Supporting Documents:
58-18 AFL.doc 58-18 Rspnts Notice.pdf

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Third Named Defendant / Applicant to appeal to this Court from the Court of Appeal

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 24th January, 2018

DATE OF ORDER: 21st February, 2018

DATE OF PERFECTION OF ORDER: 22nd March, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 18th April, 2018 AND WAS IN TIME.

REASONS GIVEN

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Irvine, Hogan and Whelan JJ.) delivered on the 24th January, 2018, and from the resulting Order of that Court made on the 21st February, 2018, and perfected on the 22nd March, 2018.

2. Mr Charles McDaid, the third named defendant/applicant, is the only party who seeks leave to appeal to this Court from the said judgment and Order of the Court of Appeal. He is referred to in this Determination as “the third defendant” or “the applicant”. Mr David McLaughlin, who opposes the application, is referred to in this Determination as “the plaintiff” or “the respondent”.

Jurisdiction

3. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many Determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

4. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment have now been considered in a large number of Determinations and are fully addressed in both a Determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESC DET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Cooper (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this Determination.

5. It should be noted that any ruling in a Determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court’s consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.

Background and Procedural History

6. The full facts and background of the case may be found in the written judgments delivered by the High Court ([2015] IEHC 810) and the Court of Appeal ([2018] IECA 5) in the within proceedings and in the parties’ respective documents on this application for leave. Accordingly, what is presented here is a brief summary for contextual purposes only.

Facts and Trial

7. This application arises out of a personal injuries claim brought by the plaintiff against the defendants. The underlying incident occurred on the 26th June, 2003, when the plaintiff was seventeen years old. He suffered devastating injuries to his right foot at a quarry at Crislaghkeel, Burnfoot, County Donegal, which the trial judge found belong to one or more of the defendants. The trial judge also found as a fact that the plaintiff was working for McDaid Quarries Limited at the relevant time. The injuries were sustained when a fifty-five ton Halla 555 track excavator was driven over his foot by a Declan Doherty who was, on the day in question, working for the appellants. Full details of the injuries sustained and their consequences can be found in the judgments of the courts below; it will suffice to say that following a number of surgeries the plaintiff ultimately had to have the distal half of his right foot amputated.

8. In his original statement of claim, delivered on the 1st March, 2006, the plaintiff maintained that he had sustained his injury when a motor lorry, bearing the registration number 98 DL 3021, allegedly owned by the second, third and/or fourth defendants, was driven over his foot at the quarry. This claim was purportedly verified by the plaintiff in an affidavit dated the 5th September, 2006. The Motor Insurers’ Bureau of Ireland (“the MIBI”) was joined to the proceedings so that if necessary the plaintiff could obtain an order directing it to satisfy any judgment he might obtain against the other defendants. From the plaintiff’s perspective, he would be in a much improved position if his injuries had been caused by a motor lorry, which would require to be covered by an approved policy of motor insurance, as compared to that which he would be in if his injuries had been caused by a vehicle such as a digger, in respect of which no such policy would normally be required. In the former case, subject to certain conditions, he would be entitled to an indemnity from the MIBI in respect of any unsatisfied judgment concerning his injuries, whereas in the latter case he would have no such entitlement.

9. By application dated the 22nd April, 2009, the MIBI sought to have the plaintiff’s claim dismissed on the grounds that he could obtain no relief against it. Two factors were cited in support of this contention. First, the accident was identified as having occurred on private property, where no approved policy of insurance was required, rather than in a public place. Second, it was apparent from the hospital records that the plaintiff had advised that it was the track of a digger, rather than the tyre of a lorry, that had driven across his foot. This evidence was corroborated by the evidence of a Garda Sergeant who had interviewed the plaintiff after the accident. Although neither this Court nor the Court of Appeal was furnished with the order made on foot of this motion, it seems likely that the court made an order that the proceedings be dismissed against the MIBI. Proceedings against the first defendant were also discontinued at a certain point.

