Supreme Court of Ireland Decisions

 


THE SUPREME COURT

NO. 144/2003

Denham J.

Murray J.

Hardiman J.

BETWEEN/

CONOR O'CONNOR

Plaintiff/Respondent

AND

BUS ÁTHA CLIATH/DUBLIN BUS

Defendant/Appellant

[Judgments delivered by all members of the Court; Denham J dissenting in part]

Judgment delivered on 18^th day of December, 2003 by Denham J.

1. Appeal

Bus Átha Cliath/Dublin Bus, the defendant/appellant, hereinafter referred to as the defendant, has appealed from the order of the High Court (O'Donovan J.) delivered on 28^th March, 2003 whereby Conor O'Connor, the plaintiff/respondent, hereinafter referred to as the plaintiff, was awarded damages of €20,431 (€15,000 for general damages and €5,431 for special damages), together with costs on the appropriate Circuit Court scale and the certification of a fee for Senior Counsel.

2. Claim

The claim for damages by the plaintiff arises out of a road traffic accident which occurred on 19^th November, 1996 on the Malahide Road. The plaintiff claims damages for personal injuries, loss and damage suffered by reason of the negligence and breach of duty of the defendant. The plaintiff was stationary in his car in a line of traffic when a bus, owned by the defendant and driven by a servant or agent of the defendant, collided with the rear of the car of the plaintiff. The plaintiff claims that this caused him personal injuries and severe damage to his car.

3. Assessment

Liability for the accident was not denied by the defendant; liability was not an issue. Hence this claim proceeded in the High Court as an assessment only. However, the defendant contested the nature and extent of the injuries of the plaintiff. The defendant also submitted that the plaintiff had deliberately and grossly exaggerated the injuries to the point that the claim was an abuse of process.

4. High Court Judgment

The case proceeded in the High Court on 26^th and 27^th March, 2003. The learned trial judge reserved judgment overnight and delivered judgment on 28^th March, 2003. The High Court rejected the submissions of the defendant that the facts of the case, being the exaggeration of his injuries and their sequaelae, were such as to amount to an abuse of process as described in Shelley Morris v. Bus Atha Cliath [2003] 2 ILRM 12. The learned trial judge held:

" …I have no doubt that Mr. O'Connor grossly exaggerated the symptoms which he alleged that he experiences as a result of the injuries which he suffered in the accident which gave rise to this claim. However, I am not persuaded, as Mr. Cooney for the defence has submitted, that he told me deliberate lies. While I do not believe that he was anything like as bad as he purports to have been since his accident, I am convinced that he believes everything that he has told me. In other words, while I think that he is misguided and a lot of his problems, particularly his alleged ongoing problems, are a figment of his imagination, I think that basically he is an honest person. I am persuaded of this for four reasons: Firstly, that he never stopped working since his accident. Secondly, that he never denied engaging in any of the activities that Mr. Price filmed him doing. Thirdly, that he conceded not only improvement over the years, but also that he had remissions which lasted for months. Fourthly, that Mr. McNamee thought he was a genuine person.

In my view, if Mr. O'Connor was deliberately trying to pull the wool over the court's eye or endeavouring to attract compensation to which he was not entitled, he would not have continued to work and would not have made the concessions which he made in evidence.

Accordingly I do not think that the principle laid down by the Supreme Court in Shelley Morris v. Bus Atha Cliath, an unreported decision which was delivered on the 11^th December, last year, to which I was referred, whereby a court is entitled to dismiss a claim in which a plaintiff is guilty of deliberate exaggeration to the extent that his or her creditability is so devalued that it cannot be relied upon, applies in this case."

The learned High Court judge held that the plaintiff had suffered a moderate injury as a consequence of the negligence of the defendant. He stated:

"As I say, I think that the plaintiff has established on the balance of probability that he did suffer an injury on the 19^th November, 1996 as a result of the defendant's negligence. However, notwithstanding what the plaintiff himself has said, I do not think that it was a very … I think it was a very moderate one, and that in the light of Mr. McNamee's evidence, I think that Mr. O'Connor has largely recovered and had largely recovered by the time that Mr. McNamee saw him in November of 1999. And that such symptoms as he then had, whatever he himself may think, I do not consider that they were very significant, and abated in a relatively short time after that.

… However, I am not persuaded that he suffered any reduction in income as a result of his injuries. And in those circumstances I will award damages as follows:

I will award general damages to date in the sum of €15,000. I do not think that Mr. O'Connor is suffering any ongoing consequences of his accident, and accordingly, I am not awarding any general damages for the future.

As it was agreed, I am awarding him a sum of €4,790, which is the euro equivalent of £3,772.32 which he paid to repair his car. I am awarding €595, which is the euro equivalent of £469 he paid in respect of physiotherapy. And I am awarding him €46, which is the euro equivalent of £36.30 which he paid to his general practitioner. Total €20,431. There will be a judgment accordingly."

5. Grounds of Appeal

The defendant has appealed on the following grounds:

(a) The finding by the learned trial judge that the plaintiff was an honest though misguided witness was contrary to the evidence and the weight of the evidence.

(b) The learned trial judge failed to give any or any sufficient weight to the contradictions, exaggerations and falsehoods perpetrated by the plaintiff both in his pleadings and in his evidence.

(c) The learned trial judge erred in law and in fact in failing to hold that the plaintiff so abused the process of the court as to warrant dismissal of his claim.

(d) The learned trial judge erred in law and in fact in not exercising discretion in favour of the defendant as provided for by s. 17 of the Courts Act, 1981, as substituted by s. 14 of the Courts Act, 1991.

6. Submissions

Counsel on behalf of the defendant, Mr. Brendan Mulhall, B.L., submitted that at issue was whether the learned trial judge was justified by all he had heard and seen during the course of the trial in reaching the conclusion that the plaintiff was an honest, though misguided, witness whose exaggerations were innocent rather than false and fraudulent. Counsel submitted that such a conclusion was not supported by the evidence. Of the four reasons cited by the learned trial judge as to why he thought that basically the plaintiff was an honest person, counsel on behalf of the defendant submitted as follows:

(a) That he never stopped working since the accident.

Counsel submitted that this is hardly a convincing reason given the extent of the plaintiff's initial injuries as evidenced by the medical attention which he sought and received. He was self-employed and his consultant thought he would be fully fit to resume all forms of work six months after the accident.

(b) That he had never denied engaging in any activities which Mr. Price filmed him doing.

Counsel submitted that the plaintiff admitted to these only when he knew that there was incontrovertible evidence of his ability to do this form of labouring work. Until that point in the course of the trial, he had effectively sought to deny this degree of physical capability.

(c) He conceded not only improvement over the years but also that he had had remissions which lasted for months.

It was submitted that the plaintiff's evidence was at best ambiguous in this regard and deliberately confusing. On another view, it was submitted that he purported deliberately to leave the impression with the trial judge that his physical capacity to carry out his work was seriously limited and that it was for this reason that he was obliged to change occupations. This impression, it was submitted, was unmistakably false.

(d) That Mr. McNamee thought he was a genuine person.

Counsel on behalf of the defendant submitted that this was an erroneous interpretation of Mr. McNamee's evidence. It was submitted that Mr. McNamee's evidence does not offer support for the view arrived at by the learned trial judge that the plaintiff was basically an honest person.

Counsel on behalf of the plaintiff relied on the findings of the learned High Court judge. He submitted that the evidence of the plaintiff was corroborated by Mr. McNamee, that up to a time in 1999 the plaintiff was suffering from the effects of the injuries of the collision. He accepted that there had been a finding that the plaintiff had exaggerated – he pointed out that that finding had not been appealed. He submitted that the plaintiff was not a deliberate liar, but that he had exaggerated his evidence. He submitted that exaggeration may be either deliberate or innocent. He submitted that in this case the exaggeration was innocent, the learned trial judge having found the plaintiff to be basically an honest person.

7. Decision

In effect the defendant raised two issues on this appeal. First, the defendant, in his grounds of appeal (a) to (c), has essentially raised the issue of the honesty of the plaintiff. This matter requires consideration of the credibility and reliability of the plaintiff. From this determination flows the decision on the issue of an abuse of court process. Secondly, the defendant made submissions on costs. The court was referred to Vesey v. Bus Eireann, [2001] 4 I.R. 192 and Shelley Morris v. Bus Atha Cliath, [2003] 1 IR 232.

7.i. Role of the Appellate Court

The first issue, which arises from the grounds of appeal (a) to (c), the credibility and reliability of the plaintiff, requires consideration of the role of an appellate court. The jurisprudence of this appellate court is well established in law. For example, in Hay v. O'Grady [1992] I.R. 210 the Supreme Court heard an appeal by the plaintiff from the dismissal by the High Court of an action for negligence. McCarthy J. pointed out that prior to the Courts Act, 1988 an action of that sort would ordinarily have been tried by a judge and jury. He stated that it was established jurisprudence of the Supreme Court that a verdict of a jury as to issues of fact and the inferences to be drawn from the facts as found will not be disturbed by the Supreme Court if there is evidence to support such findings and inferences. McCarthy J. stated that this is so even if this Court would, itself, have drawn inferences different from those drawn by the jury. The question raised by the Court in that case was whether or not the function of this appellate court, in reviewing a verdict of a judge alone in cases which would have prior to 1988 been tried by a judge and jury, is any different from that identified in Northern Bank Finance Co. Ltd. v. Charlton [1979] I.R. 149 and further stated in Moore v. Fullerton [1991] I.L.R.M. and Coleman v. Clarke [1991] I.L.R.M. 841. Having considered the Constitution, case law and the Rules of the Superior Courts, McCarthy J. held:

"The role of this court, in my view, may be stated as follows:-

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in 'Gairloch', The SS Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.

5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows."

Finlay C.J., Hederman J., O'Flaherty J. and Egan J. agreed with the judgment of McCarthy J.

That precedent is applicable to this case. In this case the trial judge also made decisions on facts, previously the duty of juries. The issue of the credibility of the plaintiff was at the core of the case and was specifically addressed by the trial judge. He was satisfied that the plaintiff exaggerated. However he held specifically that the plaintiff believed everything which he had told the court. The learned trial judge considered that the plaintiff was misguided, but that "basically he is an honest person." At the heart of the appeal is the issue of the honesty of the plaintiff. This is an issue heavily dependant on the evidence he gave, and his demeanour in giving such evidence. McCarthy J. in Hay v. O'Grady [1992] I.R. 210 pointed out that the demeanour of a witness in giving evidence may, itself, lead to an appropriate inference which an appellate court would not draw. He judged that an appellate court should be slow to substitute its own inference of fact where such depends on oral evidence or recollection of fact and a different inference has been drawn by the trial judge. I endorse that determination as the appropriate approach for an appellate court such as this court where the appeal is on the record and is not a full re-hearing of the evidence.

It is quintessentially a matter for the jury (or a trial judge acting in place of a jury) to hear and consider the evidence of a plaintiff or witness and to determine the credibility and reliability of that person and to determine the consequent facts of a case. It is only in exceptional circumstances that an appellate court would intervene in such a determination. However, circumstances, such as incontrovertible facts or uncontested testimony, may indicate that the determination of the trial judge is erroneous. However, that is not the situation in this case. The facts and testimony in issue on this appeal were in issue before the trial judge, who gave a clear decision on both.

Given the jurisprudence established, as described in Hay v. O'Grady [1992] I.R. 210, the defendant carries a heavy burden to succeed in this appeal. I did not see or hear the evidence of the plaintiff, or observe the manner in which he gave his evidence. As is clear from reading the transcript of the evidence and the judgment, the findings of the trial judge were supported by evidence of the plaintiff. The issue of the credibility of the plaintiff was addressed expressly by the learned trial judge. In such circumstances, when the issue of credibility has been addressed carefully by the High Court judge, it would be only in exceptional circumstances that an appellate court would intervene in that decision. I would be slow to substitute my own inference of fact, which depended on oral evidence, when a different inference has been drawn by the trial judge, especially as in this case when the facts have been so clearly and specifically addressed, by the trial judge, even if there is evidence and testimony against that inference. There was a conflict on this issue before the High Court, and it was resolved by the learned trial judge. On the current jurisprudence of this court I am satisfied that I should not interfere in the decision of the High Court.

