EXAGGERATED AND FALSE EVIDENCE:
AN UPDATE
Bar Council – CPD Conference
Saturday 12th April 2014
Desmond Dockery B.L.
In a recent paper on this very subject entitled “Lies and the Lying Liars that
tell them”, Fennelly J observed that historically, in his experience over many
years at the Bar and on the Bench, much more common than entirely false or
fictitious claims was the exaggeration of injuries and loss of earnings, in short the
quantum of claims.
He noted that lying was a deep human flaw and that the law’s approach to lying
had a number of aspects. Lying in a court setting may be followed by criminal or
civil sanctions. Perjury was a crime but was rarely prosecuted. The fact that a
judge disbelieved a person did not mean that the prosecution would be able to
prove guilt to the criminal standard. Indeed, the criminal law made some
allowances for lying, in that judges were required to give the Lucas warning to
juries, namely, that the fact that an accused was shown to have lied did not mean
that he was guilty of the offence charged because there could be an explanation
for the lie.
As to how the courts have sought to address deliberate lying, whether by
falsehood or by exaggeration, Fennelly J referred to the remarks made by Moses
L.J. in South Wales Fire and Rescue Service v Smith1 in delivering judgment in
the Court of Appeal in England which are worth quoting from in part with regard
to false claims. He said:
1
[2011] EWHC 1749 (Admin)
“They impose upon those liable for such claims the burden of analysis, the
burden of searching out those claims which are justified and those claims which
are not justified. They impose a burden upon honest claimants and honest
claims, when in response to those claims, understandably, those who are liable
are required to discern those which are deserving and those which are not.
Quite apart from that effect on those involved in such litigation is the effect
upon the court. Our system of adversarial justice depends upon openness, upon
transparency and above all, upon honesty. The system is seriously damaged by
lying claims…….
Those who make such false claims, if caught, should expect to go to prison.
There is no other way to underline the gravity of the conduct. There is no other
way to deter those who may be tempted to make such false claims and there is
no other way to improve the administration of justice”.
As Fennelly J highlighted, however, these remarks were made in the context of
an application for committal for contempt of court of a claimant in an accident at
work case. The claimant, on his own admission, had made a false claim that
since his accident, he had been unable to work. The court imposed a prison
sentence which was suspended on condition that he repay the sums he had
fraudulently obtained from the Defendant.
According to Fennelly J, this was not a remedy that had ever been sought or
granted in this jurisdiction so far as he was aware, although the Supreme Court
had begun to consider the issue prior to the enactment of the Civil Liability and
Courts Act, 2004, which introduced thereby what is objectively considered to be
the draconian provisions of s.26(1) and s.26(2) relating to false or misleading
evidence and false or misleading verifying affidavits in personal injury actions.
The provisions of the Act, of course, are confined to personal injury actions
alone.
THE COMMON LAW POSITION
In Vesey –v- Bus Eireann2 the Plaintiff was injured whilst stationary at traffic
lights on the Stillorgan Road when a bus drove into the rear of his car. Liability
was admitted. However, Johnson J noted that the case was far from simple. He
said:
“It should be a very simple case and the facts of it were very simple
indeed. The Plaintiff was hit from behind by a bus. Let me say that the only
fact in this case about which I am absolutely certain is that the accident
took place and I am only certain of that because the Defendants have
admitted it. Had the Defendants not admitted it, I would possibly have the
gravest difficulty in coming to that conclusion”.
Later in his Judgment, the trial Judge said:
“I am now going to say something that I have never said about any Plaintiff
in the last 13½ years on the bench. The Plaintiff has lied to me. He has
lied to his own doctors and he has lied to the Defendant’s doctors in a
manner which has rendered the opinions of the doctors almost useless
because, they admit themselves, they depend on the veracity of the
history given to them by the Plaintiff to form their opinions. The Plaintiff did
not tell the doctors the truth regarding its history”.
As to the Plaintiff’s work history, the learned trial Judge said that:
“The history of work in this case is one of the great mysteries because the
only time in which we have had any detail of the Plaintiff’s work was in the
six months prior to the accident…”.
Nonetheless, the Plaintiff was awarded IR£72,500. The Defendant appealed.
