal joint. The finger is stated to be 17 mm shorter than the corresponding finger on the injured child’s right hand. 6. The injured child had been kept in hospital overnight and was then discharged. Thereafter, the injured child attended as an outpatient on approximately seven occasions to have his wound dressed and monitored. The injured child had also been referred to the primary care team of the child and mental health service (“CAMHS”) for their input. The injured child’s involvement with CAMHS ceased in June 2014, that is, some seven months after the date of the accident. 7. The injured child was most recently seen by a consultant plastic surgeon on 12 January 2017. The consultant’s report records that the injured child has normal function for all tasks of daily living, and that he is able to play football and other sports. The stump of the amputated finger is described as well-padded and non-tender. The grip strengths of the left and right hands are recorded as being equal when the whole hand is used. It is further recorded that in a grip involving the ulnar half of the hand, the grip strength of the left hand is a little less than the right. The left hand is able to pick up and manipulate a coin and a pin. 8. The summary and prognosis are set out in the consultant’s report as follows: 9. The reference above to a psychologist’s report is to a medico-legal report prepared by a consultant clinical psychologist at the request of the injured child’s solicitor. The report is dated 4 November 2016, and is based on a psychological assessment carried out on 17 August 2016 in the solicitor’s offices. The report expresses the opinion that the accident had very significant short and long-term sequelae for the injured child. The ongoing sequelae are stated to be psychological, physical and emotional. It is stated that there is evidence of post-traumatic symptoms, unprocessed trauma and a change in personality. 10. The report contains the following recommendation: 11. It is unclear from the papers before me whether or not this recommendation has been acted upon. 12. An application for the assessment of damages was made pursuant to the Personal Injuries Assessment Board Act on 8 April 2014. The defendant did not consent to an assessment being made by the Board. Accordingly, the Board issued an authorisation to bring proceedings in respect of the claim on 20 August 2014. 13. The within proceedings were then issued out of the Central Office of the High Court on 6 March 2015. The exchange of pleadings was completed in a matter of months, with a defence being delivered on 25 June 2015, following a response to a request for further and better particulars. No notice of trial was ever served. 14. For reasons which have not been explained, there then ensued long periods of delay in the progress of the proceedings. Indeed, it became necessary to serve a notice of intention to proceed on two occasions. At all events, the solicitors representing the defendant ultimately made a number of offers to settle the proceedings. In each instance, the offer proposed an “all in” figure, i.e. an omnibus sum to cover both damages and legal costs. In fact, the offers went further, and proposed how the sum might be divided up. The detail of the offers is summarised below: Date Damages Costs 15 May 2020 €7,500 €7,500 14 June 2021 €20,000 €10,000 25 June 2021 €20,000 €12,500 15. The first offer was the subject of an application to the High Court (Simons J.) on 2 November 2020. The application to approve the settlement was refused on the basis that the sum for damages (€7,500) did not reflect a reasonable settlement, even allowing for the very real litigation risk in terms of liability and causation. The question of costs was not canvassed before the court on that occasion. 16. Further negotiations ensued and, as appears, two improved offers were made. The final of these was then the subject of a renewed application to the High Court (Simons J.) on 8 November 2021. Counsel for the injured child, very properly, brought the court’s attention to the proposed division of the “all in” figure of €32,500 as between damages and legal costs. 17. The court expressed a concern that the amount proposed for legal costs appeared high relative to the level of damages. The matter was put back, by analogy with the principles in Landers v. Dixon [2015] IECA 155; [2015] 1 I.R. 707, to allow the solicitor acting for the injured child to put in material to assist the court in assessing what the appropriate amount for legal costs should be. Two affidavits were subsequently filed by the father of the injured child exhibiting relevant correspondence and a report from a legal costs accountant dated 18 January 2022 (with a summary bill of costs appended). The injured party’s solicitor was afforded an opportunity to address the matter further, through counsel, at a short hearing on 31 January 2022. 18. The chronology of events is summarised in tabular form below. 