10. In April, 2014 the plaintiff sought leave to amend his statement of claim to substitute the word “digger” for the words “motor vehicle registered letters and numbers 98 DL 3021”; he was granted leave to so amend. That statement of claim was allegedly verified by an affidavit sworn by the plaintiff on the 22nd December, 2014. From that point on he has maintained that the injuries he sustained were caused by a digger driven over his foot by Mr Damien McDaid, then the first named defendant. It appears not to have been disputed by the plaintiff in the High Court that his original statement of claim was fraudulent insofar as he had set out to convince the court that his injuries were caused by the negligent use of a motor lorry, which he believed would entitle him to recover any award of damages made in his favour from the MIBI without recourse in the first instance to the McDaids, which entitlement he would not have enjoyed if his injuries had been found to have been caused by the digger, as had in fact been the case.

11. The trial was held before Hanna J. in the High Court. Counsel for the second, third and fourth defendants urged the trial judge to dismiss the plaintiff’s proceedings on the basis that it had clearly been his intention to advance a claim which was false and misleading on its facts. The statutory basis for such application was section 26 of the Civil Liability and Courts Act 2004 (“the 2004 Act”). The relevant subsections of section 26 provide as follows:

“(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that–
(a) is false or misleading, in any material respect, and

(b) he or she knows to be false or misleading,

the court shall dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that–
(a) is false or misleading in any material respect, and

(b) that he or she knew to be false or misleading when swearing the affidavit,

dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.” (Emphasis added)

12. The learned trial judge delivered his judgment on the 10th December, 2015 ([2015] IEHC 810). Although he accepted that the plaintiff had been the author, in nominal terms, at least, of a false claim, he was satisfied that he had done so at the behest of and under the influence of the second and third defendants. He was satisfied, on the evidence, that the description of the accident involving a lorry, rather than the digger, was created and promulgated by those defendants with a view to engineering a false and misleading claim against the insurance company. He accepted that the plaintiff had been persuaded to go along with this story because of the emotional hold which the third defendant seemed to exercise over him and the fact that he was a minor who suffered from learning difficulties and was, as such, a vulnerable person. The trial judge also observed that he was satisfied that the evidence actually advanced by the plaintiff at trial was truthful.

13. Having considered the evidence, the learned trial judge was satisfied that he plaintiff was entitled to succeed in his action for damages on the grounds of the negligence, breach of duty and breach of statutory duty of the second, third and fourth defendants. Although only 17 years of age, he had been caused or permitted to operate machinery for which he was neither trained nor qualified and do so without any or adequate supervision or means of communication with another machine operator. The learned judge identified various statutory provisions which had been breached by the said defendants (para. 111). He further noted that such defendants were also in breach of their common law duties as employers insofar as they failed to provide, inter alia, a safe system of work, a safe place of work, or any adequate training or supervision for the plaintiff. Mr. McLaughlin was awarded €453,000 in damages, consisting of €100,000 for pain and suffering to date, €150,000 for pain and suffering in the future, €3,000 in special damages to date (including loss of earnings and allowance for prosthesis) and €200,000 in special damages into the future.

14. Although the learned judge accepted that the plaintiff had played a part in promoting the initial false claim, he noted that the terms of subs (1) of the 2004 Act gives the Court jurisdiction to dismiss proceedings when misleading evidence has been advanced by or on behalf of a plaintiff. This in his view governs what occurs at trial. Here, the plaintiff had openly and candidly accepted what had occurred to the date of trial and thereat had offered truthful evidence in support of his case.

15. Finally, the judgment clearly acknowledged that the plaintiff had verified the false account of the accident in his affidavit of 5th September, 2006. The learned judge described such misleading evidence as being an extremely serious matter and one which must weigh heavily against the deponent. However, having given due consideration to all of these matters and having considered the overall context in which they occurred, including the vulnerability of the plaintiff and his relationship with the McDaids, in particular with the third named defendant/appellant in this appeal, the action should not be dismissed as by so doing an injustice would be caused.

The Court of Appeal

16. The second, third and fourth defendants appealed the judgment and order of the High Court to the Court of Appeal: they did so essentially on two grounds, firstly that the trial judge erred in failing to dismiss the action under the statutory provision above mentioned and secondly, that the damages awarded were excessive. The judgment of the Court was delivered by Irvine J. (Hogan and Whelan JJ. concurring) on the 24th January, 2018 ([2018] IECA 5).