Hardiman J, giving the judgment of a unanimous court of three, endorsed the trial
2
[2001] 4 IR 192
Judge’s summary of the case and reduced general damages to IR£15,000 and
the overall award to IR£30,000. He rejected the Defendant’s contention that the
Plaintiff’s damages be reduced or extinguished as a mark of disapproval of the
Plaintiff’s dishonesty by analogy with the court’s jurisdiction to grant exemplary
damages to a Plaintiff in order to mark disapproval of a Defendant’s conduct. The
court did not have an inherent power to do this. Even if it did have it, it would not
be appropriate to exercise it without warning, but there was plainly a point where
dishonesty in the prosecution of a claim could amount to an abuse of the judicial
process as well as an attempt to impose upon the other party.
In Shelley Morris –v- Dublin Bus3 the Plaintiff had been injured as a passenger
on a bus. She claimed that damage done to her knee would prevent her from
obtaining gainful employment in the future. Video evidence procured by a private
investigator cast doubt on the accuracy of this proposition. In the High Court,
O’Higgins J made some allowances for this fact in assessing damages. He said
he found the Plaintiff had exaggerated her symptoms. He added the following:
“In particular, I have to say that what was evident to the court on the video
tape was at variance at least with the general picture of her disability that
the Plaintiff offered to the court. So the Plaintiff’s case is more difficult to
evaluate because of the fact that the court has found that she deliberately
exaggerated some of her symptoms to the court”.
He made an award of IR£129,375. On the Defendant’s appeal to the Supreme
Court, composed of the same three judges as in Vesey, Hardiman J was equally
critical of the Plaintiff and her legal advisers, the former for putting forward an
exaggerated claim relating to her ability to work following the accident, the latter
for trying to explain away the very large claim for loss of earnings after video
evidence shown in the High Court showed the Plaintiff to be a perfectly able
bodied woman. He took up the theme alluded to in Vesey that there was a point
3
[2003] 1 IR 232
of dishonesty in the prosecution of a claim which could amount to an abuse of the
judicial process and that deliberate falsehoods had the capacity to undermine the
Plaintiff’s credibility in general so that, where a claim was heavily dependent on
the Plaintiff’s own account, the undermining of her credibility went to the issue of
whether she had discharged the onus of proof. Moreover, the court had no
function in disentangling the evidence by speculation or benevolent guesswork in
order to assist the Plaintiff’s claim. Compensation for future loss of earnings, loss
of pension and gratuity were set aside and the Plaintiff’s claim for pain and
suffering into the future was halved.
McMahon & Binchy4 observe that the noteworthy feature of the case was that the
Supreme Court did not consider justice would be served by an invariable rule that
exaggerated claims should be dismissed. Moreover, the Supreme Court clearly
held that justice would better be served by a reduction in the award of damages,
rather than an outright dismissal of the claim.
THE CIVIL LIABILITY & COURTS ACT 2004
The most relevant provision of the Act is section 26 which provides 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
4
Law of Torts (4th Ed) (2013)
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.
3. For the purpose of this section, an act is done dishonestly by a
person if he or she does the act with the intention of misleading the
court.
4. This section applies to personal injuries actions –
(a) brought on or after the commencement of this section, and
(b) pending on the date of such commencement.5
McMahon & Binchy
6
note that the novel aspect of section 26 is the imposition of
an obligation on the court to dismiss the entirety of a claim, even where legal
liability is established or not contested, once the Defendant proves the relevant
falsity or misleading character of the evidence or affidavit, and that the Plaintiff
knew of such falsity, unless dismissal would result in injustice.
Section 26 applies only to evidence
The section applies to false or misleading evidence actually adduced in court. It
does not confer any power on a court to stay or strike out a claim for abuse of
process in advance of the trial. The false or misleading evidence has to be given
to trigger the obligation to dismiss.
The section does not apply to pleadings, particulars or discovery of documents,
except to the extent that that they are linked with evidence given at the trial.
5
Practitioners should also be aware of s.14 of the 2004 Act with regard to the necessity for a Plaintiff to
swear a verifying affidavit of the matters pleaded in a Personal Injuries Summons or in relation to the
provision of further information to the Defendant and that to make a knowingly false or misleading
affidavit is an offence, just as s.25 provides that to knowingly give dishonest evidence or to cause
dishonest evidence to be knowingly adduced in a personal injuries action constitutes an offence.