30 November 2013 Date of accident 25 March 2014 Consultant orthopaedic surgeon’s report 8 April 2014 Application to Personal Injuries Assessment Board (PIAB) 20 August 2014 PIAB issue authorisation to bring proceedings 6 March 2015 High Court proceedings issued 25 March 2015 Appearance entered on behalf of defendant 15 April 2015 Defendant’s notice for particulars 29 April 2015 Replies to notice for particulars 25 June 2015 Defence delivered 4 November 2016 Consultant clinical psychologist’s report 12 January 2017 Consultant plastic surgeon’s report 12 October 2018 Notice of intention to proceed 7 January 2019 Engineer’s report 2 November 2020 Application to rule proposed settlement of €7,500 27 May 2021 Notice of intention to proceed 8 November 2021 Application to rule proposed settlement of €20,000 18 November 2021 Statement of account to client 19. The injured child has not yet reached the age of eighteen years, and, accordingly, is a minor in the eyes of the law. This has important implications for the conduct of the proceedings, and, in particular, for any potential settlement of same. 20. A minor or infant lacks legal capacity to pursue legal proceedings on their own, and may only sue as plaintiff by their “next friend”. This quaint term refers to an adult who has consented to carry on proceedings on behalf of a minor plaintiff. The next friend is typically a close relative of the minor plaintiff. Here, for example, the next friend is the injured child’s father. 21. The next friend is not a party to the proceedings, but rather acts on behalf of the minor plaintiff. The next friend is responsible for the progress of the proceedings, and has authority to give instructions to the solicitor acting on behalf of the minor plaintiff. Importantly, the next friend is potentially liable to pay the costs of the defendant(s) in the event that the proceedings are unsuccessful. Part of the rationale for requiring the nomination of a next friend is to ensure that there is an identified person with legal capacity against whom a costs order may be enforced. 22. The role of next friend is an onerous one, and, for this reason, there is an express requirement under the Rules of the Superior Courts that a written authority to the solicitor be signed and filed in the Central Office before the name of any person shall be used in any cause or matter as next friend. It is essential that the solicitor explain to a putative next friend that they will have a potential liability to pay the costs of the other side. 23. The next friend does not have authority to settle or compromise the proceedings on behalf of the minor plaintiff. No settlement is valid without the approval of the court. This is provided for under Order 22, rule 10 as follows: “(1) In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, either before or at or after trial, shall, as regards the claims of any such infant or person of unsound mind, be valid without the approval of the Court. (2) No money (which expression for the purposes of this rule includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such cause or matter in respect of the claims of any such infant or person of unsound mind, whether by verdict or by settlement, compromise, payment into Court or otherwise, before or at or after the trial, shall be paid to the plaintiff or to the next friend of the plaintiff or to the plaintiff’s solicitor unless the Court shall so direct.” 24. Accordingly, if the next friend of a minor plaintiff considers that proceedings should be settled, it is necessary to make an application to court for approval of the proposed settlement. 25. The requirement for court approval is intended to ensure that the interests of minors are properly protected in the settlement of proceedings. The court is in a position to provide a neutral assessment of the value of the claim and of the reasonableness of the settlement figure, having regard to issues such as any risk on liability. The requirement for court approval also constitutes a safeguard against possible error on the part of the legal advisors acting on behalf of the minor plaintiff. Moreover, the court can exercise some control over legal costs in those cases where the proposed settlement is an “all in” settlement, i.e. the legal costs are to be paid out of the figure proposed rather than there being a separate order for costs as against the defendant. 26. Where a settlement or compromise has been approved by the court, the claim will be regarded as fully and finally settled, and the minor plaintiff will be bound by same. It will not be open to the minor plaintiff to seek to reagitate the claim on reaching their age of majority. 27. Order 22, rules 10 (3) and (4) provide that no money agreed to be paid in respect of the claims of an infant, i.e. a minor plaintiff, shall be paid to the plaintiff, or to the next friend of the plaintiff, or to the plaintiff’s solicitor, unless the court shall so direct. The court has discretion to make such directions as it may think fit, and may direct that a payment be made to the plaintiff’s solicitor in respect of costs. 