7.ii Soft Tissue Injury

At issue in this case is a soft tissue injury. The nature of soft tissue injuries makes them a difficult area for decision making by judges and other professional persons. Such an injury is very dependent on the evidence of the injured person. The lack of objective medical technological confirmation is a usual feature. It is an area of complexity for decision makers. However, that complexity has to be addressed. This is done primarily as an issue of credibility of witnesses. Whilst some medical evidence may not be as confirmatory as, for example, an X-ray of a broken bone, it is a matter for careful consideration.

In this case Mr. McNamee, an orthopaedic surgeon, gave evidence which was considered and accepted by the learned trial judge. Mr. McNamee gave evidence of the complaints of the plaintiff in March, 1997. He saw the plaintiff again on 30^th November, 1999. The transcript of his evidence includes the following:

"129 A. …

He was still getting the headaches. His neck was stiff. And he felt that he had decreased power in his arms. He said his lower back locked up when he was working and when he was standing at the sink. He complained of a dull ache in his back which could be associated with some feeling of nausea. His back, he said there was a major problem. He had difficulty carrying out a lot of activities and he was still having physiotherapy, My Lord. Examination at this time, My Lord: His neck: He didn't complain of any tenderness, but he certainly seemed to have a decrease in extension of his head, and once again, in rotation. Examination of his lower back: The region of his left sacroiliac joint was the area that he complained of pain and locking. But at this time he had a good range of movements. At this time, My Lord, I referred him to see Dr. Josh Keaveny at his pain clinic.

Mr. Justice O'Donovan: On that examination, Mr. McNamee, what were the clinical findings? Were there any clinical findings?

A. He had some decrease in neck movements, My Lord.

Mr. Justice O'Donovan: Could you quantify those?

A. I haven't done, My Lord, because I find this very hard, to quantify them. I would figure that they were certainly greater than 25% reduced. But once again, it is very hard to be subjective about these.

Mr. Justice O'Donovan: Yes, I understand that. Was that the only clinical finding?

130 Q. Mr. McGovern: What about his back?

A. He indicated his sacroiliac joint as the area of pain, but he had a normal range of movements, and I have no note of him complaining of any tenderness in that area.

131 Q. Now, what were your feelings as you described? What was your

opinion about his situation at that stage?

A. I mean certainly, My Lord, he was still having problems related

to both his neck and his back. I felt that with Dr. Keaveny's help that he should improve further."

On cross examination, by counsel for the defendant, Mr. McNamee stated:

"159 Q. And the one matter referred by His Lordship is the decrease of

movement in his neck. That of course, was a decrease which

you saw when you asked him to volunteer movement of his

neck, is that correct?

A. Yes, My Lord. I feel very strongly that one does not force a

patient to move their limbs. I think that is bordering on assault. So it is very hard to make a decision as to how much movement the patient definitely has. But you are also, you are observing the patient when you are talking to them. I mean, somebody who has restricted movements when you examine them formally, if they didn't have them when they are talking and generally being interviewed, you would make a note of the fact that there was a difference.

160 Q. Yes. And in other words, this is a conclusion which was

supported by your general observation of the plaintiff while you were – while he was in your consulting room, is that being fair?

A. Well, from my note, it would have borne out that I felt that he,

when I asked him to move his neck, that he was moving his neck to the limit that he could.

161 Q. And he was being genuine about that, you felt?

A. I would have felt that, yes My Lord.

162 Q. Yes. Did he strike you as being a genuine sort of man in his

complaints?

A. Yes, My Lord."

There was clear evidence on the soft tissue injury from Mr. McNamee, which the learned trial judge stated he accepted. This he was entitled to do.

7.iii Exaggeration

In Shelly Morris v. Bus Atha Cliath [2003] 1 IR 232, I pointed out that the issue of exaggeration may arise in different ways. Three such ways are: (i) where the whole claim is concocted, (ii) where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect that they have. This type of approach involves no conscious lying by a plaintiff. (iii) Thirdly, there may be a situation where there is a genuine case of negligence established but the plaintiff deliberately exaggerates the injuries, knowing that he or she is exaggerating the injuries and their effects. This may take on the appearance of a fraud claim.

In this case the learned trial judge, having seen and heard the plaintiff and Mr. McNamee, considered the issue of the credibility of the plaintiff, and, while finding exaggeration, specifically found the plaintiff to be honest. Thus this claim appears to fall into the second example given above where a claim is exaggerated but where there is no conscious lying by the plaintiff. However, the defendant has appealed against this determination.

In light of the evidence and the judgment of the High Court I am satisfied that the defendant has not established this ground of appeal successfully. The relevant evidence in issue was that of the plaintiff, and, to a limited degree, that of Mr. McNamee. The learned trial judge accepted the evidence of the plaintiff, with the limitations expressed in his judgment, as set out previously. The learned trial judge also accepted and relied upon the evidence of Mr. McNamee. In accepting the oral evidence from the plaintiff and Mr. McNamee the High Court was acting within its discretion. There was credible evidence upon which the learned trial judge could make his determination. Consequently I consider that I am bound by those findings.

Specifically, I would not allow the first three grounds of appeal of the defendant. In considering the evidence of the plaintiff the learned High Court judge had the benefit of seeing and hearing the plaintiff. He gave a considered judgment on the reliability and credibility of the plaintiff. In so determining, the learned trial judge was acting within his jurisdiction and judicial discretion. Having considered the evidence the learned trial judge held that the plaintiff had exaggerated his injuries, but that this was done with a belief in what he was saying, that the plaintiff was basically an honest person. This finding of fact negates deliberate exaggeration. There was evidence upon which the learned trial judge could come to such a conclusion. Consequently I would not intervene in that determination.

7.iv. Damages

In these circumstances a sum of €15,000 was awarded, by the High Court, for the injuries to the plaintiff. As to loss of earnings, the learned trial judge held that the plaintiff suffered no reduction in income, and was not entitled to any damages under this heading. No sum of money was awarded for loss of income.

As to special damages, the plaintiff was awarded €4,790, being the cost of repairing his car. Given that the defendant did not deny liability no issue arises on this sum. Similarly, no issue arises on the €595 which was ordered and which covers the cost of physiotherapy care which the plaintiff received, nor does any issue arise on the €46 awarded to cover the cost of the visit to his General Practitioner.

At issue is the sum of €15,000 awarded in general damages. There being no issue of loss of income a wider analysis of the circumstantial evidence was not required. The very fact of the refusal of the High Court to permit the plaintiff to succeed on the loss of income claim underpins the careful analysis, including that as to the credibility and reliability of the plaintiff's evidence, undertaken by the High Court.

7.v. Abuse of Process

In view of the finding of the learned High Court judge as to the basic honesty of the plaintiff, and the consequent findings of fact, and my considered view that it would not be correct to intervene in that determination, the issue of abuse of process does not arise. Such issue would arise only in a situation where the evidence of a plaintiff was such as to take on the appearance of fraud. That was not the finding of the learned trial judge, whose determination I would uphold.

7.vi. Costs

The second issue is that of costs. The issue of costs was raised in the High Court both in the context of Shelley Morris v. Bus Atha Cliath, [2003] 1 IR 232, and in the context of s. 17(5) of the Courts of Justice Act, 1981 as amended by s. 4 of the Courts of Justice Act, 1991. This appeal was argued on the basis of s. 17(5), as amended.

Counsel for the defendant submitted that the claim for loss of earnings was a deliberately false claim, when presenting arguments on this issue of costs. On behalf of the defendant it was submitted that the reality of the plaintiff's claim never justified the institution of proceedings in the High Court; shorn of its exaggeration his claim, on a realistic assessment, could never have exceeded £30,000. It was submitted that this is a clear case in the ambit of the subsection and that the defendant should have been reimbursed, in costs, the difference between defending this action in the High Court and that which would have been the cost if it had been brought in the Circuit Court.

The learned High Court judge held:

"I think the only reason why I would exercise my discretion against the plaintiff would be if I were satisfied that the claim for future loss or the claim for loss of earnings was a fraudulent one. As I have indicated, I think it was a misguided one, and I don't think he is entitled to succeed in it, but I am not convinced that it was fraudulent, and I am not convinced that it was fraudulent because, as I have said, I think Mr. O'Connor was a misguided but honest person, and I think he believed that his input into his business had gone down, with the result that it wasn't getting the returns it did. And I accept Mr. McGovern's submission, that the financial difficulties referred to the accountant were financial difficulties which arose from Mr. O'Connor's perceived inability to contribute as much to the business as he had been contributing before his accident. Accordingly, an order for Circuit Court costs."

Thus the usual order was made, costs followed the event. The plaintiff had succeeded in his action against the defendant and he was awarded an order for costs. However, he did not get an order for High Court costs, even though he had brought the action in that jurisdiction. He was awarded costs on the Circuit Court scale.

7.vii. Costs – Order under s. 17(5)

In addition to the order for costs at the reduced Circuit Court scale, the defendant sought an order for a sum being the difference between the cost of defending the action in the High Court and the cost which would have arisen in defending the case in the Circuit Court. The relevant statute law is to be found in the Courts Act, 1991. The Act of 1981 was amended by the substitution of a new s. 17 by s. 14 of the Courts Act, 1991. The new s. 17(5) provided:

"(5) (a) Where an order is made by a court in favour of the plaintiff or

applicant in any proceedings (not being an appeal) and the court is not the lowest court having jurisdiction to make an order

granting the relief the subject of the order, the judge concerned may, if in all the circumstances he thinks it appropriate to do so, make an order for the payment to the defendant or respondent in the proceedings by the plaintiff or applicant of an amount not

exceeding whichever of the following the judge considers appropriate:

(i) the amount, measured by the judge, of the additional costs as between party and party incurred in the proceedings by the defendant or respondent by reason of the fact that the proceedings were not commenced and determined in the said lowest court, or

(ii) an amount equal to the difference between-

(I) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar, and

(II) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing

Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate County registrar on a scale that he considers would have been appropriate if the proceedings had been heard and determined in the said lowest court.

(b) A person who has been awarded costs under paragraph (a) of this subsection may, without prejudice to his right to recover the costs from the person against whom they were awarded, set off the whole or part thereof against any costs in the proceedings concerned awarded to the latter person against the first mentioned person.

(6) In this section 'relief' includes damages."

7.viii. S. 17(5) Discretion

On this appeal the defendant submits that the High Court erred and that he was entitled to an order under s. 17(5). Section 17(5) gives to the trial judge a discretion: Mangan v. Independent Newspapers (Ireland) Limited, (Unreported, Supreme Court, 31^st January, 2003). In that case McCracken J. stated, in reference to s. 17(5):

"It is quite clear from the phrase 'if in all the circumstances he thinks it appropriate to do so' that the section confers a discretion on the trial judge. In her judgment in the present case the learned trial judge referred to a number of matters which she clearly took into account in the exercise of her discretion. While she did not comment on the matters individually, and merely found that in all the circumstances of the case it was not appropriate to make an order under the subsection, nevertheless she clearly was aware of the matters which it was relevant to take into account. There therefore does not appear to be any error by her in the exercise of her discretion.

