Personal
Injuries
Beginning and End
Speaker
Eoghan Casey BL
 Barrister-at-Law
 Mainly institutional clients and insured
defendants
[email protected]
087 742 7754
DX: 816 581
The Beginning
Section 12
The best defences start before the summons
has even issued.
Once an incident occurs that has even the
slimmest chance of resulting in a claim,
certain steps should always be taken.
These include ascertaining the definite or
potential evidence available to assist the
Defendant and preserving it.
The Beginning
Section 12
Preserving evidence includes recording
eyewitness testimony promptly, storing any
equipment/machinery/substance involved or
arranging for its inspection before being put
back into circulation.
For this stage, the legislation that set up the
Injuries Board contains an interesting and
under-utilised provision, Section 12.
The Beginning
Section 12
Section 12 of the Personal Injuries Assessment
Board Act 2003 prohibits the bringing of
personal injuries actions without an
authorisation from the Injuries Board.
However, subsections (2) and (3) allow the
Court to make interlocutory-type orders
before an authorisation has been granted
and, therefore, before proceedings exist.
The Beginning
Section 12
The kinds of order specifically mentioned are
ones preventing the transfer or dissipation of
assets and ones requiring evidence to be
preserved, but this is not exhaustive.
These are motions without parent
proceedings. In the High Court, they are
given an MCA record number
(“miscellaneous common law application”).
(Only 429 last year)
The Beginning
Section 12
Section 12 applications have been seen as
plaintiff-side motions.
The usual procedure is for the plaintiff’s
solicitor to write seeking an admission of
liability or an undertaking from the potential
defendant (e.g. to preserve assets or
evidence).
The Beginning
Section 12
If the undertaking is refused or the letter is
ignored, the plaintiff can proceed by notice
of motion or ex parte to seek to obtain a
court order in like terms.
If an order is granted, the plaintiff is generally
entitled to an order for his costs of the motion.
Remember, there are no proceedings in
being to reserve the costs to.
The Beginning
Section 12
If an authorisation is obtained and plenary
proceedings are subsequently brought in
relation to the same incident, the MCA orders
may be rolled up in that action.
The Beginning
Section 12
Defendants have a bad habit of ignoring
section 12 letters seeking an undertaking and
get landed with an early costs order as a
result. Take them seriously.
Section 12 applications have been underutilised but either the number of them will
increase or the number of plaintiff solicitors
getting sued later will increase.
The Beginning
Section 12
Although typically viewed as a plaintiff
weapon, section 12 applications are equally
available to potential defendants to a
personal injuries action.
s.12(2): “…the right of a claimant or a
respondent to invoke… the jurisdiction of any
court to make an order referred to in
subsection 3…”
The Beginning
Section 12
s.12(3): “…any order of an interlocutory kind
or power to make which is provided for by
rules of court or otherwise inherent in the
court’s general jurisdiction in civil
proceedings…”
The court must be satisfied that the
application is bona fide to proceedings that
could be brought and the order sought is
necessary to justly dispose thereof.
The Beginning
Section 12
Section 12 applications and orders do not
affect the running of the Statute of
Limitations.
Defendants should consider utilising section 12
themselves, e.g. preserve the other vehicle in
an RTA, preserve any camera-phone
footage, etc…
The End 1
Appeal Dynamics
Take an appeal that is realistically on
quantum only (amounts in ,000s).
€80 was awarded, with €40 for Plaintiff’s costs.
The award might be reduced to €40 on
appeal. Costs of the appeal are €20 each.
The Defendant/Appellant’s upside is €40,
since it can recover costs of the appeal by
setting them off against costs of the trial.
The End 1
Appeal Dynamics
The Appellant’s downside is -€40, made up of
no reduction on the award and incurring €20
x 2 in further Plaintiff’s costs and own costs.
If the appeal is 50/50 then the EV of bringing it
is 0, i.e. (1/2)*(40) + (1/2)*(-40) = 20 – 20 = 0
However, in general an action (be it at first
instance or appeal) has some value (i.e.
settlement value, even “nuisance value”).
The End 1
Appeal Dynamics
A strategy of appealing excessive awards or
contestable findings of liability and promptly
sending a Calderbank is promising based on
recent Court of Appeal decisions (e.g.
Shannon v O’Sullivan and Payne v Nugent)
A Plaintiff who hoped for 50 and got 80 might
settle appeal at 60 to avoid the risk of losing
more on appeal and delay in receiving the
money, on top of the Calderbank costs risk.
The End 1
Appeal Dynamics
As before, we can also analyse from the
Plaintiff’s perspective, whose EV is:
(1/2)*(–40 – 20 – 20)+(1/2)*(0 – 0 – 0) = –40
Assuming Plaintiff’s legal team insist on full
costs of the appeal from him/her.*
* It has to come out of somone’s pocket.
The End 1
Appeal Dynamics
Comparing the parties’ EVs: (–40, 0) ~ –20
i.e. the Plaintiff should give up €20,000 in order
to avoid a drastic raid on his “something to
lose” (his pot of money from the trial) on
appeal.
Solution: Lodge appeal and “Calderbank”
€60,000 + costs-to-date immediately after the
trial.
The End 2
Enforcing Costs Orders
The Civil Debt (Procedures) Act 2015 allows
creditors to apply to the District Court for
attachment of earnings or deductions from
social welfare payments in order to satisfy
judgment debts (including costs orders).
The amount is capped, the Act has not yet
been commenced, and there is a means test
safeguard (leave the debtor a sum “sufficient
to maintain oneself and dependents”).
The End 2
Enforcing Costs Orders
However, DC applications are cheap and it
suddenly creates a downside for Plaintiffs.
With something to lose, psychology changes.
Claims go from “lottery tickets” to costly
investments (higher utility at lower levels).
Settlement represents a sure return and
becomes more attractive (imagine if Deal or
No Deal charged €4,000 for playing).
The End 2
Enforcing Costs Orders
Publicity considerations apply but pursuing
unmeritorious Plaintiffs, especially those whose
claims were tinged with fraud, exaggeration
and/or opportunism may be worthwhile.
The presence or absence of dependents may
be a factor.
This policy of pursuit should be set out in stark
terms to Plaintiff solicitors in advance.
Further Reading
 Game Theory: A Non-Technical Introduction –
Davis
 The Joy of Game Theory – Talwalkar
 Nudge – Thaler & Sunstein
 Thinking, Fast and Slow – Kahneman
 How We Know What Isn’t So – Gilovich
 The Winner’s Curse – Thaler