Title:	O'Connor -v- Bus Átha Cliath - Dublin Bus
Neutral Citation:	[2003] IESC 66
Supreme Court Record Number:	144/03
High Court Record Number:	1999 4365 P
Date of Delivery:	12/18/2003
Court:	Supreme Court
Composition of Court:	Denham J., Murray J., Hardiman J.
Judgment by:	Denham J.
Status:	Approved
Judgments by Link to Judgment Concurring Denham J. Link Murray J. Link Hardiman J. Hardiman J. Link Murray J.

BETWEEN/

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 28th 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 19th 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 26th and 27th March, 2003. The learned trial judge reserved judgment overnight and delivered judgment on 28th 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 I.L.R.M. 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 11th 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.”

“As I say, I think that the plaintiff has established on the balance of probability that he did suffer an injury on the 19th 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.”

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.

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 I.R. 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.”

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 30th 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.”

“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.

In Shelly Morris v. Bus Atha Cliath [2003] 1 I.R. 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 I.R. 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.”

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.”

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, 31st 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).”

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.