I also think it is relevant to consider that this is a libel action in which damages are determined by a jury. It is not an action for a liquidated sum, nor is it an action for general damages in a negligence action which could be determined by a judge alone. In those cases, the plaintiff's legal advisers in deciding in court to initiate the claim should be able to estimate within reasonable parameters the probable level of damages should the plaintiff succeed. The situation is very different in a libel action where the views of juries can differ enormously on the question of damages. In the present case, the plaintiff's advisors obviously considered that the plaintiff would obtain reasonably substantial damages if he succeeded. As it transpired, the plaintiff in fact recovered damages within the Circuit Court jurisdiction, but they were still reasonably substantial damages and it could not be said that the plaintiff was in any way unreasonable or irresponsible in bringing the proceedings in the High Court. Indeed, had the plaintiff been awarded only a slightly higher amount the learned trial judge would have had the discretion to allow the plaintiff full High Court costs under s. 17(2). In all these circumstances I consider it was proper to refuse to make an order under s. 17 (5)."

In this case the learned trial judge considered the circumstances and exercised his discretion. The case is different to Mangan in that Mangan was a libel case and this is a case for personal injuries where a judge rather than a jury determines the level of damages. It is also different in that the award in Mangan was €25,000 while in this case it is €15,000. The essential issue is the exercise of the discretion of the trial judge. I agree with the reasoning in Mangan. The wording of s. 17(5) makes it clear that the judge has a discretion. The word "may" in the subsection is qualified by the words "if in all the circumstances", which itself is personalised by the following words being, "he thinks it appropriate to do so."

The discretion of a trial judge should be exercised "in all the circumstances" of the case. In this case the essence of the defence was to allege fraud and abuse of process by the plaintiff. That was the core issue on the assessment. Having considered the matters the High Court found that the plaintiff had exaggerated but that he was an honest man. The plaintiff succeeded in obtaining an award of €15,000 general damages but no sum for future loss of earnings. The learned trial judge held that the plaintiff did not suffer any loss of earnings. However, it is clear that it was the loss of earnings factor which brought the claim within the jurisdiction of the High Court. Thus the issues of dishonesty and the future loss of earnings were critical in the High Court.

In these circumstances the learned trial judge held that the only reason he would exercise his discretion in this case against the plaintiff, under s. 17(5), was if he was satisfied that the claim for loss of earnings was fraudulent. That is a reasonable determination by the learned trial judge as it was the loss of earnings claim which brought the plaintiff's case within the potential jurisdiction of the High Court. Further, the High Court, in determining the s. 17(5) application, specifically pointed out that the plaintiff's claim was not fraudulent, but rather that it was misguided, that the plaintiff was an honest person. The learned trial judge specifically held of the plaintiff that he (the plaintiff) believed that his input into his business had gone down, with the result that it was not getting the returns it had done previously. Further, the learned trial judge accepted the submissions of counsel that the financial difficulties referred to by the accountant were financial difficulties which arose from the plaintiff's perceived inability to contribute as much to the business as he had been contributing before his accident. The discretion in s. 17(5) must be applied to all the circumstances of a case. The learned trial judge in exercising his discretion in this case referred to the fundamental circumstance – the credibility of the plaintiff – upon which the case succeeded or fell – when exercising his discretion. Given the plaintiff's honest belief, as so found, it could not be said that he acted unreasonably or irresponsibly in bringing the action in the High Court. Accordingly, I am satisfied that the learned trial judge exercised his discretion reasonably in the circumstances. I would not intervene in his determination.

There is no need for there to be fraud to ground a discretionary decision under s. 17(5). The discretion given under s. 17(5) is broad. It is a discretion to be exercised "if in all the circumstances he thinks it appropriate to do so." In this case the defence was that it was a fraudulent and exaggerated claim and thus the core of the case was the issue of fraud. I am satisfied that it was within the trial judge's statutory discretion to exercise it as he did. I would not limit the discretion of the trial judge by excluding all the circumstances he thought appropriate as stated in this case, where the core issue put before the court by the defence was fraud and upon which ground the defence lost. In this case, where a core issue on this assessment was the defence claim that it was a fraudulent claim and abuse of process, the learned trial judge was within his discretion in exercising his statutory discretion as he did.

9. Conclusion

For the reasons given I would dismiss the appeal and affirm the order of the High Court. I would also affirm the order of the High Court as to costs.

THE SUPREME COURT

Record No. 144/2003

Denham, J.

Murray, J.

Hardiman, J.

CONOR O'CONNOR

Plaintiff/Respondent

and

DUBLIN BUS/BUS ATHA CLIATH

Defendants/Appellants

Judgment of Murray, J. delivered on the 18^th day of December, 2003.

Mr Conor O'Connor, the Respondent in this Appeal was awarded in the High Court €15,000 by way of general damages for personal injuries and €5,431 for special damages. He was also awarded the costs of the proceedings on the appropriate Circuit Court scale.

On the 19^th November, 1996 Mr O'Connor was the driver of a motor car which was stationary in traffic on the Malahide road when a bus, the property of the Appellants, drove into the rear of his motor car. The Appellants did not contest liability in the High Court and the only issue before the High Court was the quantum of damages to be awarded to the Respondent.

A central issue which arose before the learned High Court judge was the gross exaggeration of the symptoms and consequences which the Respondent claimed to have sustained as a result of the injuries which he suffered in the road traffic accident. The learned High Court judge found as a fact that he had indeed grossly exaggerated these matters.

The High Court Judgment

The most relevant findings of the learned High Court Judge concerning the facts and the exaggeration engaged in by the Respondent were the following: -

"… I think the probabilities are that the Plaintiff would have suffered soft tissue injuries to his neck and back of the type that he described and which his surgeon, Mr McNamee, confirmed in his report of the Plaintiff on the 8^th April, 1997. If he did, however, I think it equally probable that those injuries were of a very moderate injury …"

Having reviewed inconsistencies in the Respondent's own evidence and inconsistencies between his evidence and evidence from other witnesses he concluded: -

"Having regard to the foregoing, I have no doubt that Mr O'Connor grossly exaggerated the symptoms which he alleged that he experiences as a result of the injuries which he suffered in the accident which gave rise to this claim. However, I am not persuaded, as Mr Cooney for the Defence has submitted, that he told me deliberate lies. But I do not believe that he was anything like as bad as he purports to have been since his accident, I am convinced that he believes everything that he has told me. In other words, while I think that he is misguided and a lot of his problems, particularly his alleged on-going problems, are a figment of his imagination, I think that basically he is an honest person. I am persuaded of this for four reasons: -

Firstly, that he never stopped working since the accident. Secondly, that he never denied engaging in any of the activities that Mr Price filmed him doing. Thirdly, that he conceded not only improvement over the years, but also that he had remissions which lasted for months. And fourthly, that Mr McNamee thought that he was a genuine person.

In my view if Mr O'Connor was deliberately trying to pull the wool over the court's eye or endeavouring to attract compensation to which he was not entitled, he would not have continued to work and would not have made the concessions which he made in evidence.

Accordingly, I do not think that the principle laid down by the Supreme Court in the case of Shelley Morris –v- Bus Atha Cliath, an unreported decision which was delivered on the 11^th December last year to which I was referred, whereby a Court is entitled to dismiss a claim in which a Plaintiff is guilty of deliberate exaggeration to the extent that his or her credibility is so devalued that it cannot be relied on, applies in this case.

As I say, I think that the Plaintiff has established on the balance of probability that he did suffer an injury on the 19^th of November, 1996 as a result of the Defendants negligence."

As regards the Respondents claim for loss of earnings, the learned High Court judge concluded: -

"However, I am not persuaded that he suffered any reduction in income as a result of his injuries." On this particular claim, when dealing subsequently with the issue of costs, he stated: -

"As I have indicated, I think it was a misguided one, and I do not think he is entitled to succeed in it but I am not convinced it was fraudulent, and I am not convinced it was fraudulent because I have said, I think Mr O'Connor was a misguided but honest person …"

In the light of his findings, the general damages awarded by the learned High Court Judge was confined to such pain and suffering as was sustained by the Respondent from the date of accident to date of trial with no award for general damages as to future pain and suffering. The sum awarded for special damages was confined to specific sums established to having being lost by the Respondent such as the cost of car repair. There was no special damages awarded in respect of loss of earnings nor was any loss of earning capacity incorporated in the assessment of general damages.

The Appeal

The Appellants outlined their grounds of appeal in the following terms: -

"(a) The findings by the learned trial judge that the Plaintiff was an honest though misguided witness was contrary to the evidence and the weight of the evidence.

(b) The learned trial judge failed to give any or any sufficient weight to the contradictions, exaggerations and falsehoods perpetrated by the Plaintiff both in his pleadings and in his evidence.

(c) The learned trial judge erred in law and fact in failing to hold that the Plaintiff so abused the process of the court as to warrant dismissal of his claim, and,

(d) That the learned trial judge erred in law and in fact in not exercising discretion in favour of the Defendant as provided by Section 17 of the Courts Act, 1981 as substituted by Section 14 of the Courts Act, 1991."

Thus there are two parts to the appeal. The first part concerns the judgment of the High Court as to the level of damages including whether any damages at all should have been awarded an account of an alleged abuse of process by the Respondent. The second part of the appeal concerns the costs awarded and the manner in which the High Court exercised its discretion in applying Section 17(5) of the Courts Act 1981 as amended by the Courts Act, 1991.

Abuse of Process

One of the issues raised at the conclusion of the evidence in the High Court, and now raised on appeal, is that the Respondent's claim should be dismissed for "abuse of process". It is claimed that the deliberate falsehoods alleged to have been told by the Respondent in the course of his evidence constituted such an abuse of process. In the High Court counsel for the Appellants applied to the learned High Court Judge "… to dismiss the Plaintiff's case here in its entirety, because a very large proportion of his case – a portion of the case is false and deliberately false." He approached it on the basis that this was "a relatively novel point in our jurisprudence" and relied on the judgments of my two colleagues in this case, Denham, J. and Hardiman, J. in Shelly-Morris –v- Bus Átha Cliath. He also relied on the judgment of this court in Vesey –v- Bus Éireann (Supreme Court, unreported, 13^th November, 2001). The proposition advanced, on foot of these authorities, in the High Court and in this appeal is that the Respondent's claim should be dismissed because of the false evidence which he allegedly gave even if the learned High Court judge was otherwise correct in holding that on the balance of probabilities he had established some injury entitling him to some damages by reason of the Appellants' wrongdoing. It is submitted that the learned High Court Judge ought, on the evidence to have found, not that the Respondent was honest but exaggerating his claim, but that he deliberately and falsely put forward an exaggerated claim and was thus guilty of an abuse of the process of the court.

It is distinct from the submission that the Plaintiff should be treated as having no credibility at all in view of his alleged proven falsehoods in a portion of his evidence. Such a situation arises where a trial judge finds himself or herself in the situation that a plaintiff has told so many falsehoods that it is not possible to distinguish, having regard to the onus of proof on the plaintiff, between what may be true and what is false in the evidence given. It should be noted that the learned High Court Judge when referring to the Shelly-Morris case in his judgment (as quoted above) cited it as authority for this approach and not as authority for dismissal of the Plaintiff's claim by reason of an alleged abuse of process. For reasons which I will go onto explain in my view the learned High Court Judge was correct in that respect.

In the ordinary course of events it would not matter to a defendant whether a Plaintiff's evidence was rejected by a trial judge either because it was an exaggeration or because it was false. Either way the Plaintiff fails, or fails to have that evidence accepted as establishing any fact. This case is obviously different because of the plea advanced by the defendants.

Although, for reasons which I will explain later, I do not consider that the plea, as put, could in any event succeed on the facts before this court, I do think I should comment on the basis on which the plea was advanced in relying on the above authorities. I have to say that I do not find either case an authority for the proposition advanced by the defendants namely that a plaintiff who has established a claim for damages should nonetheless have his case dismissed because a portion or very substantial portion of his case was falsely and perhaps fraudulently advanced and constituted an abuse of the process of the court.