28. In most instances, a defendant will, as part of the proposed terms of settlement, consent to an order directing it to pay the plaintiff’s costs as adjudicated under Part 10 of the Legal Services Regulation Act 2015. This ensures that the amount of costs is subject to independent oversight by the Office of the Chief Legal Costs Adjudicator. 29. The proposed terms of settlement in the present case are unusual in that it is not envisaged by the parties that there will be any formal adjudication on costs. Instead, it is suggested that more than one-third of the money to be paid in respect of the minor plaintiff’s personal injuries claim is to be paid in respect of costs. This court, in the discharge of its obligation to protect the interests of the minor plaintiff, must consider whether the amount suggested to be paid in respect of costs is reasonable. 30. The reasonableness of an offer of settlement is assessed by considering what the likely outcome would be were the claim to proceed to full hearing before a trial judge, and comparing that hypothetical outcome to what would be paid under the offer of settlement. This exercise will require consideration of issues such as whether liability is contested, and the amount of damages which are likely to be recovered were the proceedings to go to trial. If liability is in issue, then the amount of the proposed settlement may be less than the notional “full” value of the claim. It may nevertheless be sensible to accept this discounted sum, rather than to allow the case to go to trial and run the risk that liability would be decided in favour of the defendant; no damages would be recovered; and costs awarded against the minor plaintiff. 31. This exercise has to be performed on the basis of far more limited information than would be available to the trial judge. The court must instead draw upon its knowledge of the risks inherent in litigation, and attempt to identify potential weaknesses in the claim which may affect the outcome of the proceedings. Counsel on behalf of the minor plaintiff will have provided a confidential opinion to the court that candidly sets out the strengths and weaknesses of the case. Ultimately, however, the decision on whether to approve the settlement resides with the court alone. 32. In the present case, there is a real likelihood that the personal injuries claim would be dismissed. Had the action gone to trial, the principal area of dispute would have been in respect of liability and causation. The injured child’s side would have had to persuade the trial judge, first, that the safety measures put in place by the defendant (including, in particular, the regulation of the number of skaters permitted on the ice rink at any one time, and the provision of staff to marshal the skaters) were inadequate; and, secondly, that had additional safety measures been taken, then the accident would likely have been avoided. 33. The trial judge might well have taken the view that ice skating is an inherently hazardous activity, and that the risk of the type of accident which occurred cannot be excluded entirely. There is a respectable argument to be made that a person who chooses to participate in a hazardous activity voluntarily assumes those commonly appreciated risks which are inherent in such participation. 34. A defence of this type had been pleaded, but had not been pursued at trial, in Naghten v. Cool Running Events Ltd [2018] IEHC 452; [2021] IECA 17. There, the plaintiff’s legal team had conceded at the outset of the hearing that certain risks, including the risk of falling, were inherent in participation in ice skating. The negligence alleged in the proceedings, however, related to specific shortcomings in the system put in place for patrons to exit the ice rink. The trial judge did not accept that patrons had voluntarily assumed any risk in that respect. 35. By contrast, the accident in the present case occurred during the course of the child’s participation in the ice skating, not on his entering or leaving the ice rink. The injury was caused by another person skating over the child’s hand after he had fallen to the ground. This is a type of accident which could have occurred even if there had been only a small number of skaters allowed on to the ice. It has not been suggested, for example, that the child fell as a result of being pushed or jostled on an overcrowded ice rink. A person who is lying prone on an ice rink is always at risk of injury from other skaters, even in a well supervised facility. 36. Given the likelihood that the personal injuries claim would be dismissed, it was inevitable that any offer of settlement by the defendant would be discounted to reflect this reality. 37. The notional “full” monetary value of the claim, at its very height, would have been between €35,000 and €45,000. This amount has been estimated as follows. 