17. Irvine J., in giving judgment, firstly observed that the defendants in question had failed to take up the DAR of the High Court hearing, having obtained permission to do so: secondly, that no Books of Appeal had been lodged and finally, that they had also failed to file written submissions over a thirteen month period.

18. In outlining the background circumstances to the substantive appeal, the learned judge referred to the judgment of the High Court and in particular to the findings of Hanna J., dealing with the surrounding events which engaged the provisions of s. 26 of the 2004 Act: she also considered the relevant sections of that statutory measure and some of the existing case law dealing with its application, including Farrell v. Dublin Bus [2010] IEHC 327 and Nolan v. O’Neill & Mitchell [2016] IECA 298. Recapping on the judges findings, including the vulnerability of the plaintiff and his relationship with the personal defendants, Irvine J. identified the following as being the question which the court had to address:-

“Given the wording of the section the essential question for this Court on appeal is whether the reasons identified by the trial judge provide good and sufficient reason for his decision that it would have been unjust in all of the circumstances to have dismissed Mr. McLaughlin’s claim by reason of his aforesaid breach.” (para. 43 of the judgment)

19. Having reviewed the evidence in depth, the court was entirely satisfied that the trial judge was correct in his approach to the assessment of witness credibility and that his relevant findings, as summarised at paras. 12 and 13 above, were supported by acceptable evidence. Accordingly, in line with the principles of Hay v. O’Grady [1992] 1 I.R. 210, such could not be disturbed by the appellate court. The conclusion of Irvine J. on this aspect of the case was summed up as follows:

“…[as being] satisfied that the matters relied upon by Hanna J. as the basis for refusing to dismiss Mr. McLaughlin’s claim under s. 26 of the Act were matters material to the proper exercise of his discretion and that they provide good and sufficient reason to support his conclusion that it would have been unjust have regard to all the circumstances to dismiss the claim.” (para. 67 of the judgment)

20. On the question of damages the court was satisfied that the individual amounts as awarded, under each heading of claim, were fair, reasonable and proportionate to the injury suffered and the consequences thereof as befell Mr. McLaughlin. In addition, the overall sum could not be said to be excessive.

Appeal to this Court

21. The sole applicant to this Court, Mr. Charles McDaid, now seeks leave to appeal against the entirety of the said judgment and Order of the Court of Appeal. The respondent opposes the application for leave and will ask this Court to dismiss the appeal if leave is granted.

22. The submissions of the parties are contained in their respective applications and responding documents, which are available online together with this Determination; it is therefore unnecessary to set out their arguments in any detail.

23. In short, the applicant identifies four matters arising out of the judgment of the Court of Appeal which are said to be of general public importance. He submits that it is a matter of general public importance when a court accepts a claim to be fraudulent but nonetheless exercises its discretion not to dismiss a personal injuries action pursuant to section 26 of the 2004 Act on the basis that to do so would result in injustice being done. Further nominated matters of general public importance include the fact that a finding of undue influence was made in the absence of any corroborative evidence, the fact that the proceedings were not adjourned so as to give him and the other lay litigant appellants a chance to comply with procedural rules, and the fact that someone other than the plaintiff fraudulently signed the plaintiff’s name to verifying affidavits and that such is being investigated as a criminal matter by the Gardaí. In the same context he also submits that it is a dangerous precedent to set that someone other than the plaintiff can swear the plaintiff’s name to a verifying affidavit and that is acceptable to the Court of Appeal.

24. The respondent, on the other hands, submits that the constitutional threshold for leave to appeal has not been met: the decision which is sought to be appealed does not involve a matter of general public importance, nor is it necessary in the interests of justice that leave be granted. The High Court made findings of fact based on credible evidence and these cannot be disturbed. The trial judge accepted the evidence given by the respondent. Moreover, it is submitted that even if this appeal did raise a substantial point of law (which is denied), this case could not be an appropriate vehicle to decide it in circumstances where there is no transcript of the evidence available and the evidence goes to the heart of the appeal. Thus the Court would not be in a position to fully consider and pronounce on the issue raised by the applicant, as such an issue should not be decided in a factual and evidential vacuum. The respondent submits that there is no evidence that a verifying affidavit of the 22nd December, 2014, or an amended statement of claim of the 24th June, 2015, was fraudulent, nor was there any evidence of a criminal investigation into matters allegedly touching upon the circumstances of the claim such as would have warranted an adjournment: the applicant had ample time to deal with the appeal. Finally, it is submitted that the applicant was given every opportunity to give evidence and to dispute any evidence of undue influence.