6
Ibid at parag 44.295
The section applies if the Plaintiff causes false or misleading evidence to be
given by another, usually where the other witness gives the evidence believing it
to be true. This will be the case with a professional or expert witness.
In the aftermath of the passing of the 2004 Act, applications to dismiss
proceedings under section 26 proved unsuccessful in “Mulkern v Flesk7, Corbett
v Quinn Hotels Ltd8 and in later years, in Behan v AIB plc9, Donovan v Farrell10
and Singleton v Doyle11.
In general, these were cases where it was considered that the Plaintiff had not
deliberately sought to mislead the court but had, for example, subjectively
believed her symptoms to be a great deal worse than they really were (Corbett v
Quinn Hotels Ltd) or ought to have given a more comprehensive answer to
certain questions (Donovan v Farrell) or ought to have known that an aspect of
replies to particulars was untrue (Behan –v- AIB plc). In Behan, the Plaintiff had
replied “None relevant to the proceedings” in answer to queries raised as to
whether she had any illness or medical complaint prior to or after the accident. In
fact, a month after the accident, she had struck her left leg against a filing cabinet
and injured it. According to Murphy J, s.26(2) did not penalise assertions that the
Plaintiff ought to have known were untrue. Rather, proof on the balance of
probability of actual knowledge as to their false or misleading character was
required. It must be calculated to mislead, therefore.
An important breakthrough for Defendants came in the similar case of Carmello –
v Casey & Casey12. The Plaintiff had suffered injury in a road traffic accident in
2002. The Defendant conceded liability and the case proceeded as an
assessment. At the hearing, the Defendants contended that the facial numbness
7
Mulkern v Flesk (2005) IEHC 48
Corbett v Quinn Hotels Ltd (2006) IEHC 222
9
Behan v AIB plc (2009) IEHC 554,
10
Donovan v Farrell (2009) IEHC 617
11
Singleton v Doyle (2009) IEHC 382
12
(2007) IEHC 362
8
of which the Plaintiff complained was caused by a subsequent incident in May,
2003 which had come to the attention of the solicitors for the Defendant as a
result of other litigation involving the Plaintiff in which they were involved.
Under cross examination, the Plaintiff maintained that he could not recall any
such subsequent incident and that the numbness in his face was caused by the
accident in 2002. However, there was no reference to facial numbness in the
pleadings or in the initial medical report. The first reference to facial numbness by
the Plaintiff was in a medical report of September, 2003.
The Defendant brought an application to dismiss the case pursuant to s.26, even
though they adduced no evidence themselves to show the Plaintiff in fact
suffered a facial injury in the subsequent May 2003 accident. However, Peart J
dismissed the entire claim on grounds it was substantially fraudulent. On the
balance of probability, the Plaintiff was deliberately untruthful in his pleadings, his
verifying affidavit and in the giving of his evidence in an effort to obtain an award
of damages to which he was not entitled. The court could not accept there was
the slightest possibility the Plaintiff did not recall the subsequent accident of May,
2003.
Peart J highlighted the very clear purpose of s.26 as being to avoid injustices to
Defendants against whom false and exaggerated claims were mounted. The
court held that in applications under s.26, the question for the court was whether
on the balance of probability, it could be satisfied, by reference to the Plaintiff’s
evidence and verifying Affidavit, that he had knowingly given false or misleading
evidence in a material respect. Once so satisfied, s.26 was mandatory in nature
so that the court should dismiss the claim unless to do so would otherwise result
in injustice.
In assessing the evidence, the court would also look at all surrounding
circumstances including the pleadings, replies to particulars and medical reports
and would then arrive at a conclusion as to the truthfulness or otherwise of the
Plaintiff on the balance of probability.
5. THE CASE LAW FROM 2010 ONWARDS
In Farrell v Dublin Bus13 Quirke J dismissed the Plaintiff’s claim for damages
arising from a road traffic accident. The misleading evidence related to her claim
for loss of earnings. A bus had collided with the rear of her car. The accident
occurred on 14th June, 2004, but there was a series of mishaps with the
presentation of the case.