38. The book of quantum published by the Personal Injuries Assessment Board provides the following guidance in respect of the assessment of damages for the type of injury suffered by the child in the present case: 39. An amount of up to €41,600 is suggested for the partial loss of a person’s little finger. Having regard to the report of the consultant plastic surgeon (summarised earlier), the injury in the present case is not at the higher level of this suggested scale. The injured child has normal function for all tasks of daily living, and is able to play football and other sports. The injury is not to his dominant hand. The amount of damages likely to be awarded by a trial judge (absent issues on liability and causation) would not exceed €30,000. An additional amount of between €5,000 and €15,000 would likely be awarded to reflect the psychological injury suffered. 40. Accordingly, the most favourable award of damages which might be anticipated would fall in the range of €35,000 to €45,000. On the hypothesis that the claim succeeded at trial, an award of costs would likely be made in favour of the minor plaintiff on the Circuit Court scale. 41. The offer of settlement is an “all in” figure of €32,500. This represents a discount on the notional “full” value of the claim, i.e. €35,000 to €45,000 together with Circuit Court costs. Subject to a modification to the apportionment as between damages and costs (discussed under the next heading), I am satisfied that this represents a fair and reasonable offer and should be approved. The amount is more than the injured child is likely to recover were the matter, instead, to go to trial. There are very real difficulties in respect of liability and causation. The most likely outcome were the matter to go to trial is that the claim would be dismissed, and an award of legal costs made in favour of the defendant. 42. There is an additional complication created in respect of legal costs by the fact that the proceedings have been brought in the High Court rather than the Circuit Court. Even if the injured child succeeded on liability and causation, it would be open to the defendant to seek a differential order on costs in accordance with the principles in McKeown v. Crosby [2021] IECA 139. 43. For completeness, it should be recorded that the injured child’s father has confirmed to the court that he is in favour of the proceedings being settled. The father, to his credit, is keen to bring closure to the matter now for the sake of his son. While desirous of securing some compensation to provide what he describes as a “financial start” for his son in adult life, the father observes, with real insight, that no amount of damages will ever compensate the injured child for the pain and suffering caused by the accident. 44. The injured child in these proceedings was involved in a traumatic accident, in consequence of which he has sustained a permanent disfigurement to his left hand. The injured child also suffered psychologically as a result of the accident. Accordingly, these proceedings are, understandably, of importance to the injured child and to his next friend, his father. 45. From a strictly legal perspective, however, the proceedings are very straightforward. There is no significant dispute in respect of the facts surrounding the mechanics of the accident. There is CCTV footage available and this has been reviewed by the engineer retained on behalf of the injured child. 46. Similarly, the prognosis in respect of the physical injury is also straightforward. This is not a case where, for example, there had been a requirement for ongoing medical treatment or subsequent surgical procedures. There are no difficulties in assessing the long-term physical consequences of the injury. The physical injuries were readily capable of being fully described in two short medical reports. The position in respect of the psychological injury is similarly clear-cut. The injured child had engaged with CAMHS for some months after the accident. The longer-term sequalae have been identified in the consultant clinical psychologist’s report. 47. It is an indication of the lack of complexity of the present case that senior counsel had been content to mark a sum of €350 (plus VAT) in respect of his opinion, together with a sum of €250 (plus VAT) for a consultation with the engineer. These modest sums reflect the full value of the work actually involved. The documents to be reviewed by counsel were small in number and not complex, consisting primarily of three short medical reports, and an engineer’s report running to approximately 750 words and a number of photographic stills. The review of these documents; the attendance at consultation; and the subsequent preparation of the opinion, is unlikely to have taken more than two hours in total. 