In the recent case of Byrne -v- Arnold (2024) IEHC308, Mr Justice Kennedy reducedrecoverable party and party costs by 5% for failure to comply with the statutory obligations pursuant to Section 14 of the Mediation Act, 2017.

The requirement is for the moving party’s solicitor, in the normal course, on behalf of the Plaintiff to advise that Mediation ought to be considered as an alternative basis to litigation.

The benefits of Mediation have been highlighted and should be considered in the context of this decision. Mediation can be less costly, confidential, flexible with a neutral party actively assisting the parties towards a negotiated settlement. Mediation often operates in parallel to litigation and is never a bar to proceeding with litigation if unsuccessful. Mediation often serves to reduce the issues in dispute.

Mr Justice Liam Kennedy highlighted his considered views regarding the perception of a litigant “showing weakness by proposing Mediation”. He further noted that Section 14 allowed a type of “get out” for that perception in that it is a statutory and professional requirement of litigation.

In practice, there can often be the misconception that Mediation takes place at the commencement of the case, however, his decision highlighted that parties could agree Mediation and continue to exchange pleadings and obtain expert reports in order to prepare for same.

The Judgment further noted that it was not an excuse that urgency might dispense with the requirement to recommend Mediation. Broadly speaking his view was that it should be considered in any consultation before an action no matter how unlikely it would lead to a positive outcome.

In considering the costs penalty, he reduced the party and party solicitor’s fees by 5%. He did consider a higher penalty for the failure to comply with the statutory obligations in Section 14 of the Mediation Act 2017 and stated that a higher amount could be imposed in the future for non-compliance.

The Judgment serves as a timely reminder of the obligations to investigate or consider Mediation and the costs penalties for not considering same. It is noted that a more significant costs penalty could be imposed in future cases and in particular reaffirms the requirement of a Statutory Declaration to be filed in order to avoid a Court adjourning proceedings.

Mary Byrne
Partner
OBL Solicitors.

On the 12 th July 2024, OBL Partner, Mary Byrne, led another successful defence of the within proceedings in Kilkenny Circuit Civil Court before his Honour Judge Dunphy on behalf of St. Kieran’s College Kilkenny last month.

This case involved allegations regarding a frozen equestrian arena surface causing a 13 year old boy to fall off his horse and sustain injuries during an interschools equestrian competition. A full defence was delivered with appropriate defence expert equestrian and engineering evidence procured by OBL Solicitors.

In an unequivocal dismissal of the Plaintiff’s case, the Trial Judge determined that the incident, the subject matter of the within proceedings, was a the horse riding accident. He held that the surface of the show jumping arena was professionally installed and not causative of the Plaintiff’s horse slipping. He held that the event was properly organised and managed and that the prevailing conditions were safe for the event to proceed and found no evidence of negligence on the part of the Defendants and therefore no liability could attach to any of them.

These proceedings issued prior to the enaction of the amendments of the Occupiers Liability Act on the 31 st July 2023 which will grant further and wider defences in such recreational and equestrian type claims.

On Wednesday 15 th May 2024, OBL Partner Mary Byrne, on behalf of the Michael McLoughlin trading as Dundalk Cabs successfully obtained an Order to Dismiss a Plaintiff’s action before Judge Patrick Quinn of Dundalk Circuit Court on the grounds that the Plaintiff’s delays in bringing the claim resulted in a prejudice against the Defendant, who could not adequately defend the claim. The Court was not satisfied that the Plaintiff discharged his onus of proof in establishing negligence as against the Defendant. The Plaintiff’s claim was for the recovery of damages allegedly sustained in a trip and fall type accident in December 2017.

The Plaintiff claimed to have slipped and fell on the Defendant’s premises sustaining facial injuries. He further claimed that he suffered the injuries due to the Defendant’s negligence in failing to have mats covering the tiled floor causing him to slip on wet tiles and require nine stitches above his eyebrow causing him to suffer anxiety due to the permanent scarring.

The Defence claimed that the mats were always present on the floor, the floor was cleaned regularly by staff members and that the incident was never reported to any employee on the night.

The Defendant’s position was that they received no notification of the claim for almost two years after the incident. Frank Martin BL argued on behalf of the Defendant that this amounted to prejudice against the Defendant as the Defendant could not adequately defend the action and that it was a grossly unfair way to litigate.

Judge Patrick Quinn accepted that the Plaintiff did indeed suffer an injury on the night in question. However, he went on to state that it was unfair to fix responsibility on the Defendant in the circumstances where the Plaintiff brought a claim almost 2 years after the accident occurred. Judge Quinn accepted the Defendant’s engineering evidence which established the presence of mats. He also commented that the Plaintiff could have brought witnesses to Court to support his version of events
but did not.