In the Shelly-Morris case Denham, J. gave very careful consideration to the kind of situations which may arise when a trial judge finds that a plaintiff has exaggerated including where there is a finding of deliberate exaggeration. As she initially pointed out the issue of exaggeration by a plaintiff in court proceedings is not new, nor would I add could similar conduct on part of a defendant be considered novel. Denham, J. went onto to refer to three of the many possible circumstances that can arise in such cases, the first of which is where it is found that the whole claim is concocted. Then, she pointed out, the claim will be dismissed. That of course inevitably follows from the failure of a Plaintiff to establish his or her case.

Denham, J. then referred to a second situation "… where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. This type of approach involves no conscious lying by a claimant". In those circumstances the trial judge must simply determine the value of the claim on the basis of the facts established.

Denham, J. then turns to a third possible situation where there is genuine case on liability but a Plaintiff deliberately and knowingly exaggerates the injuries and their effects. She points out that this puts the credibility of the witness at issue and states "…that the credibility is so undermined that the burden of proving a claim has not been met then trial judge will dismiss the claim." Of course she acknowledges that in the particular circumstances of a case a trial judge may be in a position to assess the credibility of the witness in the light of the evidence of other witnesses. Here she is clearly referring to a situation where a plaintiff's credibility has been seriously undermined by reason of deliberate falsehoods on his or her part but the credibility of at least part of the claim is established by or with the assistance of other credible witnesses entitling him or her to damages accordingly. However, in the end, she points out that "It is for the plaintiff to prove his or her case on the balance of probabilities. It may be that the deliberate exaggeration is such that the credibility of the witnesses is called into doubt and the burden of proof is not carried. Consequently the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies." In short, a trial judge finds a plaintiff's evidence so permeated with dishonesty that it is impossible to sift the wheat from the chaff so that he or she must be found to have failed to discharge the onus of proof.

I think Denham, J made it clear that she was not purporting to make any novel statement as to how a trial judge should deal with these matters. She very succinctly summarised the approach which trial judges have always taken in the three situations to which he referred bearing in mind that the onus is always on the plaintiff to establish his or her case. To the extent that a plaintiff fails to discharge that onus, for want of credibility or otherwise, his or her claim fails.

In addressing the facts of that particular case, in which the Plaintiff was found to have deliberately exaggerated her symptoms, she observed "As the burden of proof is on the plaintiff the loss of credibility undermines her case as to her injuries suffered. …Consequently, the Plaintiff was in danger of loosing her entire claim. In the light of the fact that the trial judge in this case had the benefit of seeing her and hearing her evidence and was satisfied that she did suffer some injuries her evidence stands and is credible insofar as it is corroborated by the medical reports."

In her decision on that appeal, Denham, J. upheld an award of €70,000 for pain and suffering to date and reduced the award of damages in the High Court for pain and suffering in the future. This was based solely on the issue of the credibility of the plaintiff having regard to the onus of proof on her. The award was not interfered with on the grounds of an abuse of process and in dealing with that question separately Denham, J. expressly stated "Deliberate exaggeration by a plaintiff may be such as to be an abuse of the process of the court. In such a case it may be appropriate to put this to a witness and for counsel to address the legal issues. However, that did not occur in these proceedings. Consequently, apart from raising the matter as an appropriate issue which may be considered in the future in such a case, I make no finding." It seems to me clear that Denham, J. was not purporting to make any definitive decision on this point but rather saying that this could be an issue for future consideration in an appropriate case. In any case, it is clear that the issue of abuse of process and its application to tortious actions in these circumstances was not the ratio of her decision.

Hardiman, J. in his judgment in the same case decided the issues in the appeal on the same basis as Denham, J. namely, the extent to which the Plaintiff could be found to have established her claim having regard to her gravely damaged credibility by reason of the fact that she had been found to have deliberately lied to the trial court. He came to the same conclusion as Denham, J. on the question of damages and the apportionment of liability. In deciding to modify the award made by the High Court in that case he did not rely on any notion of abuse of process.

Certainly Hardiman, J. felt constrained or, as he put it, felt it "…appropriate to comment on the court's power to prevent, or remedy, abuse of process at greater length than was done in Vesey." He recited two statements of general principle from two English authorities which he felt were equally applicable in this jurisdiction and that the courts have a power and duty to protect their own processes from being made the vehicle of unjustified recovery. However, he concluded "Quite properly in the circumstances of the present case, the defendant has not sought this drastic relief. That is not to say that this relief would be inappropriate in a similar case in the future. "

Given the basis on which Hardiman, J. decided that the Defendant did not

seek any relief on the grounds of the alleged abuse of process and the fact that, as Denham, J. pointed out, counsel did not address the legal issues arising in that context, his observations on the subject are clearly intended to be obiter. In the circumstances outlined it does not seem to me that the Shelly-Morris case purports to be an authority deciding that a finding of deliberate exaggeration on the part of a plaintiff is a ground for dismissing a plaintiffs claim where the trial judge is otherwise satisfied that he or she has established at least a portion of the claim which would attract an award of some damages.

I now come to the case of Vesey –v- Bus Éireann also relied on by counsel for the appellants in this appeal. In that case counsel for the Appellant had submitted to this Court in that appeal that any award to which the court might think the plaintiff was entitled should be reduced or extinguished by reason of untruths found by the trial judge to have been told by the plaintiff, as a mark of the court's disapproval of such conduct. This was advanced by way of analogy with the principles whereby exemplary damages may be awarded to a plaintiff if "the defendant's evidence or conduct of the case" has been such that the court wishes to mark it's disapproval of it. Counsel making that submission conceded, in that appeal, that he had found no Irish or English authority precedent for such an order against a Plaintiff. In rejecting the submission Hardiman, J. stated "I am not satisfied that there is a direct analogy with an award of exemplary damages to mark the Court's disapproval of the conduct of a defendant." In fact the appeal was decided, as Hardiman, J. made clear, by reference to the credibility of the plaintiff and the damages awarded in the Supreme Court were not affected by any question of an abuse of process. In those circumstances it seems to me clear that the observations of Hardiman, J. on the potential consequences for a dishonest plaintiff of an abuse of the judicial process (introduced by the phrase, "Even if, contrary to the view I have expressed, …") were intended to be obiter.

In concluding on this point I think it appropriate to make some general observations.

The courts have an inherent jurisdiction to stay or dismiss proceedings on the grounds of an abuse of the process. That is a power which has existed for upwards of 150 years (see for example Grainger –v- Hill [1838, 4 Bing NC 212] and some U.S. authorities have traced it back to Blackstone's Commentaries. The notion also received statutory recognition in Section 27 (5) of the Judicature Act (Ireland) 1877 and it is reflected in Order 19, Rule 28 of the Rules of the Superior Courts.

"Abusing the process of the court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious, or oppressive, the ordinary remedy in such a case being to apply to strike out the pleadings or stay the proceedings, or to prevent further proceedings being taken without leave. Beyond this the court has jurisdiction to punish abuse of process by committal or attachment as a contempt. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction to stay frivolous or vexatious proceedings, can give an adequate remedy, it will not order a committal. On the other hand, where the irregularity amounts to an offence against justice, extending its influence beyond the parties to the action, it is contempt of court and punishable accordingly". (Halsbury, 3^rd Edition, 16).

The term has also been applied to cases where the proceedings are in proper form but in substance have been brought for a purpose which is ulterior and extraneous to them and to circumstances where a party has blatantly and persistently refused to comply with an order of the court (e.g. to answer interrogatories).

While I do not consider it necessary for present purposes (where these observations are necessarily obiter) to review the extensive case law on the application of the term abuse of process, the Irish, English and United States authorities which have been referred to in the cases I have cited would appear to conform to the manner of its application as indicated in Halsbury and outlined above. It appears to be a notion applied where the whole of an action ought to come to an end and is preventive of an abuse of process rather than punitive. That is the present state of the law if I understand it.

So far as I can ascertain it is a term which is applied to stay or dismiss proceeding before trial to prevent an action proceeding any further and has not been applied at the conclusion of a trial, apart from the exceptional case where an alleged abuse of process is the cause of action itself. A party which suffers harm caused by the abuse of process may have a cause of action against the other party for damages for that harm. (see Speed Seal Products Ltd –v- Paddington and Anor [1986] 1 A.E.R. 91, which also refers to the American Second Restatement of the Law of Tort (1977) to that effect, and the observations of Denning M.R. in Goldsmith –v- Sperrings Ltd [1977] 2AER 566 at 574 in an application to stay proceedings before trial.) That arises where harm is proved to have been done by a tortious wrongdoer, the person who has abused the process of the court, and he or she is liable to pay damages measured by reference to the harm done to the injured party. That is quite different from denying damages to a plaintiff without reference to any, if any, harm or loss sustained by a defendant (thus relieving the latter of his or her legal liability) in a case where part of the plaintiff's claim is rejected because of deliberate exaggeration while part is found to have been proved. In the present case there has been no claim (or counterclaim) for such harm or loss.

So far as I am aware there has been no case in this jurisdiction, England or the Unites States where proceedings have been stayed or dismissed for an abuse of the process of the court or imposing on another party where the abuse is alleged to comprise of deliberate exaggerations or falsehoods by the plaintiff in the course of his or her evidence at a trial where the plaintiff has otherwise been held to have established that at least part of his or her claim was valid and entitled to some award of damages.

In such circumstances it is the judgment of the court which has governed the issues and the Plaintiff loses any claim based on such evidence. Of course where there is cogent or tangible evidence of fraud the court may in circumstances where it considers it proper to do so direct that the relevant papers in the case be referred to the Director of Public Prosecutions. A Plaintiff may also be penalised in costs since the court enjoys a wide discretion having regard to wanton and substantial waste of the court's time.

I hesitate for present purposes to consider whether the term 'abuse of process' should be qualified as a term of art since 'abuse' is capable of such a wide meaning and may take many forms. In an appropriate case it may fall to be decided whether it is inherent in the jurisdiction of the court to treat false evidence at a trial as coming within the meaning of that term (and in one sense, a single falsehood could fall within the notion of abuse). If that were to be so it would also be necessary to decide the form of order which could be made by a court and the criteria for its application and whether the question of an abuse of process would fall to be tried as a discrete issue in each case where it was raised. Any right of a party to sue for damage suffered as a result of an abuse of process would also have to be taken into account. These are just some of the issues which it seems to me would have to be addressed should the court, in an appropriate case, have to decide whether the term abuse of process is capable of being applied to cases of such a nature.

However, as I have already indicated this is not a question which could be said to arise in this case having regard to the evidence and findings of the learned High Court judge at the hearing, which I now propose to consider.

Evidence at the Trial

Since the trial involved an assessment of damages only the issues inevitably focused on the extent of the Respondent's injuries and his claim for loss of earnings, particularly loss of earnings in the future.

The Injuries:-

The case generally made by the Respondent was that he had suffered injuries, of a soft tissue nature, to his back and neck and had also sustained an injury to his right knee. He was self-employed and had a motor garage business in which he repaired and serviced cars. He did not give up work but he was affected in his capacity to work by pain and stiffness in his neck, pins and needles in his arms, difficulty at times in moving his injured leg. His back would "lock-up" and was a regular source of pain and limitation in movement. He complained that he could not develop his business as he had intended because he had to restrict the volume of work and the number of customers as he could not get through the same amount of work in a day as he could prior to the accident. He had initially seen his G.P. and over the ensuing two or three years he frequently attended for physiotherapy sessions. He was referred to his orthopaedic consultant, Dr. McNamee in March, 1997, who was the only medical witness called at the trial.