Decision

25. It has not been suggested that s. 26 of the 2004 Act is unconstitutional or that it suffers from any intrinsic legal disability. No issue arises under the European Convention of Human Rights or of EU law. As the grounds of appeal show, the finding of the trial court on the liability side is not in issue. It is only those matters mentioned at para. 23 above which are relied upon.

26. At the outset and as a general point it seems abundantly clear that the issues raised before and dealt with by the Court of Appeal, are matters typically for that court. Having thus had an appeal the applicant’s constitutional rights have been satisfied. As stated above, there is no automatic right to a further appeal. Such will possibly be required but can arise only if the constitutional threshold is satisfied.

27. The essential grounds of appeal save for one are all case specific. The findings regarding the plaintiff’s youth and intellectual ability, those to the effect that the false account of the accident was inspired by the then defendants, and that because of the emotional hold which Charles McQuaid had over him, the plaintiff participated in the scheme, were all findings depending in large measure on the assessment of the relevant witnesses. In this regard the trial judge had a unique opportunity of observing those who gave evidence, their demeanour and presentation and thus their overall reliability and integrity. This was a case where such credibility mattered greatly. All of these findings were supported by credible evidence and accordingly, the Court of Appeal did not disturb the conclusions so reached. As such, it is impossible to discern any point of law arising out of the judgment of that Court, either as to its approach, or its conclusion. None has been identified on the application before us.

28. Reference has also been made to the finding of improper influence which the applicant had over the plaintiff and the effect of such on the latter’s behaviour. It must be remembered that this was a civil action and not one which, in a criminal context, where a finding of this nature may or may not have required corroborative evidence. In any event the Court of Appeal was perfectly entitled to leave undisturbed the finding of the trial judge in this regard, noting in the process that all of the relevant witnesses gave evidence at the trial. The complaint regarding the lack of an adjournment is clearly unsustainable in view of the dates involved. Finally, any complaint lodged with An Garda Síochána is a matter entirely external to the civil case. Therefore none of these grounds remotely meet the criteria necessary for a further appeal to this court.

29. The only point which has some generality attaching to it is the suggestion that where there has been a false or misleading statement, it is a matter of general public importance for this Court to review a refusal of the trial court, upheld by the Court of Appeal, to dismiss the action under s. 26 of the 2004 Act. The statutory provision in question has been examined on a number of occasions by the superior courts, which through their judgments have analysed the section and commented on its correct application. There is no challenge to these cases; nor is it claimed that some new approach or novel interpretation is appropriate. Section 26 is a far reaching and relatively novel provision which is moreover regularly invoked. It is possible that the application of the section could give rise to important issues which in an appropriate case might require an appeal to this Court

30. However this case does not raise any question about the scope of the section, but rather a qualification of it. As both the measure and case law demonstrates, even with a finding of a false or misleading statement , the action should not be dismissed if such a step would create an injustice. Having considered the totality of the evidence, the trial judge was of such view. The Court of Appeal in accordance with precedent established over many years was satisfied that such a finding was within his jurisdiction. Whilst clearly acknowledging that the making of any false and misleading statement, as it was in this case on affidavit, is a very serious matter, nonetheless that factor together with all other matters must be considered before a decision is made under the section. There is nothing in either the assessment of the evidence or the approach of the trial court or the appellate court, which raises any concerns of a legal nature in that regard.

31. Finally, in coming to the conclusion that on the issue of liability the asserted matters cannot be described as being issues of general public importance or that it is in the interests of justice to have them further determined, it should be pointed out that the judgment of the Court of Appeal was in essence based on the application of Hay v. O’Grady [1992] 1 I.R. 210. That was central to its approach. Therefore it was not necessary for that court to independently assess s. 26 of the 2004 Act or the case law which exists in respect thereof.

32. On the issue of damages, nothing has been asserted which would in any way reach the required threshold.

33. As appears from the above, none of the points raised by the applicant come close to meeting the threshold for a further appeal to this Court. The Court will therefore refuse leave to appeal under Article 34.5.3° of the Constitution.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.