The pleadings put forward a case for ongoing loss of earnings on grounds that
the Plaintiff had been unable to return to her former employment as a cleaner
with Jury’s Hotel. The loss of earnings was not particularised. Ten days before
the trial date in 2008, the Plaintiff swore an affidavit of discovery which confirmed
that she had no earnings, other than social welfare benefits, since the accident
four years earlier. Less than a week before the trial date, the Plaintiff’s solicitors
served an actuarial report particularising a claim for loss of earnings to date of
€71,000 and a future loss of earnings claim of between €161,000 and €343,000.
Needless to say, the Defendant sought an adjournment of the case to investigate
this aspect of the claim. Before the case came on a second time, another affidavit
was sworn by the Plaintiff admitting to some earnings from taxi driving in 2007
and 2008. In acceding to an application to dismiss the entire case under s.26,
Quirke J referred to these moving goal posts and to the fact that one of the posts
had been entirely uprooted when the Plaintiff opened her case by abandoning
her claim for future loss of earnings and confining/limiting her claim for past
earnings loss.
In acceding to the Defendant’s application to dismiss the entire case under s.26,
Quirke J noted features of the Plaintiff’s evidence during the case. It had
13
(2010) IEHC 327
emerged that she had also worked in a “fish & Chip” premises in Harold’s Cross,
deputising for the owner of the premises, but she maintained it was unpaid work
because the owner was an Italian friend who gave her free accommodation
during annual holidays to Italy. Between 2004 and 2007, she had been a
frequent holidaymaker to the United States despite having little or no income.
Quirke J also cited two previous cases where she had received awards of
damages and failed to disclose them to various doctors. Nor had she mentioned
her fall down a stairway in April, 2005.
The court rejected the notion that the Plaintiff was naïve and said she had the
benefit of professional legal advisors with considerable experience. He added as
follows:
“where, as in this case, a claim for particular losses (in this case a sum
up to €343,000) is simply abandoned when challenged, it is
inappropriate for a Plaintiff to simply proceed with his/her claim as if
nothing unusual has occurred. Something unusual has occurred which
must be satisfactorily explained to the court. There is an obligation, in
such circumstances, for the Plaintiff, preferably at the commencement
of the hearing, to provide the court with an adequate explanation why
the sum was advanced in the first place and why it was abandoned.
Failure to provide such an explanation will often give rise to an
inference that the claim was not bona fide”.
Quirke J took an equally strict view in Higgins v Caldark Ltd14 where he found the
Plaintiff to be ”a quiet and hard working man who……suffered a severe and
disabling injury which ………detrimentally affected his earning capacity”.
Moreover, he had made no attempt to exaggerate the nature and extent of his
injuries or consequences.
However, his verifying affidavit had contained
knowingly false and misleading averments concerning his loss of earnings claim
and the effect of his injuries on future costs for home help and assist of
14
(2010) IE HC 527
appliances. He rejected counsel’s submission that rather than dismiss the claim
in its entirety, which would be unjust and disproportionate, he should penalize the
Plaintiff by awarding him reduced damages for his consequential losses.
Quirke J gave some indication of which might amount to an injustice such as
would prohibit a court from dismissing a claim under s.26 when he said the
following:
“The fact that the dismissal of an action will deprive a Plaintiff of
damages to which he or she would otherwise be entitled cannot by itself
be considered unjust. Section 26 of the Act contemplates and requires
such a consequence. Evidence in some proceedings may disclose the
likelihood of injustice consequence upon a dismissal. For instance, it may
be unjust if the claim of a catastrophically injured claimant for the cost of
ongoing care is dismissed because he/she has knowingly adduced some
(perhaps trivial) misleading evidence in respect of some other categories
of damages. Similarly, the dismissal of a fatal injuries claim, based upon
misleading evidence knowingly adduced by an adult Plaintiff, may unjustly
penalize infant or incapacitated dependants”.
It is difficult to see how the rationale in Farrell v Dublin Bus survives
the effect of two Supreme Court judgments relating to s.26. The cases are Ahern
v Bus Eireann15 and Goodwin v Bus Eireann.16 At first instance, Feeney J in
Ahern had refused an application to dismiss the case on under section 26. The
Plaintiff was an elderly lady. A claim for future care had been made and at the
time, it was intended to call both a nursing expert and an actuary. On appeal, the
Supreme Court emphasised the role of the trial judge and the particular weight
the court will attach to the trial judge’s assessment of the Plaintiff’s demeanour in
giving evidence and the manner of that evidence.
