The Court of Appeal has observed that section 26 of the Civil Liability and Courts Act 2004 does not adequately address situations where a “bogus claim” is advanced but later withdrawn before trial, with Mr Justice Charles Meenan remarking that the issue “ought to be a matter that is addressed by way of making suitable provision by statute”.
The case arose from a road traffic accident involving the respondent and an unidentified driver in July 2015. The respondent claimed to have sustained personal injuries and pursued proceedings against the Motor Insurers’ Bureau of Ireland (MIBI). Prior to the accident, the respondent had worked as a stonemason before financial difficulties arising from the economic downturn led him to participate in a Community Employment Scheme and later establish a business organising hunting trips for tourists.
A dispute emerged at trial as to whether the respondent’s departure from stonemasonry resulted from injuries allegedly sustained in the accident or from economic circumstances unrelated to the collision. In support of a substantial claim for loss of earnings, the respondent provided inaccurate information to medical experts and served particulars claiming loss of earnings in excess of €621,000 on the basis that he would otherwise have continued working as a stonemason. That claim was abandoned the day before trial.
The MIBI also relied on video evidence which appeared to show the respondent engaging in physical labour without apparent difficulty. It applied to dismiss the proceedings pursuant to section 26 of the 2004 Act, arguing that the respondent had knowingly provided false or misleading information to medical experts and had pursued a dishonest loss of earnings claim.
The High Court refused the application under section 26, although the trial judge expressed reservations regarding the extent of the respondent’s injuries and whether many of his symptoms were attributable to the accident. The respondent was ultimately awarded €45,000 in damages, together with a differential costs order in favour of the defendant.
On appeal, the MIBI challenged the refusal to dismiss the proceedings under section 26. Delivering judgment for the Court of Appeal, Mr Justice Meenan analysed the statutory provision and noted that it concerns evidence which is false or misleading in a material respect and which the party knows to be false or misleading. He further observed that even where those elements are established, dismissal is not automatic where the court considers that dismissal would result in injustice.
The court emphasised that the test under section 26 is subjective rather than objective and highlighted the importance of the trial judge’s assessment of the plaintiff. In that regard, Mr Justice Meenan referred to the principles in Hay v O’Grady, which limit the ability of appellate courts to interfere with findings of fact supported by credible evidence.
Mr Justice Meenan also questioned the practical utility of judicial reliance on witness “manner” and “demeanour”, remarking that such concepts are rarely of assistance in determining whether findings are supported by credible evidence and may place judgments beyond effective appellate scrutiny.
The Court of Appeal agreed with the High Court that although the respondent knew there was no basis for the figures advanced in the loss of earnings claim, those particulars had been withdrawn prior to trial and therefore did not amount to “evidence” for the purposes of section 26(1). Nor had there been a verifying affidavit capable of engaging section 26(2). The court rejected the MIBI’s argument that the discovery of an actuarial report amounted to a verifying affidavit.
Nonetheless, the court agreed with the trial judge that the withdrawal of inaccurate particulars did not necessarily cure the prejudice caused, particularly where such claims could materially affect settlement decisions or lodgements. Mr Justice Meenan concluded that the case exposed a legislative gap in section 26, observing that it does not currently provide for circumstances where a claim is advanced and then withdrawn before it can formally constitute evidence.
Accordingly, the Court of Appeal dismissed the appeal.