48. The legal and factual issues arising were all ones which are well within the capability of a competent junior counsel (such as the experienced junior counsel actually retained in this case). Same involved the application of well-established principles of the law of negligence to the particular facts of this case. There was no need to retain senior counsel for this case; and there was certainly no need to retain two counsel. The reasonable recoverable costs should be confined to one counsel. 49. The potential monetary value of the claim, at its very height, would have been €35,000 to €45,000. The claim for personal injuries is one which should, therefore, have been brought in the Circuit Court and not the High Court. The costs to be paid out to the solicitor from the settlement figure must reflect this reality. 50. Having regard to the nature, extent and value of the work involved, the reasonable amount recoverable in respect of counsel is €2,480 (plus VAT). The precise breakdown of this figure is set out towards the end of this judgment. Out of this overall figure, an amount of €1,580 (plus VAT) is referable to the two applications to rule the proposed settlements of €7,500 and €20,000, respectively. A lesser amount will be appropriate in a more typical case where there is only one court application. An application to rule a proposed settlement is uncontested and the judge will normally have read the papers in advance. The hearing time involved will be very short, usually no more than ten minutes. The recoverable costs should reflect this reality. 51. Turning next to the solicitor’s fees, the figure indicated in the solicitor’s statement of account of 18 November 2021 is approximately €4,600 (plus VAT). The solicitor has since provided a copy of advices and summary bill of costs received from his legal costs accountant. These advices suggest that the appropriate professional fee for the solicitor would be in the region of €9,500 (plus VAT), together with a sum of €500 in respect of postage. 52. It is difficult to reconcile the discrepancy between the figures indicated in the statement of account and those suggested by the legal costs accountant. It is important to emphasise that, in accordance with the criteria prescribed under Part 10 and Schedule 1 of the Legal Services Regulation Act 2015, recoverable costs are to be assessed by reference to work actually done. Put otherwise, the figure for costs is not to be put forward in the abstract. No attempt has been made by the legal costs accountant to explain how this figure of €9,500 (plus VAT) has been calculated, still less to explain how it relates to the much lower figure actually sought to be charged by the solicitor. 53. It is not evident from his advices as to what documents had been reviewed by the legal costs accountant for the purpose of preparing his costs estimate. This is unsatisfactory. A report which is intended for use by the court should expressly identify the materials upon which it is based. It would appear from the generic nature of the report, and from the references therein to information gleaned from the courts.ie website, that the report is not based on a detailed examination of the papers in this case. 54. I have concluded that the reasonable amount recoverable in respect of the solicitor’s fee is €2,500 (plus VAT). This figure reflects the reality that the burden of the work in this case has been shared with counsel. It is apparent from the fee notes submitted that counsel had a significant input: counsel not only drafted the personal injuries summons but also assisted with the preparation of the replies to the request for particulars and with the discovery of documents. Counsel also advised on whether the settlement should be recommended and attended a consultation with the engineer. Whereas it is legitimate for a solicitor to seek such assistance from counsel, the corresponding reduction in the work which has had to be done by the solicitor himself should be reflected in the fees charged by him personally. 55. The solicitor’s work appears to have been largely confined to the curation of the case, and liaising between the injured child’s family, counsel and the experts. The terms and conditions supplied by the solicitor to the injured child’s father on 13 January 2014 indicated that the solicitor’s hourly rate would be €100 (inclusive of VAT). The figure of €2,500 equates to approximately thirty hours work at this rate. This represents a fair approximation of the amount of time likely spent on the case by the solicitor. Much of the work had been done by the experts and counsel, and this outlay is recoverable separate to the solicitor’s professional fee. The paperwork generated by the case, including expert reports and pleadings, is minimal and runs to less than eighty pages. The settlement negotiations were conducted by correspondence. No notice of trial was ever served. 56. No allowance has been made in respect of any fees or expenses incurred in respect of the application to PIAB, having regard to the provisions of section 51B of the PIAB Act 2003. 