Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court does not grant leave to Laurence Flynn to appeal to this Court from the order of the Court of Appeal delivered on the 26th February, 2015.

REASONS GIVEN:

1. This determination relates to an application by Laurence Flynn, the applicant, referred to as “the applicant”, in which he seeks leave to appeal to this Court from the decision of the Court of Appeal wherein judgment was delivered on the 26th February, 2015.

2. Finbarr Desmond, the respondent, is referred to as “the respondent”.

3. This Court has jurisdiction to hear an appeal from the Court of Appeal in the circumstances described in Article 34.5.3° of the Constitution, which states:-

“3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that –

i the decision involves a matter of general public importance, or

ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

5. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court.

6. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58.

7. The Constitution has retained the entitlement of one appeal as of right from the High Court, subject to express exclusions or regulation by statute, from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.

8. In this application the applicant seeks to appeal from the entire decision of the Court of Appeal.

9. The applicant is a lay litigant which the Court has borne in mind in considering the application.

10. The applicant set out a lengthy statement of facts, which included the following:-

(i) On the 21st November, 2012, the High Court (Birmingham J.) made an order that these proceedings had been compromised by an agreement made between the applicant and the respondent on the 12th November, 2009, wherein it was agreed that a sum of €5,000 (subsequently increased by agreement to €5,500) was to be paid to the applicant in settlement of his personal injury claim. No order was made as to costs. The applicant appealed the High Court order on a number of grounds.

(ii) The applicant commenced proceedings in the High Court by plenary summons dated the 17th December, 2007. He claimed damages for personal injury and loss arising from an incident which occurred in September or October 2004 when he sustained an injury to his right index finger while employed by the respondent as a fisherman on a fishing vessel, “Bonne Chance”, off the coast of Kinsale, Co. Cork.

(iii) On the 12th October, 2009, the respondent filed a notice of motion seeking an order that the applicant’s claim was statute barred.

(iv) A settlement meeting took place on the 12th November, 2009. The applicant was not represented. The respondent was represented by his solicitor, on the instruction of an insurance company. The applicant declined an opportunity to get legal advice. A settlement was agreed at €5,000, and submitted to writing.

(v) On the 15th November, 2009, the applicant wrote to the respondent’s solicitor informing him that he was unhappy with the settlement because the agreed compensation figure represented a minor injury whereas his injury was serious and likely to get worse.

(vi) The respondent committed to pay an additional €500, making the total €5,500, and the applicant confirmed in writing the settlement of the action in a communication with the respondent’s solicitor on the 23rd December, 2009. A notice of discontinuance signed by the applicant was filed in the Central Office of the High Court on the 23rd December, 2009.

(vii) On the 24th December, 2009, the applicant wrote to the respondent’s solicitor advising him that he had changed his mind and, effectively, rejected the settlement. He complained that he had not been given sufficient time to obtain legal advice, he claimed he was pressurised into a settlement under threat of future legal proceedings against him, and he returned the cheque for €5,500.

(viii) On the 5th March, 2012, the applicant served a notice of intention to proceed on the respondent’s solicitors.

(ix) By notice of motion dated the 31st May, 2012, the respondent applied to the High Court for, inter alia, “an order declaring that the within action has been compromised by agreement made between the [applicant] and the [respondent] and the payment of an agreed sum by the [respondent] to the [applicant] which was received and accepted by the [applicant] in satisfaction and discharge of the [applicant’s] claim”.

(x) The High Court gave judgment on the 21st November, 2012. The issue was whether personal injuries proceedings initiated by the applicant, acting in person, had been settled. In a report of the judgment of the High Court the learned High Court judge addressed the information before the Court. He concluded:

“[The applicant] may regret the decision that he made but regrets or second thoughts do not provide a basis for setting aside a settlement. Accordingly the [respondent] and moving party succeeds in his application.”

“20. It is evident that the [applicant] has a significant disability in his right arm and hand, and that his ability to work has been adversely affected. It is also the case that his claim for compensation, which is the subject matter of these proceedings, carried with it a risk that the claim was statute barred, or, if successful, would, if the matter was to have proceeded to a full hearing, attract relatively small damages because of the difficulty in establishing that the medical difficulties that now afflict the [applicant] in relation to the use of his right arm and hand were caused, either directly or indirectly, by his accident in September or October 2004.

21. These potential difficulties with the claim were identified by the learned High Court judge in his judgment of 21st November 2012. There were also known to the [applicant] at the time he signed the agreement to settle the litigation on 12th November 2009, and again when he reaffirmed his agreement to settle towards the end of December 2009. It cannot be said that the [applicant’s] agreement to settle his claim for a figure of (in total) €5,500 was unwise. I am also satisfied that the absence of legal advice to the [applicant] at the time of his agreement to compromise these proceedings does not, in the circumstances of this case, undermine that agreement. Therefore, these proceedings have been compromised and have concluded.

22. The [applicant’s] appeal is therefore dismissed, and the Order of the High Court affirmed.”

“(i) the cause of my, the [applicant’s] unhappiness with the agreement is because new information became available to me that made sense of a radiograph finding of “increased radio density at the medial border of the proximal interphalangeal joint” and that this radiograph finding represented proof, that the puncture wound injury, by a strand of wire, caused an infection to the PIPJ of my right index finger and this materially changed the position of both parties with regard to the agreement.