Whilst discrete quotations from the evidence of the trial are of limited value, since the evidence of the Respondent, in direct and cross-examination, as well as that of his doctor must be considered as a whole, the following extract from the first day of the trial is indicative of his complaints. As regards the injury to his neck he stated "I was, for the first year to eighteen months there was very little change – I was stiff, not everyday but nearly everyday, depending on what I had done, depending on what type of work that I had completed during the week. I was completing less work, and what I was finding was, I was doing longer hours to complete the same amount of work that I would have been completing in less hours … I would take breaks during the day on a regular basis. …to try and limber up. If you are working on vehicles or working on any type of mechanical equipment or any type of trade, you are constantly bending and moving, and that bending and moving seemed to be creating, agitating the pain to be worse. So, if I kind of took it easy and just walked straight and kept my upper body straight, I would free-up and the pain would abate." The evidence was somewhat similar with regard to his back. This was a source of continuous pain and discomfort. He could do his work but he could not have the same throughput of work. He would have good days and bad days but would never know which day was going to be a bad day. He described graphically how on one evening in December, 1996 his back had "locked-up" as a result of which he was forced to lie on the floor of his workshop for sometime up to five hours. By the end of the Year 2000 his business was running into difficulties and in order to avoid the pain and stress which his work was placing on him, he gave up his business and obtained a job with a firm which provides instructors for FÁS sponsored training schemes. He took this job because it was physically less taxing. He instructs young people attending the training centre with a view to training them in motor mechanics. This also involved teaching them rudimentary mathematics and English. At the time of the trial he still suffered from a nagging discomfort in his back and neck and could get serious episodes of discomfort from time to time.

It is evident from a perusal of the transcript that the Respondent focused almost exclusively on the negative aspects of the effects which he claimed the injuries had on his lifestyle, in particular his working capacity. There was certainly nothing in his direct evidence to lead one to believe that he might voluntarily become involved in heavy work associated with the building of a house. That he had done so emerged in cross-examination. In 2000 he was having a house built on a plot adjacent to the one in which he was residing. In a pointed cross-examination by counsel for the Appellants he conceded with evident reluctance that although he had engaged a contractor he had carried out a significant amount of the work on the house himself. This included collecting a significant quantity of heavy bags of cement from a builder's supplier, lifting them into the van at the suppliers and lifting them out again at the building site. For the purpose of mixing concrete he lifted them onto the ground, split them with a shovel and emptied them into a cement mixer. He conceded that he did a certain amount of roofing work, some of the electrical wiring and also some of the plumbing. He purchased timber, cut it to the requisite length and laid wooden floors. All this work was over a period of three years. He also dug the garden, spread the earth and laid it out generally. It was put to him that he was capable of doing all the heavy, physical work of a builder's labourer which the Respondent had to acknowledge but he claimed that it was not work which he could not have done by way of occupation on a full-time regular basis.

This evidence was brought out by counsel for the Appellants in cross-examination before the introduction, by a witness on behalf of the Appellants, of evidence on video showing the Respondent transporting timber, sand and cement bags in various vehicles on different dates. He was seen unloading sand and cement and in particular being involved in the process of lifting cement bags and mixing cement in a concrete mixer throughout a particular afternoon.

As regards this evidence, counsel for the Respondent made the submission that the Respondents had admitted to all of these activities when asked about them and before any video evidence was shown. The comment from defence counsel was that he only did so in cross-examination and at a point when the Respondent might have assumed that the Defendants had specific evidence as regards these activities.

There was also a point in the evidence when the Respondent was being cross-examined as to the vehicles which he had at his home. On this aspect of his evidence he was manifestly evasive. This question arose because the Respondent had given evidence that he had continued to have difficulty in driving long distances particularly when he was required to use the clutch constantly in city traffic. In particular as furnished he had claimed that he had bought a motor cycle to alleviate his physical condition. In responding to questions concerning the vehicles which he owned or had on his property the Respondent his evasiveness was manifest and the learned trial judge so observed.

He also conceded that he had not consulted any doctor concerning his decision to move jobs due to his alleged physical condition and it transpired in the evidence of his orthopaedic surgeon, Dr. Paul McNamee, that he made little or no complaint to him concerning his difficulties in carrying out his work.

As regards the evidence of Dr. McNamee, he first saw the Respondent in connection with his injuries in March, 1997 and subsequently in June, 1997 and November, 1999. Dr McNamee gave evidence of the various complaints made to him concerning the problems with his neck, back and right knee. He also noted the complaints of the Respondent in relation to pins and needles in both arms. In general terms Dr. McNamee's evidence was that he did not find any neurological deficit and apart from recommending that the Respondent should continue with physiotherapy considered and eventually did recommend that he see a Mr. Keavney, a pain specialist. In his initial assessment he had expressed the view that the Respondent's symptoms would gradually clear up over a period of six months or so. He agreed that he had referred the Plaintiff to Mr Keavney because he could find no physical origin as such for his pain. He pointed out that the absence of such objective findings is often the case. He agreed that he had to depend on the Respondent in large measure as to the nature of his complaints but also reached conclusions from his own observations of the Respondent. He was asked by counsel for the Defendant whether he was of the view that the Respondent was being genuine about limitations in the movement of his neck and he replied in the affirmative. When asked "Did he strike you as being a genuine sort of man in his complaints?" He responded in the affirmative. He agreed that he had not discussed the Respondent's fitness for work with him at any stage and he had no note of any complaint from him or being unfit for work. He assumed, however, that the Respondent would have difficulty in "managing to do whatever he was doing."

At one point in his evidence Dr. McNamee explained that while in cases of this nature, where there are subjective complaints of a patient, one is dependant on the co-operation of the patient when he or she is asked to demonstrate the extent of the limitation of movement of a neck or limb. He felt, however, that he was in a position to make his own clinical observations including the movement of the neck or limb of a patient generally while in his consulting room.

No medical evidence was called on behalf of the Appellants. Undoubtedly Dr McNamee was in large measure dependant on the Respondent for a reliable account of his complaints. Whatever may be said about Dr. McNamee's evidence including his dependence on the reliability of the Respondent as regards his subjective complaints, his professional opinion did provide some measure of support for the injuries which the Respondent claims to have sustained. How far that measure of support went was in the first instance essentially a matter for the trial judge to determine.

Future Loss of Earnings:-

It was also submitted on behalf of the Appellants that the claims made by the Respondent in the pleadings concerning his loss of earnings and in particular future loss of earnings should also have been found by the learned trial judge as constituting deliberate exaggerations or falsehoods.

It is not in issue that at the time when the statement of claim was delivered in September, 1999 there was a claim for loss of earnings which was described as "unascertained and continuing". In September, 2000 the Plaintiff's solicitors furnished particulars stating that the Plaintiff was self-employed and that a report was awaited from his accountant, Mr Frank Corr. This was subsequently furnished. Mr Corr was not called at the trial although it is clear from the transcripts that his report was before the learned trial judge. Although it would appear that this report averted to a potential loss of income in the order of €10,000 per annum up to the closure of the Respondent's business, the accountant indicated that the business was terminated due to financial difficulties without any reference to the Respondent's physical inability to do the work which the business involved. In any case it is not in dispute that in 2001 the Respondent's solicitors wrote to the Appellants' solicitors conveying that the claim for continuing loss of earnings was being maintained. Finally, in 2002 the Respondent's solicitors informed the Appellants' in a letter dated 10^th June, 2002 that due to the difficulty which the Respondent had in continuing his work, particularly at the level at which he was capable of working prior to the accident, there was a "consequent loss of business and earnings, as projected in the letter of 1^st December, from Frank Corr, Accountant, already furnished herewith." At the trial the learned trial judge observed that this amounted to a claim for continuing and future loss of earnings.

At the trial the Respondent's claim for future loss of earnings was abandoned in the course of his direct evidence and his claim under this heading expressly confined to the period dating from the date of the accident to the date on which he ceased running his business and got alternative employment towards the end of 2000. Counsel for the Respondent also indicated at that point that no specific sum was being claimed for loss of earnings as special damages but it was being put forward as part of the Respondent's claim under general damages.

The Appellants submitted that having regard the kind of heavy labouring work which the video demonstrated the Respondent was capable of doing and which he admitted to being capable of doing, and the manner in which he put forward until the hearing a claim for future loss of earnings in his pleadings, that the trial judge ought to have treated the Respondent's claim for loss of earnings as a deliberate exaggeration or false and an abuse of the process of the courts.

Conclusions

In the first part of this appeal the court is being asked to review the findings made by the learned trial judge on the credibility of the Respondent and the damages awarded. The role of this court in appeals of this nature were set out by McCarthy, J. in the well known case of Hay –v- O'Grady [1192] I.R. 210 and which has been frequently cited with approval in the judgments of this court. McCarthy, J. stated: -

"The role of this court, in my view, may be stated as follows: -

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in "Gairloch," The S.S., Aberdeen Glenline Steamship Co. v.Macken [1899] 2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstances applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.

5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows."

The findings of the learned High Court Judge were recited at the outset of this judgment and included his conclusion that although the Respondent grossly exaggerated aspects of his claim, he had not told deliberate lies. It is pre-eminently the task of the trial judge, having had the opportunity of hearing and reviewing the relevant witnesses in person, to determine their reliability and credibility as witnesses and the extent to which a Plaintiff, on foot of that evidence, has established his or her case or the balance of probability.

There were certainly grounds which entitled counsel for the Appellants to invite the trial judge to conclude that there was deliberate exaggeration and to reject the entire of the Respondent's evidence as being wholly unreliable. However, it was for the trial judge to evaluate the evidence as a whole and to determine the extent to which the evidence of the Respondent could be accepted as credible and establishing certain facts notwithstanding any exaggerations which he may have made. The determination of such an issue has always being part and parcel of the trial judge's task. The difficulties posed in this case are not novel. I would recall just for illustrative purposes a finding of Bowen L.J. in Lawrence –v- Norreys [1888] 39 Ch. V 213 at 236 "I know by long experience that people persuade themselves that they or their friends have good cases in law when the cases are shadowy and hopeless. I do not say a word against his honour or his good faith but I am satisfied that no reasonable man could on the materials before us consider this action anything but groundless." The fact is that there are parties to litigation, Plaintiffs and Defendants, who, preoccupied with their own predilections perceive facts and circumstances from their own subjective viewpoint which leads them to give an account of those facts and circumstances that does not accord with other objective evidence. That does not mean that they are necessarily dishonest. The essence of the role of the trial judge is to take these factors into account and decide the case on the basis of the facts which he finds proven having regard to all the evidence.

That there was evidence before the learned High Court Judge upon which he could find that the Respondent had sustained some injuries was acknowledged by c counsel for the Appellants in his submissions that the close of the case when he stated "… and that at the very most, My Lord, it comes down to a matter of moderate general damages …"

The trial judge gave four specific reasons why he concluded that the Respondent had sustained some injuries for which he was entitled to be compensated. Among them was the fact that Dr. O'Keefe considered that the Respondent was a genuine person. As I have previously indicated, it is clear that Dr. McNamee in his evidence gave a measure of support and corroboration to the Respondent's claim that he had suffered injuries as a result of the Appellants' bus crashing into his car. It was a matter for the trial judge to decide the extent to which Dr. O'Keefe supported the Respondent's claim and, having had the advantage of observing the demeanour of the Respondent when giving evidence, to determine the extent to which the Respondent had credibly established his case. In my view the learned trial judge was entitled to make the findings which he did. Having regard to the principles in Hay –v- O'Grady it is not open to this court to set them aside.

Accordingly, in these circumstances I do not consider that the question of the alleged abuse of process arises. It also follows that the submission of the Appellants' that none of the Respondent's evidence should be given credibility in the light of the finding of the trial judge as to the exaggerated elements of his evidence must fail.

Damages

The learned trial judge made no award for general damages in the future nor for any loss of income. In my view the moderate award of €15,000 for general damages is entirely consistent and proportionate to the findings of fact made by the learned trial judge. The sum of €5,431 awarded as special damage relate to proven items of loss sustained by the Plaintiff.

For the foregoing reasons I would dismiss the first part of the Appellants' appeal.