57. The proposed settlement of the proceedings for an “all in” figure of €32,500 is approved, subject to the following directions pursuant to Order 22, rule 10 of the Rules of the Superior Courts. An amount of €8,445.40 is to be paid to the minor plaintiff’s solicitor in discharge of his costs, including outlay and VAT. This sum includes an amount of €3,050.40 (inclusive of VAT) in respect of counsel. This amount has been calculated on the basis that the proceedings did not warrant the retention of senior counsel. In fact, two counsel were engaged at various points. It is a matter for agreement between counsel as to how the allowed amount is to be divided up between them. 58. The balance of the figure of €32,500, i.e. an amount of €24,054.60, is to be paid into court, and to be held to the credit of the minor plaintiff until he reaches the age of eighteen years. 59. Finally, the court notes that it is intended to refund the minor plaintiff’s father the sums paid to the solicitor on account. Result: Proposed settlement approved, with directed costs. This schedule of costs forms part of the judgment and should be reproduced in any copy of the judgment. FEE VAT CRO search 5.00 Personal injuries summons 130.00 Stamp on ex parte docket (x 2) 120.00 Order 15.00 Stamp on affidavits (x 4) 80.00 Commissioners’ fees 50.00 High Court accountant’s office 230.00 Taking up of medical records 85.00 Counsel Drafting personal injuries summons 275.00 Replies to particulars 150.00 Draft discovery letters 200.00 Advice on Proofs 275.00 Ex parte docket 40.00 Grounding affidavit 200.00 Brief fee on rulings (x 2) 500.00 Ex parte docket 40.00 Grounding affidavit 200.00 Consultation 250.00 Opinion 350.00 VAT on counsel’s fees 570.40 Experts Engineering report 500.00 VAT on engineering report 115.00 Consultant orthopaedic surgeon 200.00 Consultant plastic surgeon 250.00 Consultant clinical psychologist 540.00 Solicitor’s professional fees 2,500.00 VAT on solicitor’s fees 575.00 Subtotals 7,185.00 1,260.40 TOTAL 8,445.40 Introduction
Factual background
“[The injured child] sustained a partial amputation of the left little finger while ice-skating. Despite an attempt at replantation the finger could not be salvaged and was therefore terminalised.
As a result of the injury he experienced pain and a certain amount of distress. He missed several weeks from school and his other activities were interfered with for about six months.
He has been left with some symptoms relating to cold intolerance and heat sensitivity. These symptoms are common after a finger amputation and are likely to be permanent to some degree. They currently do not prevent him taking part in any activity.
Overall his hand function has been generally preserved. There is a little weakness of the grip on the ulnar side of the hand, but I would not expect that this will be sufficient to interfere with any activities in the future.
He would not benefit from further surgical treatment to his hand either now or in the future.
The appearance of his hand is permanent. This continues to cause him some psychological upset and clearly this is now a permanent feature.
I have read the report by the psychologist and note ongoing psychological symptoms and a recommendation that he be referred for EMDR and that some further work with the family may also be important. I understand to date that this has not occurred and it may be worth seeking an updated psychiatric report once this treatment has been completed.
The findings on examination today are consistent with the history of the injury and with the treatment received.”
“There was a significant impact of the incident on the immediate and wider family circle. Mum in particular continues to exhibit post trauma symptoms. From the information provided it does appear that [the injured child’s] parents have been excellent at providing their son with support but the impact of the incident and a desire to not upset their son prevents them from being able to discuss it openly.
It would be useful for the family to have further psychological support to help both [the injured child] and his parents process the trauma associated with the incident. I very strongly feel that both [the injured child] and his mother would benefit from a specific trauma related therapy such as EMDR – Eye Movement Desensitisation Reprocessing and the family as a whole may benefit from a contained environment to discuss the incident and the systemic impact. As [the injured child] has just started grammar school and is approaching adolescence it would be important that this happens in a timely manner.”
Procedural history
Chronology
Requirement for court approval
Whether offer of settlement is reasonable
“Loss of Single Digits
There are several factors that need to be considered when calculating the assessment. Such factors would include dominant hand, appearance, use of any remaining stump, age, gender and occupation impacts.”
Payment of costs to solicitor
Conclusion and form of order
Schedule of costs