(ii) the opportunity to consider an offer is derived from the offer being open for acceptance for a set period of time. The Civil Procedure Rules introduced in England and wales in April of 1999 requires all formal offers to be made in writing and open for acceptance for 21 days.

(iii) for an improved offer to confirm a previously made offer, which was reduced to a written settlement agreement, then that improved offer must be in writing.

(iv) those who seek Orders of compromise bear the burden of demonstrating the absence of genuine issues of material fact.

(v) the Central Office of the High Court, in an action brought by a lay litigant, only allows the lay litigant to file and lodge a Notice of Discontinuance, and as such this must reflect the court’s wishes that where the lay litigant does reach a settlement agreement that it is with his true assent.

(vi) when a term of a settlement agreement states that it is the lay litigant who must file and lodge a Notice of Discontinuance but because of the lay litigant’s refusal or hesitancy in doing so, the defendant attains, with an improved offer, the lay litigants signature to a Notice of Discontinuance and files or attempts to file that Notice of Discontinuance, then rather than this being an indication of the lay litigant’s assent, it reflects the manifest assent of someone who does not want to give assent, when the lay litigant returns the consideration and does not enter a Notice of Discontinuance.

(vii) Where there are findings from a medical exam, upon which a claimants attaches importance, that need to be medically examined and interpreted in relation to the body’s physiological processes that, even at the request of the patient, the medical provider has an obligation to respond positively when such a request is reasonable.”

13. The respondent’s reasons for opposing leave to appeal are: “It is not, in the interests of justice, necessary that there be an appeal to the Supreme Court.”

14. The respondent also set out detailed reasons for opposing the appeal if leave to appeal was granted. Within that section the respondent responded to the seven grounds advanced by the applicant as to why the Supreme Court should grant leave to appeal as follows:-

“Ground 1: the [applicant] argues that the ruling of the Court of Appeal not take into account that new information came to hand after the settlement. This argument was advanced before board (sic) the High Court and the Court of Appeal and both courts were satisfied that the argument did not hold sufficient merit in order to set aside the settlement. In addition, this new evidence, is not in the shape of a consultants report or a medical report, but is rather radiography report with no conclusions or diagnosis. Indeed, the medical evidence which was examined in the High Court led the Court to conclude that the [applicant] ‘faced an uphill battle’.

Ground 2: again this ground was litigated before the Court of Appeal and they did not entertain this argument on the basis that the [applicant], not only was asked to take up independent legal advice (independent to the office of the respondent) and he chose not to do so, but the [applicant] having accepted the offer, came back and received an amended and improved offer which he subsequently accepted. At no point or time was the [applicant] told he could not take time to consider the offer and indeed he ended up considering two separate offers and accepting both.

The rules on Civil Procedure in England and Wales do not apply.

Ground 3: this was not litigated before the Court of Appeal and therefore cannot form part of this appeal.

Ground 4: the issue of the material facts of this case were vented before the High Court and the Court of Appeal. Medical reports and correspondence from medical consultants were furnished to the High Court and the Court of Appeal covers the issue of the [applicant’s] difficulties in that regard. It is not known what test the [applicant] is now referring to but it will be submitted on behalf of the respondent that this was litigated in both Courts and decided upon in both Courts.

Ground 5: it would appear that the suggestion is that a settlement can only be binding if the notice of discontinuance is filed by a lay litigant in the central office and not before. Clearly, this was not litigated before either the High Court or the Court of Appeal, in the specifics as now outlined, but it was certainly referenced in terms of how the proceedings were not finalised at the time of settlement.

Ground 6: this was not litigated before either the High Court or the Court of Appeal. The [applicant] initially signed a settlement agreement and then assented to the terms of that agreement to be amended to increase the offer of settlement. The [applicant] is now attempting to assert that the lack of complete compliance with practice and procedure should in some way circumvent the settled law that a litigant in person is more than capable of possessing the capacity to settle his or her litigation.

Ground 7: respectfully, it is not a question of whether or not the claimant attaches importance, but for the purposes of litigation, the question is does a medical practitioner attach any importance to the findings from the medical exam. The evidence as presented to the High Court included correspondence from the [applicant’s] Consultant to his General Practitioner, that the consultant had assured the [applicant] that his complaints were in no way consistent the medical evidence. The [applicant] has not objectively been able to advance a personal injury claim with the assistance of any independent medical report other than his own personal views on the import of radiography report.”

16. The applicant has had an appeal from the decision of the High Court to the Court of Appeal.

17. This is not an appellate court to correct error. The constitutional basis upon which to grant leave to appeal to the Supreme Court is not grounded on any issue of error of law by the lower Court, even if it existed.

18. In this application the applicant has not raised a point of substance for the jurisdiction of this Court. No matter of general public importance has been raised. Further, the Court is satisfied that it would not be necessary in the interests of justice that there be an appeal to this Court. The Court is satisfied that the constitutional threshold for leave to appeal to this Court has not been met.

19. The applicant is not entitled to a further appeal. The Court does not grant leave to the applicant to appeal to this Court from the judgment of the Court of Appeal delivered on the 26th February, 2015.

And it is hereby so ordered accordingly.