Costs

The High Court awarded costs to the Respondent on the Circuit Court scale having regard to the level of damages awarded.

The Appellants submit the learned High Court judge erred in failing to accede to their submission that costs should be awarded on the basis of Section 17 (5) of the Courts of Justice Act 1981 as amended by the Courts Act, 1991. Section 14 of the 1991 Act introduced a new Section 17, subsection 5 which provides as follows: -

"(5) ( a ) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (not being an appeal) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the judge concerned may, if in all the circumstances he thinks it appropriate to do so, make an order for the payment to the defendant or respondent in the proceedings by the plaintiff or applicant of an amount not exceeding whichever of the following the judge considers appropriate:

(i) the amount, measured by the judge, of the additional costs as between party and party incurred in the proceedings by the defendant or respondent by reason of the fact that the proceedings were not commenced and determined in the said lowest court, or

(ii) an amount equal to the difference between—

(I) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar, and

(II) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar on a scale that he considers would have been appropriate if the proceedings had been heard and determined in the said lowest court.

( b ) A person who has been awarded costs under paragraph (a) of this subsection may, without prejudice to his right to recover the costs from the person against whom they were awarded, set off the whole or part thereof against any costs in the proceedings concerned awarded to the latter person against the first-mentioned person.

(6) In this section 'relief' includes damages.".

The Appellants submit they should have received the benefit of an order pursuant to subsection 5 having regard to want of credibility of the Plaintiff's evidence, the level of general damages awarded to him and the fact that his claim for loss of earnings to date of trial and in the future had wholly failed.

In ruling against the Appellant's submission, the learned High Court judge stated: -

"I think the only reason why I would exercise my discretion against the Plaintiff would be if I were satisfied that the claim for future loss or the claim for loss of earnings was a fraudulent one. As I have indicated, I think it was a misguided one, and I do not think he is entitled to succeed in it, but I am not convinced that it was fraudulent, … I think Mr O'Connor was a misguided but honest person, …" The trial judge went onto repeat that as regards the claim for loss of earnings that this had been brought because of the Plaintiffs own perception that the financial difficulties experienced by his business had been due to an ability on his part to run the business as he would otherwise have been able to but for his accident. The learned trial judge's attention had been drawn to the judgment of McCracken, J. in Mangan –v- Independent Newspapers (Ireland) Ltd (unreported, Supreme Court, 31^st January, 2003) which was an action for defamation in which the plaintiff was awarded damages within the jurisdiction of the circuit court. McCracken, J. decided that having regard to the nature of a defamation action and the particular circumstances of the case that Section17 (5) should not be applied. He differentiated that case from an action for a liquidated sum or a claim for general damages in a negligence action in stating "In those cases, the plaintiff's legal advisors in deciding in which court to initiate the claim should be able to estimate within reasonable parameters the probable level of damages should the plaintiff succeed." I do not consider that that decision has any application to the circumstances of this case.

It seems to me that the only basis on which the learned trial judge refused to apply the subsection was the absence of fraud on the part of the Plaintiff. I am unable to interpret his ruling as giving any or sufficient weight, when exercising his discretion, to the fact that the Plaintiff made a very substantial claim for loss of earnings continuing in the future which he maintained up to the morning of the hearing and only abandoned in the course of his direct evidence, the fact that this claim was rejected in its entirety, the grounds upon which it was rejected, and that the award which he received as a consequence was well below the level of the jurisdiction of the circuit court.

While a finding that portion of a Plaintiff's claim was dishonest or fraudulent may be factors in exercising the court's discretion when considering whether to apply subsection 5, it is quite evident that the application of the section in the particular circumstances of a case is not in any sense dependant on the presence of such factors. The section makes no specific reference to them.

The Courts Act 1991, which amended the 1981 by substituting the new Section 17, is in an act which increased the jurisdiction of the Circuit Court from €15,000 to €30,000 and the amending section is a provision which is expressed to be "Limitation on amount of plaintiff's costs in certain proceedings."

The relevant provisions are part of a statutory scheme whereby claims may be brought in different courts according to the level of their jurisdiction to give the relief sought by a plaintiff. It is clear that among the policy reasons for such provisions is that they facilitate the efficient administration of justice, are of convenience to all the parties in bringing their cases, where appropriate, before courts of local and limited jurisdiction. In particular, in the present context, it will usually mean that lower costs are incurred by both the plaintiff and the defendant than if the proceedings had been brought to the higher court.

It is clearly in the public interest that claims are in principle brought before the lowest court having jurisdiction to hear and determine the claim with a view to the proper and efficient administration of justice and for the purpose of minimising the cost of litigation generally and in particular for the parties. There is therefore an onus on a Plaintiff to bring the proceedings before the court having the appropriate jurisdiction.

In my view, when the order made by court in favour of a plaintiff falls well within the jurisdiction of a court lower than that making the award it is incumbent on the trial judge to have specific regard to the nature of the claim and all the reasons for which the plaintiff's claim fell within the lower jurisdiction or as the section puts it, all the circumstances of the case. An unsuccessful defendant should not be wantonly burdened with the costs of defending a claim in the higher court when it could reasonably have been brought in the lower court.

Since, in my view, the learned High Court judge did not take into account all the relevant circumstances of this case in making his decision whether or not to apply subsection 5 it was not a valid exercise of his discretion pursuant to the section. It therefore falls for this court, on appeal, to exercise its discretion.

The Respondent made a claim for substantial loss of earnings continuing into the future by way of special damage. He abandoned the claim for future loss of earnings on the morning of the hearing and confined his claim for past loss of earnings to a much more general claim under the head of general damages. There is no reason why this significantly reduced approach to the claim for loss of earnings could not have been adopted at a much earlier stage. There is no evidence that he made any complaint to Dr. McNamee concerning his ability to work and on his own admission he did not raise the issue of changing jobs due to his injuries with him.

In any event the claim for loss of earnings was rejected in its entirety, the trial judge having found that there was in this case "gross exaggeration" and that "… his alleged on-going problems are a figment of his imagination …". In these particular circumstances I do not see why the Defendants should have to bear the burden of the extra costs incurred by virtue of the proceedings having being brought in the High Court. I would not wish to imply that simply because a trial judge takes a less serious view of a plaintiff's injuries and the award falls somewhat below the jurisdiction of the trial court that that in itself would be a ground for making an order pursuant to

Section 17 (5), even if it were to be argued that in some very broad or loose sense

the plaintiff must be deemed to have overstated or exaggerated his or her complaints. It is in the nature of things that an injured party may tend to take a more serious view of his or her injuries than a trial judge and that Defendants tend in the opposite direction. There must also be a margin of appreciation allowed as to the level of damages which might be awarded in each particular case. That is why such issues come to be tried by an independent judge. In this case the situation is wholly different aggravated as it is by the specific findings of the trial judge to which I have referred. Even though the Respondents may be considered genuine and honest in his approach the fact that the claim was brought in the High Court on the basis of his gross exaggeration and imagined on-going problems must have the consequence, in my view, that he bear the extra costs incurred by the Appellants in defending the proceedings in the High Court rather than in the Circuit Court.

Accordingly, I am of the view that there should be an order, varying that of the High Court, for the payment to the Respondents an amount equal to the difference between the costs referred to in paragraph (I) and (II) of Section 17(5)(a)(ii).

Otherwise I would disallow the appeal as regards the issues related to damages.

THE SUPREME COURT

Denham J. 144/03

Murray J.

Hardiman J.

Between:

CONOR O'CONNOR

Plaintiff

and

BUS ÁTHA CLIATH/DUBLIN BUS

Defendant/Appellant

JUDGMENT of Mr. Justice Hardiman delivered the 18^th day of December , 2003.

This is the defendant's appeal from the judgment and order of the High Court (O'Donovan J.) of the 28^th March, 2003 whereby the plaintiff was awarded €15,000 for general damages and €5,431.00 in respect of special damages making a total of €20,431.00. The defendant's appeal is on an unusual basis. It says that the plaintiff's claim, as presented to the High Court, was grossly exaggerated, so as to amount of an abuse of the process of the Court. Therefore, it says, the action should have been dismissed. The Defendant also says that a finding by the learned trial judge that, although the plaintiff grossly exaggerated his injuries, he was an honest witness and did not do so deliberately, was contrary to the evidence. It also says that the learned judge failed to give any or any sufficient weight to the contradictions, exaggerations and falsehoods perpetrated by the plaintiff both in the course of urging his claim in pleadings and correspondence and in court.

Separately, the defendant submits that it should be entitled to certain relief in relation to costs, having regard to the amount actually recovered and to the provisions of s.17 of the Courts Act, 1981 as inserted by s.14 of the Courts Act, 1991.

The factual background, pleadings and correspondence.

The plaintiff was born on the 15^th June, 1968. At the time of the accident he was a self employed motor engineer, with garage premises on the North Circular Road, Dublin 7. He had been in business there since 1990 according to his direct evidence and was mainly engaged in the servicing of light commercial vehicles.

On the 18^th November, 1996 the plaintiff was driving a four wheel drive jeep which he used for towing. He was stationery in a line of traffic on the Malahide Road when he was struck in the rear by a bus. Proceedings were instituted on the 26^th April, 1999 and a statement of claim was delivered on the 29^th September of that year. The injuries in respect of which damages were claimed consisted of injuries to the neck and back with resultant pain stiffness and restriction of movement. This was said to affect his work. In describing his condition in the first eighteen months after the accident, and the pain he suffered, he said in evidence:-

"It was there all the time but it would – during working hours or during the day, if you were in inside working and producing, because that's what you had to do, was actually produce X amount of work each day, it would get worse. It constantly increased and increased and increased and it increased to the point at Christmas time that I actually lay down on the floor for five hours unable to move".

The plaintiff said that in the year 2000 he changed to a job "dealing with kids in the inner city from deprived areas. It was a job that was offered to me at the time because they had put a number of instructors in and everyone of the instructors that went in left, one left after three days… a much less physical job". He said he changed to that job because "it was more mental oriented, far less physical". Before changing jobs he was "not able to physically do the type of work that I would need to do to have a reasonably good lifestyle out of it".

The loss of earnings claim.

By notice for particular dated the 5^th October, 1999 the plaintiff was asked, inter alia, to say how the sum claimed in respect of loss of earnings and future loss of earnings was computed and made up. This was initially replied to by stating that a report was awaited from his accountants. On the 9^th March, 2001 this report was furnished. It dealt with his earnings for the years 1997, 1998 and 1999 under the headings "Actual sales, Actual net earnings, Budgeted sales and Budgeted net earnings". It also said that his business had ceased to trade from the 30^th August, 2000 "due to financial difficulties and is presently being wound up which included disposal of the remaining assets and settlement of outstanding creditors".

On the 10^th June, 2002 the plaintiff's solicitor furnished a further letter alleging various continuing symptoms including "headaches, neck pain with restriction of movement of 25% and pain spreading to his shoulders and right arm with a feeling of tightness in the muscles of his right arm and spasmosis in his shoulder and neck together with difficulty in lifting turning and bending, which affects his occupation as a motor engineer".

The plaintiff had not worked as a motor engineer for almost two years prior to date of this letter.

The plaintiff's solicitor also said that he continued to have pain in his lower back muscle spasm and 25% restriction of movement. He continued:-

"All of which has created difficulty in his continuing to work and has prevented him to work at the level of which he was capable of prior to the accident and which he would have hoped and expected to work at subsequent to the accident, with consequent loss of business and earnings as projected in (the accountant's letter)".

Although the last letter was not in response to any correspondence from the defendants, its context was that on the 13^th July, 2001 the defendants had asked specifically whether or not the plaintiff's claim for loss of earnings was continuing and the plaintiff's solicitors had replied that "as pleaded our client has a claim for continuing loss of earnings".

Evidence at the trial.

(a) Loss of earnings.

