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CALDERBANK OFFERS/LODGEMENTS/TENDERS IN THE CURRENT ENVIRONMENT

April 23, 2021 in News

CALDERBANK OFFERS/LODGEMENTS/TENDERS IN THE CURRENT ENVIRONMENT

23 April 2021

Each of the above represent offers in different guises normally by a Defendant to settle a Plaintiff’s claim. They offer costs protection to a Defendant and the different formats and circumstances are set out in detail below:-

THE ROLE OF OFFERS IN THE CURRENT ENVIRONMENT

There has been limited access to the Irish Courts in respect of civil disputes since the onset of the Covid pandemic in March 2020. As Courts of each jurisdiction have continued in limited spheres, urgent matters have been granted priority. Most civil disputes do not fall into that category.

Lawyers have engaged in various schemes and mechanisms to achieve settlements, often away from the usual locations such as courthouses. Mediations have been undertaken both in person and remotely. Without the “day of reckoning” sense that a court hearing tends to bring to a case practitioners have required to deploy further devices in an endeavour to force cases to a conclusion where settlement has not been achieved.

Lodgements/Tenders and Calderbank offers appear to be the most useful devices in the current environment.

Whilst each device operates differently, all have the effect of putting pressure on a Plaintiff in respect of legal costs. Plaintiffs can be brave when engaging in settlement discussions though an offer by way of the above with a warning letter from a Plaintiff’s lawyer often results in a forced settlement.

In personal injury actions and with the current spirit of reform (The Personal Injuries Guidelines 2021), there is undoubtedly a downward pressure on damages which is having a chilling effect even where cases are before the Courts and not caught within the parameters of those reforms. With more uncertainty formal offers tend to have a greater effect.

There is furthermore quite a significant time delay with matters being brought on before the Court which assists in the effectiveness of such offers.

This position will remain for some time into the future and often a sum offered may have an enhanced attractiveness currently as opposed funds received at a much later undefined date.

With huge swathes of the economy effectively shut down for the past thirteen months, Plaintiffs may be more vulnerable to such offers from a financial perspective.

Plaintiffs who are not familiar with the Court system may be “spooked” by such offers, particularly when accompanied by warning correspondence from their lawyers outlining the various permeations arising therefrom.

Lodgements, Tenders and Calderbank letters represent different forms of offer and it is worth reviewing each and the various distinctions.

LODGEMENT

The most traditional and oldest device to afford a defendant costs protection is the lodgement. This is set out in the Rules of the Superior Courts and the lower Courts where a defendant would in fact lodge money with the relevant Accountant’s Office of the Court.  The lodgement requires to be made at a specific time in legal proceedings and in the absence of that leave of the Court may be required. A disadvantage of a lodgement are the procedural encumbrances of obtaining funds and lodging same in the relevant office and often missing tight time frames. One advantage of the traditional lodgement was that it did in fact convey to the Plaintiff the “colour of the Defendant’s money”.

The effect of a Plaintiff failing to achieve an award higher than a lodgement is that they would normally only recover costs up to the date of the lodgement. The Defendant thereafter is entitled to recover all subsequent costs.

TENDER

In personal injuries actions, the Rules of the Superior Court were amended by S.I. 328/2000 (Offer of payment in lieu of lodgement). This allowed certain qualified parties to make a tender offer as opposed to the more traditional previous lodgement.

The Tender has the same effect as a lodgement without requiring to go through the process of obtaining funds and physically lodging same into Court. In order to make a lodgement a Defendant must be acting on behalf of a qualified party. A qualified party could be easily identified as a party who is “good” for the funds such as a government body or an insurance indemnifier authorised in the State.  The main advantage of a Tender is that it can be effected immediately without physical funds which may often require to transfer from overseas locations.

Tenders are particularly effective in ensuring that risk is brought to bear on Plaintiffs who may be unwilling to engage meaningfully.

CALDERBANK OFFERS

A Calderbank offer is a letter written normally but not exclusively by a defendant making an offer to resolve litigation.

It should be marked “without prejudice save as to costs” in order to reflect certainty. Any Calderbank offer ought to be clear and such offers have been challenged where there may be uncertainty particularly in respect of the issue of costs. For that reason it ought to be marked “without prejudice save as to costs”.

The name derives from a UK case of Calderbank v Calderbank (1975) and until relatively recently there was some uncertainty with regard to their validity in various different proceedings. This uncertainty was borne out of circumstances where tenders or lodgements could be used but the Legal Services Regulation Act 2015 provides with them greater legitimacy on a statutory footing.

In the recent Supreme Court case of Reamy & Others -v- Interlink Ireland Limited (2018) clarification was provided on the rules of the formulation of lodgements. It is noted that Mr Justice O’Donnell noted that issues concerning tenders and lodgements required consideration by the Superior Court Rules Committees. This is awaited.

Calderbank offers have the advantage that they can be made at any time, both prior to and during legal proceedings.  A Calderbank letter not accepted will be opened in support of an application to fix the Plaintiff with costs and in order to ensure the effectiveness of that application, it ought to be clear and fair as set out above.  There ought to be no ambiguity and the Plaintiff should be afforded a reasonable time to consider the offer. Such an offer may fail if deemed unclear or unfair, Murnaghan -v- Markland Holdings Ltd (2004).

The Court of Appeal in the case of Shannon v O’Sullivan (2016) awarded the costs of the Court of Appeal to the Defendant setting those off against the successful costs which the Plaintiff had won in the High Court. This has given Calderbank correspondence greater validity particularly in appeal situations and the Court of Appeal noted that it would not be just or fair to the Defendants who made such offers, which had they been accepted, would have concluded matters.

This allowed a recovery of costs against a Plaintiff which is often unrealistic in personal injuries actions.

CONCLUSION

All offers of amends by Defendants using the above various tools are most effective in closing down litigation and giving costs protection to Defendants in particular.

Each mechanism must be carefully considered in different forms of civil litigation, depending on the circumstances.

This briefing is a mere guidance document only and is not a substitute for appropriate professional advice in specific matters.

For further advice please contact:-

Mary Byrne, Partner (mbyrne@obl.ie)

Ruth Hereward, Associate Solicitor (rhereward@obl.ie)

INSURANCE REFORM IN IRELAND

January 14, 2021 in News

The Irish Government on the 8th December 2020 published its Action Plan for Insurance Reform, this being the first Action Plan on Insurance Reform.

This was published against the background of an insurance crisis of recent years which has been highlighted in circumstances where Insurers are no longer prepared to insure certain sectors. Lobbying groups such as Brokers Ireland and the Alliance for Insurance Reform have broadly welcomed the Action Plan with a focus on areas that they wish to see prioritised.

The Plan sets out 66 actions to reduce costs for both consumers and businesses and the Plan largely pledges the following:

-Replacing the Book of Quantum with new guidelines and enhancing the role of the Personal Injuries Assessment Board (PIAB).

-Examining the duty of care particularly with respect to Occupier Liability matters which would greatly benefit in particular sporting/voluntary bodies and community groups.

-Enhancing the National Claims Information Database.

-Judicial Guidelines for capping personal injury awards.

-Reducing insurance fraud by including placing perjury on a statutory footing making the offence easier to prosecute.

Further initiatives that have already been commenced include the Consumer Insurance Contracts Act 2019 and the establishment of a Department within Government to ensure greater insurance market competition on a cross-departmental basis.

Any one of the proposed reforms requires fuller consideration however it does appear that Insurance Reform is a priority despite other ongoing crises such as Covid-19 and Brexit.

CONCLUSION

Many of these reforms are far-reaching and will require the input of various sectors to ensure their viability or success. In presenting the reforms An Tánaiste indicated that there would be updates on a quarterly basis which will be monitored with interest.  In order to tackle fraud and abuses, some existing offences are being made easier to prosecute.  The timing and delivery of such reforms will be the measure of its success and as noted by the Alliance for Insurance Reform a previous recommendation by the costs of Insurance Working Group regarding a Garda (Police) division to prosecute insurance fraud has yet to be established.

For fuller advice regarding Insurance Reform in Ireland please contact Mary Byrne mbyrne@obl.ie of OBL Solicitors.

CCTV DISCLOSURE

December 1, 2020 in News

DUDGEON -V- SUPERMACS IRELAND LIMITED

A pre-trial hearing in the above case recently dealt with CCTV disclosure

Judgement of Mr Justice Barr of the 16th November 2020.

BACKGROUND

The Plaintiff alleges she was caused personal injury when attending the Defendant’s restaurant on the 6th January 2017. The Plaintiff contended that the seat upon she was sitting broke causing her personal injuries when she fell to the ground.

After consulting her solicitor a Section 11 preservation of evidence request issued. In the context of a Circuit Court discovery application, Circuit Court Judge Groarke refused to direct the Defendant to make discovery of the relevant CCTV footage.  The Plaintiff appealed to the High Court.

The Plaintiff’s case was that the CCTV footage represented the best evidence one can obtain regarding the occurrence of the event. A number of authorities such as Colston -v- Dunnes Stores (2019) were cited in regard to discovery of CCTV footage. The fact the chair was unavailable for inspection was cited as a further reason for the CCTV footage to be discovered.

The Defendants further submitted that the absence of the chair was irrelevant and submitted that the dispute as to whether the Plaintiff had fallen to the ground was a central issue for determination at the Trial.

The Defendant further submitted that the discovery of the CCTV footage would allow the Plaintiff “mend her hand” in advance of the hearing. The defence cited the Supreme Court authority of Keating -v- RTE (2013) that discovery “cannot be used to enable a person to plead the cause of action or a defence which he is not otherwise in a position to plead…”.

FINDING

Judge Barr noted that liability no longer was in dispute between the parties but the issue of causation and quantum remained contentious. He concluded that the only purpose in seeking discovery of the CCTV footage was to ascertain in advance of her evidence in chief and cross examination whether her assertion that she fell to the ground was in fact correct.

The discovery material goes exclusively to the issue of the Plaintiff’s credibility and based on the Stafford -v- Revenue Commissioners Authority, Judge Barr was satisfied that it was not appropriate to make discovery of same.