The plaintiff in his direct evidence proved the figures set out in the accountant's letter and said that, in relation to the year 1999, his actual earnings were about £10,000 less than his budgeted or projected earnings. He explained that this was because he was not able to work as hard or as effectively as he might have, due to his injury, and because he was maintaining machinery which was not fully utilised. At the end of the direct evidence the judge asked expressly what was being claimed for loss of earnings. He was told "There is no specific sum being claimed for loss of earnings, it is part of the general damages as such My Lord". The correspondence summarised above was then produced by the defendant and the learned trial judge, correctly in my view, said "… The accounts seem to suggest that they are claiming the difference between the actual earnings and the budgeted earnings". Notwithstanding this, the plaintiff's counsel stated at the trial that the loss of earnings was not alleged to be an ongoing loss.

The plaintiff was rigorously cross-examined as to his capacity for work at different times. It must be said that his answers in the transcript appear evasive. He was specifically asked whether as a result of his injuries he was prevented from doing the sort of work he had been doing at the time of the accident and stated eventually "If that was the type of work that you are constantly doing, yes I wouldn't be able to do it". He agreed that he had not said that to his doctors. He also stated that he was not making a claim for loss of earnings into the future, from the time of trial. He was cross-examined as to the correspondence and the learned trial judge said correctly in my view, speaking of the correspondence:-

"… There is no limit on it there. It looks, as I read it, it looks as if a claim for future loss of earnings. Certainly when you read it in the context of the other correspondence it can mean nothing else".

The plaintiff said that he was still affected by his injuries but to a lesser extent than previously. There then began the exploration of a series of themes in relation to which the plaintiff was uniformly evasive. He was asked what vehicles he had owned and it took twelve questions to get a complete answer, in particular that he had owned an Opel Kadet van. It then transpired that the address which the plaintiff had given in his statement of claim was one at which he had not lived since 1993.

The reason for these difficulties and evasions transpired to be that the plaintiff is now living in premises, 58a St. Margaret's Avenue, Kilbarrack. This was a house built in the grounds of another house, 58 St. Margaret's Avenue, and built in the year 2001. It was put to the plaintiff that he had in fact built the house where he resided and he said "I did a certain amount of work yes". He said he did some carpentry. Cross-examination continued over several pages of transcript before he stated "There was some concrete mixed". He was then asked whether he had mixed concrete and agreed that he had. He also agreed that he had collected material, including sand, in bags which he loaded into the back of the Opel Kadet van. Asked what proportions of cement and sand he mixed he gave a vague answer. Asked whether he had mixed it he said "I have watched people doing it". Pressed further he said "I did mix some of it yes".

The video.

It transpired, as might have been expected from certain of the questions in cross-examination, that the defendants were in possession of a video tape dating from March 2001, showing the plaintiff engaging in building work in Raheny and various ancillary activities. On the 10^th March, 2001 the plaintiff was seen taking a trailer to a Land Rover vehicle and attaching the trailer. A fortnight later he was in a white vehicle with a load of timber. He was seen leaving premises in that vehicle and coming back with the vehicle loaded with sand. This was the Opel Kadet. He was shown unloading the bags of sand from the back of the vehicle. Subsequent to this he left in the same vehicle and came back with cement in the back of the vehicle. On Sunday the 31^st March, 2001 he was seen, at No. 58a moving a cement mixer from the garage and commencing "mixing, concrete or cement or whatever". He was seen lifting bags and filling the mixer on a number of occasions throughout the afternoon. He was seen lifting a bag of cement and unloading mix into a wheelbarrow.

The effect of these observations is discussed in the learned trial judge's judgment, mentioned below.

(b) Medical evidence.

Mr. Paul McNamee, Orthopaedic Surgeon, gave evidence on behalf of the plaintiff. He referred to a previous traffic accident which had occurred in 1990 and in respect of which he saw the plaintiff for the last time in 1992. He saw him in connection with this incident in March of 1997 and heard his complaints of problems with his neck, back and knee. He found no neurological deficit and advised physiotherapy. Clinically "he had some decrease in neck movements". Mr. McNamee could not quantify them but thought there was a reduction greater than 25%. Mr. McNamee knew the nature of Mr. O'Connor's work. He did not advise him to change jobs. He did not refer him for radiological examination and saw him in all on three occasions, the last being two years after the first. On first seeing him he thought he would make a full recovery within six months. He was surprised when he saw him next having regard to the length of time since the accident. He struck him "as being a genuine sort of man in his complaints". He did not complain to him about being unable to do his work or about having difficulty managing in that area. He was not aware until the hearing that the plaintiff had changed his job. When, in October 2000, Mr. McNamee wrote 'I do not feel that this man's injury should cause him to give up the sort of work that he is doing now', he did not realise that he had in fact changed his work by that date. He thought he was still a motor engineer, and that he was fit for that job.

The judgment.

The learned trial judge gave judgment on the 3^rd day of the hearing, having reserved it overnight. He concluded that soft tissue injuries were a probable consequence of the sort of accident which the plaintiff had but that it was equally probable "that those injuries were of a very moderate nature". He noted that the plaintiff claimed to have ongoing problems and held, for reasons which he gave, that these complaints were inconsistent with the evidence of Mr. McNamee. The learned trial judge held that the plaintiff's evidence in that regard was also inconsistent with his accountant's certificate stating that he had ceased to trade due to financial difficulties. Thirdly the learned trial judge held that the evidence about ongoing difficulties was inconsistent with the activity shown on the video tape.

As the result of this the learned trial judge held that:-

"I have no doubt that Mr. O'Connor grossly exaggerated the symptoms which he alleged that he experiences as a result of the injuries which he suffered in the accident which gave rise to this claim".

He continued, however, to say that he was not persuaded:-

"… that he told me deliberate lies. While I do not believe that he was anything like as bad as he purports to have been since his accident, I am convinced that he believes everything that he has told me. In other words, while I think that he is misguided and a lot of his problems, particularly his alleged ongoing problems, are a figment of his imagination, I think that basically he is an honest person. I am persuaded of this for four reasons: firstly that he never stopped working since his accident, secondly that he never denied engaging in any of the activities that Mr. Price filmed him doing, thirdly that he conceded not only improvement over the years, but also that he had remissions which lasted for months, and fourthly that Mr. McNamee thought that he was a genuine person".

The learned trial judge repeated that he regarded the injury as a very moderate one. He was not persuaded that the plaintiff suffered any reduction in income and assessed damages in the sums mentioned above.

Dismissal for abuse of process.

In urging that the action should be dismissed on this ground, the appellants relied heavily on certain dicta of Denham J. and of my own in Vesey v.Bus Eireann (Supreme Court unreported 13^th November, 2001) and Shelly-Morris v. Bus Átha Cliath (Supreme Court unreported 11^th December, 2002). I am entirely happy to reiterate all that was said in those cases. But the learned trial judge's finding, to the effect that the plaintiff's description of the effect of his injuries was grossly exaggerated, but not deliberately dishonest, is a huge obstacle in the way of the submission that the plaintiff's claim should be dismissed, basically for dishonesty in advancing it.

In Vesey, I rejected the submission, advanced on the basis of an analogy with the power to award exemplary damages as a mark of disapproval of the defendant's mode of defence, that there was a power to reduce a plaintiff's damages as a mark of disapproval of his exaggeration or dishonesty. I did this on the basis that there was no direct analogy between the two: "… exemplary damages are a graft upon the plaintiff's entitlement to compensatory damages and an award of damages of the latter sort is a condition of the award of exemplary damages". I went on to refer to certain cases which exemplified the power of the American Courts to dismiss an action for "flagrant bad faith" and noted that the context in which Irish litigation takes place, particularly in relation to the Courts powers in relation to costs, is somewhat different. I went on to say "But there is plainly a point when dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose upon the other party".

In Shelly-Morris, I cited with approval what Lord Denning said in Goldsmith v. Sperrings [1977] 2 AER 566:-

"In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked by the vindication of mens rights of the enforcement of just claims. It is abused when it is diverted from its true course as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process if they can before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrong doer".

Commenting on this passage and another cited in Shelly-Morris, I said:-

"I have no doubt that these principles are equally applicable in this jurisdiction. It must not be thought that a falsehood in respect of one aspect of the claim will, at worst, lead to that particular part of the claim being reduced or disallowed. The Courts have a power and a duty to protect their own processes being made the vehicle of unjustified recovery. In a proper case this will be done by staying or striking out the plaintiff's proceedings".

That drastic step was not taken either in Vesey or in Shelly-Morris. It is manifest, therefore, that the passages in question are obiter, and this is reiterated by Murray J. in his judgment in the present case. Nevertheless, they were made for good reason. Both of the cases mentioned were cases of grave dishonesty in the prosecution of claims for damages for personal injuries. This was not seriously disputed on the part of the plaintiffs, but their respective counsel went on to make submissions, summarised in each of the judgments, to the effect that the legal consequences of this dishonesty should be limited to the particular aspects of the case to which it related. I rejected these submissions for the reasons set out in the judgments, most of which are self-evident, and some of which are mentioned in the judgment of Murray J. in the present case. These relate to the effect of proven or manifest dishonesty having regard to the plaintiff's onus of proof.

But even in a case where the plaintiff is able otherwise to discharge the onus of proof that rests on him, established dishonesty may still require notice. In Vesey, a case where liability was not an issue, the learned trial judge had found that the plaintiff had lied to the Court, to his own doctors and to the defendant's doctors. These trenchant findings, some of which were indicated in the course of the trial, elicited only the extraordinary submission that it was the responsibility of the Judge "to disentangle" the genuine from the exaggerated portions of the plaintiff's own evidence, and make an award accordingly. It was in that context that I said, and would now repeat, that "There is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose on the other party".

Why say this at all in a case where it is not intended to act on it? Precisely because, as is pointed out in Shelly-Morris, the well established principles in relation to abuse of process have been little considered in the particular context of personal injuries claims. This in itself has consequences: in Vesey I found that even if there were a power to reduce damages in respect of dishonesty "… it would not be appropriate to exercise it without warning in the circumstances of the present case". The two cases now under discussion are quite dramatic examples of grave and premeditated dishonesty in the pursuit of damages for personal injuries. They are not unique in this respect, even though I believe the majority of plaintiffs present their cases in a straightforward way. But because exaggeration is not unknown it is fair publicly to state what I believe to be the inherent powers of the Court in cases of gross dishonesty, precisely so as to remove the possible unfairness involved in exercising those powers without warning.

A significant number of personal injury claims feature injuries which are not, or not wholly, capable of being proved or negatived by the normal processes of clinical medicine. The credibility of the plaintiff is central in such cases, some of which are very substantial ones. Video surveillance of the kind featured in this case is often resorted to as a check or control of the plaintiffs' account. On the subject of this surveillance, I would recall what I said about fixed video cameras in Dunne v. DPP [2002] 2 IR 305 at 324:

"The near ubiquity of video cameras in urban settings is such that it demands the specific attention of the Courts if their judgments are to be realistic in a contemporary setting. The innovation required is one of adaptation to new technology rather than one of principle."

It is this process of adaptation which may require the Courts to ensure that their procedures, including those relating to abuse of process, are fully responsive to the availability on occasion of crucial and coercive evidence, whether in video form or otherwise.

The foregoing discussion is itself obiter in the present case, as is the lengthy and illuminating discussion of abuse of process in the judgment of Murray J. in the present case, which has occasioned it. The reason for this is the learned trial judge's finding that the plaintiff here was not subjectively dishonest.

On the hearing of appeals of this sort one must always recall the well known and very often cited words of McCarthy J. in

Hay v. O'Grady [1992] 1 IR 210 at 217:-

"An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial".