The Plaintiff would be in a position to proceed to give her evidence and call witnesses if required to confirm her version of events.

CONCLUSION

The Alliance for Insurance Reform welcomed the decision. The Alliance for Insurance Reform noted that data protection legislation regarding CCTV often unfavourably conflicted with legal defence entitlements in Public and Employer Liability cases. It was further stated there were some instances where there are GDPR requests for CCTV footage prior to personal injury claims being made.

CCTV footage is subject to GDPR Regulations and normally subject to a Section 11 preservation or disclosure of evidence request. Consideration requires to be given in every case whether or not to disclose same and at what time.

There is little dispute that CCTV is the best evidence of an incident, however a Plaintiff should not be given an automatic entitlement to sight of CCTV.  A Plaintiff is required to plead and verify their case in the absence of same save in limited circumstances where they may be rendered unconscious or worse. CCTV footage may be opened in a criminal case involving assault type cases and Defendants should ensure pleadings are delivered and verified in advance if possible in those circumstances.

Date Published 1st December 2020

Key Contacts

Mary Byrne Partner (mbyrne@obl.ie)

Ruth Hereward Associate (rhereward@obl.ie)

This document is for general guidance only and specific legal advice should be obtained as required.

Personal Injuries Award Update: Court of Appeal

August 12, 2020 in Education, News

A three Judge Court of Appeal has delivered Judgment in the case of McKeown -v- Crosby which analyses the application and efficacy of the Book of Quantum in Personal Injuries cases. Whelan J. and Power J. are both in agreement with Noonan J. who gave Judgment electronically.

This Appeal arises out of a €76,000 damages award from a Personal Injuries Action brought before the High Court in December of 2019.

The award for damages was broken down as €65,000 for pain and suffering to that date, €5,000 for pain and suffering into the future, and €6,000 for agreed Special Damages.

The appeal centred on whether the Book of Quantum is fully applied in Personal Injuries cases and how better consistency can be achieved.

The Appellants grounds for appeal were on the basis that the High Court Judge had erred in awarding such an amount and for not according sufficient weight to particular factual matters by the Trial Judge.

Interestingly, there was a cross appeal by the Plaintiff of the High Court Action who appealed the amount of future General Damages (€5,000) awarded amounted to “an error of law and fact by the Trial Judge.”

Giving Judgment electronically on the 11th August 2020, Noonan J. highlighted the disparity across awards to Plaintiffs and also acknowledging that in the world of Personal Injuries Litigation, some members of the Judiciary were looked upon more favourably than others, depending what side a practitioner was representing, of course. He stated that it cannot be fair on either party for the value of an award to be dependant on the Trial Judge.

In what could be viewed as a move from the traditional manner of making awards, Noonan J. suggests that legal practitioners could be afforded the opportunity to address the Court on the application of the Book of Quantum, much as is the case at present when addressing the Court regarding the issue of the costs of an Action. This is with a view to achieving greater consistency especially in lower value cases which, by definition, should be easier to assess.

Concluding the Judgment, Noonan J. found that the award of the High Court “by any reasonable measure it cannot be viewed as proportionate.” The Court applied Payne -v- Nugent as the most directly comparable case and again found the award to be disproportionate. As such, the Court awarded €25,000 for pain and suffering to that date, €5,000 for pain and suffering into the future and €6,000 for agreed Special Damages.

The reduction was based on the Book of Quantum alone as the Appellate Judge had only a short transcript and an ex-tempore Judgment from the originating matter to refer to.

The Judgment raises a number of questions regarding the awards in Personal Injuries Actions today.

Firstly, the reduction of €40,000 in General Damages awarded clearly places the Plaintiff within the Circuit Court jurisdiction, and not that of the High Court. Therefore, had a Justice of the High Court who was minded to take the same view as Noonan J. heard the matter originally, the Plaintiff would have been very much at risk of a Costs Differential Order under Section 17(5) of the Courts Act, 1981 (as amended) which provides that after the Hearing of and Action a Judge may “grant a special certificate in writing that, in the opinion of such Judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or of any question of law contained therein, that the proceedings should have been commenced in the court in which they were commenced.”

This could have led to the Plaintiff being liable for the difference in the Plaintiff’s costs incurred in the Court where the Action was taken and the Court in which the Action should have been taken.

Secondly, though the assessment of damages is not an exact science, in Sinnott -v- Quinnsworth, O’Higgins C.J. held that when determining a figure which is fair and reasonable, “some regard should be had to the ordinary living standards in the country, to the general level of incomes and to the things upon which the plaintiff might reasonably be expected to spend money.”

To that end, and with the words of O’Higgins C.J. in mind, it is prudent to revert to the Judgment of Noonan J. who holds that “damages are, in theory at least, restitutional.”

Date Published: 12th August 2020

Key contacts:

Mary Byrne Partner (mbyrne@obl.ie)

Ruth Hereward Associate Solicitor (rhereward@obl.ie)

This document is for general guidance only and specific legal advice should be obtained as required.