There is ample reason to think that the plaintiff was a cautious and wary witness, one prone to repeat questions instead of answering them, to offer irrelevant evidence and to attempt to probe what the defendant knew already before making concessions. But the learned trial judge who saw and heard him has held that he was honest but misguided in his exaggerated account of the effect of the injury. That is not a finding which, in the absence of something coercive, this Court can disregard. The work of which the plaintiff was shown to be capable by the video tape is indeed inconsistent with the plaintiff's account of continuing disability. But it must be noted that (unlike Shelly-Morris) the plaintiff did not actually deny an ability to perform these tasks. The learned trial judge's assessment of his state of mind in giving the vital evidence about continuing disability must therefore subsist. In my view, this in itself is inconsistent with regarding the case as an abuse of process or an attempt to impose on the defendant.

It appears to me that a good deal of the difficulty in this case arose from the fact that the plaintiff avoided being specific about the scope of his claim for loss of earnings. Such a claim should, unless there is something which renders this course impossible, be pleaded as special damage and the distinction between special and general damage should be maintained. Over a hundred years ago, in Ratcliffe v. Evans [1892] 2QB 424 special damages were described as "that particular damage (beyond the general damage) which results from the particular circumstances of the case and of the plaintiff's claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial".

In this case the claim to special damages in respect of loss earnings was left at an unacceptable level of vagueness. The claim was being maintained (at least until the trial itself) but it was not quantified. At the trial, this heading of claim was said to be "part of the general damages as such." Not until after the plaintiff's direct examination had ended was it established that no claim for loss of earnings into the future was then being urged.

In my view it should be perfectly clear, long before a claim for damages for personal injuries reaches a courtroom, whether the plaintiff is maintaining a claim for special damages in the form of loss of earnings; what the amount of that claim is; and whether it is claimed that this loss will persist into the future and in what amount. In many cases, such as the present one, a justified claim for loss of earnings into the future will make the difference between a claim which could properly be brought in the Circuit Court and one which requires the High Court jurisdiction to be invoked.

Costs issues.

The learned trial judge made an order granting the plaintiff Circuit Court costs with a certificate for senior counsel. Having regard to the terms of s.17(1) of the Courts Act, 1981, as inserted by s.14 of the Courts Act, 1991, he could not have made any more favourable order. The defendant, however, invited the learned trial judge also to make an order under sub-section 5 of the same Section. The text of this sub-section is set out in the judgment of Denham J. The effect of it is to provide a disincentive to the taking of an action in a higher court than is necessary. It provides that where a plaintiff obtains an award of damages which could have been made by a lower court the trial judge has a discretion to order the plaintiff to pay a sum of money to the defendant. This sum is to represent the additional cost incurred by the defendant in defending the action in a higher court, when it might have been taken in a lower court.

In refusing to make such an order the learned trial judge had regard to what appears to be the only authority on the Section, the decision of this Court in Mangan v. Independent Newspapers (Ireland) Limited (Supreme Court unreported 31^st January, 2003). There, McCracken J. pointed out that an order under sub-section (5) may be made by the trial judge "if in all the circumstances he thinks it appropriate to do so" and observes that this phase undoubtedly confers a discretion on the trial judge. Moreover, that case was a libel action in which different criteria may apply, as appears from the last paragraph of the judgment of McCracken J. I would also say that in such cases there may well be legitimate reasons why a plaintiff may wish to seek vindication at the hands of a jury, a mode of trial available only in the High Court.

In the present case, the learned trial judge explained the exercise of his discretion as follows:-

"I think the only reason why I would exercise my discretion against the plaintiff would be if I was satisfied that the claim for future loss or the claim for loss of earnings was a fraudulent one. As I have indicated, I think it was a misguided one, and I don't think he is entitled to succeed in it, but I am not convinced that it was fraudulent, and I am not convinced that it was fraudulent because, as I have said, I think Mr. O'Connor was a misguided but honest person and I think he believed that his input into his business had gone down, with the result that it wasn't getting the returns it did".

I have already indicated that it is not possible for the defendant to go behind the finding that the claim for future loss of earnings was not a fraudulent one. But I do not think that that finding is determinative of the application under s.17(5). If the legislature had intended to create a power to make an order of the sort mentioned in the sub-section only where the claim or some aspect of it was found to be fraudulent, it would have said so. Instead it employed the broader phrase "… if in all the circumstances he thinks it appropriate to do so …".

Moreover, looking at s.17 as a whole, it seems clear that the legislative purpose is to provide a strong incentive to the institution of proceedings, generally, in the lowest court having jurisdiction to make the award appropriate to them. In this case, it is now beyond argument that the plaintiff's claim could have been dealt with quite adequately in the Circuit Court. This did not occur. The reason it did not occur, as I have already found, was that the plaintiff maintained a studied vagueness on the amount of his claim for loss of earnings. In his statement of claim he pleaded this as an item of special damages, but did not quantify it. In 2001, nearly five years after the accident, he confirmed that he was maintaining a claim for future loss. He did not resile from this position until after his direct evidence had concluded. His claim for loss of earnings was at all times kept vague, eventually to the extent that he said it should be regarded as an aspect of general damages.

It is to be noted that the statement of claim in this case was not delivered until three years after the accident. At least by that time, and probably much earlier, any realistic assessment of the plaintiff's claim would have led to the conclusion that the Circuit Court jurisdiction was more than adequate to it. The eventual award, in respect of both general and special damages, amounted to a sum just over half the Circuit Court's maximum jurisdiction in tort claims.

Furthermore, the case was not one in which a motion to remit the matter to the Circuit Court would have seemed indicated on the information available to the defendants. It may be that they had this option in mind when they inquired, in mid 2001, whether a claim for future loss was being maintained, but they were told that it was. Such a claim, for all they knew, could easily have taken the case well into the jurisdiction of the High Court.

The plaintiff never realistically assessed his case, it seems to me, until he was actually in the witness box, and then with the greatest reluctance. He did not resile from a claim for future loss of earnings until after his direct evidence had concluded when he did so through counsel. Only a substantial claim under this heading could justify seeking compensation for what the learned trial judge accurately described as a very moderate injury in the High Court.

Discretion.

It is beyond dispute that the power to make an order under sub-section 5 of S.17 is a discretionary one. The learned trial judge exercised this discretion on the basis that:-

"…The only reason why I would exercise my discretion against the plaintiff would be if I was satisfied that the claim for future loss or the claim for loss of earnings was a fraudulent one".

I do not think that, in order to trigger the discretionary power to make an order under sub-section 5, there must be a finding that the claim or some part of it is fraudulent. The Statute does not limit the discretion in this way. If this Court were to do so, it would in effect be adding words to the Section and a precondition to its operation which the legislature did not wish to do. It follows that the discretion was exercised on an improper basis in this case and that this Court should substitute its own exercise of the discretion.

In my view the sole fact which triggers the discretion is that the plaintiff was awarded a sum, in the High Court, which a lower court would have had power to award. This fact alone does not, of course, require the Court to make an order under sub-section 5. For example, where the award is very close to the limit of the jurisdiction of the lower court or where there has been some unpredictable development during the trial which has an effect in reduction of the ostensible value of the claim, there may be good reason for exercising the discretion in favour of the plaintiff.

Here, however, the issue most relevant to the exercise of the discretion is that any realistic assessment of the plaintiff's case, on the facts as known to him at the time the Statement of Claim was drafted, would have led inexorably to the conclusion that this was a case well within the Circuit Court jurisdiction. But no such assessment took place, apparently because the plaintiff never attempted the essential exercise of quantifying his claim for loss of earnings.

The core issue in this case was the quantum of damages. The injuries were "of a very moderate nature". No reasonable person could have thought that those injuries in themselves would have required proceedings in the High Court. The only substantial additional sum which could be claimed was for loss of earnings: a large sum under this heading would have been required to take the Court case into the High Court jurisdiction. Moreover, on the plaintiff's own figures, this sum would have had to include an allowance in respect of future loss. At the trial, the plaintiff simply and unilaterally resiled from any claim under this heading: he was not constrained to do so by any new fact proved. He could have done this at any earlier time but did not do so either through failure to address the question of quantum at all or in the pursuit of some tactical advantage.

On these facts, in my view, an order pursuant to sub-section 5 should be made if we are to give effect to the legislative intention in enacting that provision.

I do not consider that this position is altered by the fact that the defendant, quite apart from seeking an order under sub-section 5, also maintained that the plaintiff's claim should have been dismissed as an abuse of process by reason of gross exaggeration. There was nothing frivolous about this contention. The learned trial judge held that the plaintiff "grossly exaggerated the symptoms which he alleged that he experiences…" and that "… a lot of his problems, particularly his alleged ongoing problems are a figment of his imagination". This was always the defendant's view and must have been supported in its mind by the video evidence which it obtained. In my view this justified them in challenging the plaintiff's honesty: they were entitled to this and had a rational basis for doing so. That position is not affected by the findings that the learned trial judge went on to make, that the plaintiff was not dishonest and had a genuine subjective belief in the grossly exaggerated account which he gave of his symptoms. Because of these findings (as I have held) the defendant cannot pursue its claim for relief based on the proposition that the proceedings were an abuse of process. But that fact is irrelevant to the quite separate issue of whether we should, in our discretion, make an order pursuant to sub-section 5. If we were to accord it any relevance we would in my view be falling into a variant of the error which affected the exercise of the discretion in the High Court, by regarding the question of subjective honesty or dishonesty as key to the exercise of the discretion under that sub-section.

In a case where fraud or dishonesty is irresponsibly pleaded, the Court has a number of options. A written pleading may be struck out. If the plaintiff wins, he may be awarded exemplary damages in respect of a groundless attack on his character, as occurred in the case of Crawford v. Keane [High Court unreported Barr J. 7^th April, 2000]. If the plaintiff loses on other grounds, the baseless allegation may affect the Court's discretion as to costs. Equally, in a situation where the defendant is able to make an application under s.17(5) a groundless or irresponsible plea of dishonesty may affect the exercise of the Court's discretion. But the present case is not in any of these categories, for the reasons given above. The fact that the plaintiff, whose evidence was "grossly exaggerated" and part of whose claim was a "figment of his imagination", was despite this a subjectively honest man is something which could only have been discovered on vive voce examination and direct assessment by the learned trial judge. On the facts of this case, the issue of the plaintiff's subjective honesty, properly but not predictably resolved in his favour, is not relevant to the discretion under s.17(5). What is relevant is this: the plaintiff's claim was never one appropriate to the High Court jurisdiction; the claim for future loss of earnings was one which should never have been made and, once made, should have been withdrawn years before the full hearing at which it was in fact withdrawn; and the case could have been more quickly and more cheaply resolved in the Circuit Court. The fact that this did not happen was due either to total inattention on the part of the plaintiff to the value of his claim or alternatively to the pursuit by him of some perceived tactical advantage in taking his case in the High Court. In either event the mischief of litigation which is more elaborate and more expensive than it should be is precisely the mischief at which s.17(5) is aimed. Unless the Court, by the exercise of its discretion, imposes a price on those who thoughtlessly, or in pursuit of tactical advantage, embark on litigation which is elaborate and expensive when it could have been simpler and cheaper, the intention of the legislature will in my view be frustrated. Litigation which is unduly elaborate and expensive imposes a cost on others: most directly on the defendant but on wider groups and on society as a whole in the form of a social cost. The legislative intent in s.17(5) is, in an appropriate case, to impose the cost of overblown litigation, or part of it at least, on those who make it so.

In all these circumstances it seems to me appropriate to make an order under sub-section (5) of s.17. I would therefore accordingly order that the plaintiff pay to the defendant an amount equal to the difference between the sums mentioned in s.17(5)(a)(I) and (II) respectively.

Conclusion:

I would dismiss the appeal and affirm the order of the learned trial judge. I would, however, also make an order pursuant to s.17(5) of the Courts Act, 1981 for the payment by the plaintiff to the defendant of a sum calculated in the manner described in the preceding paragraph.