15
16
(2011) IEHC 44
(2012) IEHC 9
There is very little by way of analysis in the Supreme Court judgment and it is
necessary, in order to establish its rationale, to quote from the judgment of the
High Court judge which was endorsed in the Supreme Court. In that regard, the
appeal can be divided into two parts, namely, an appeal against his finding that
Section 26(1) was not applicable and an appeal against his finding that section
26(2) was not applicable.
In relation to section 26(1) the thrust of the claim made by the Defendant was
that a claim for care had been made and then abandoned. At paragraph 15 of
the Judgment, Denham C.J. quoted from Feeney J. as follows:“The main area relied on to support a finding under s. 26 by the
Defendant relates to a claim for care. Absent the Plaintiff’s
daughters, it might be the case that the Plaintiff has reached the
age and a health condition where some help, or care, or minding, might
be required. On the physical side the court is satisfied that the
Plaintiff’s deterioration is more likely to be linked to her age and her
pre-accident osteoarthritis, but the court does not, and should not, draw
any adverse findings in forming that view…….. and the
court is satisfied that any reliance on the need for increased care or
minding has not been deliberately exaggerated, and it cannot be said that
the Plaintiff’s evidence, or the evidence adduced by her, or in her
affidavits, is in this respect knowingly false or misleading.”
Feeney J. also concluded that a claim in relation to travel was not precisely
correct, but not deliberately false or misleading. In relation to the claim under s.
26(1) Denham C.J. ruled, at paragraphs 25 and 26 of her judgment, that there
were no grounds under which s.26(1) could succeed as the trial judge had held
the Plaintiff to be an honest witness, nor had she procured anybody to give false
evidence on her behalf because the claim for care and the expert evidence in
that regard had been abandoned prior to hearing.
As to the contention that the claim should be dismissed under s.26 (2), at
paragraph 32 of the Judgment, Denham C.J. quoted again from Feeney J. as
follows:-
“The Plaintiff’s need for a carer, and the reference to it in her second
affidavit of verification, was stated as being a case that ‘were it not for the
accident I would not have required such assistance’. I have already
indicated that such a view was not a deliberate false or misleading
statement, but rather a genuine statement of the Plaintiff’s subjective
belief. The court therefore determines that the provisions of section 26(2)
do not apply to this action.”
It is, therefore, somewhat difficult to clearly see the line which can be drawn
between false and misleading evidence and evidence that may be potentially
false and misleading but is abandoned and how practitioners must advise.
In Goodwin –v- Bus Eireann, heavy reliance was placed on the fact that the trial
judge had believed the Plaintiff and had considered her to be an honest witness.
The Supreme Court was reluctant to interfere with that view and the appeal
seeking to dismiss the Plaintiff’s claim under s.26 of the Act was unsuccessful.
Fennelly J. giving the Judgment of the court set out the task for Defendants. At
paragraph 49 he puts it thus:“49. It is obvious that the Defendant, upon whom the burden lies, faces a
daunting task in making its case on appeal in circumstances where the
trial judge, invited expressly to do so, declined to make such a finding
and expressly said that she was not satisfied that the Plaintiff had
knowingly given false or misleading evidence…………..”
He then quoted from s.26 of the 2004 Act and having made reference to
the case of Ahern v Bus Eireann, went on at paragraph 63 to state as
follows:“63. In the absence of a finding from the trial judge that the Plaintiff, in
this case, had knowingly given false or misleading evidence, it is
impossible for the Defendant to succeed. She was the judge who heard
all the witnesses, apart from those who gave evidence on commission,
and, especially, heard the Plaintiff whose evidence was at issue. This
court cannot substitute itself for the trial judge in the assessment of
credibility of witnesses.”
From these cases, it can be seen that the belief of the Plaintiff will be extremely
important and the test would appear (according to the Supreme Court) to be
highly subjective in terms of whether the Plaintiff will be successful or not. It
should be noted that most of the more recent cases have seen Defendants
succeed with s. 26 applications but, it would have to be said that in all of them,
there appears to have been manifestly false and misleading evidence given and
findings that the Plaintiffs gave their evidence in a deliberately false or
exaggerated manner.
Before dealing with some of the cases which both predate and postdate the
Supreme Court decisions, one passage of a Judgment of O’ Neill J. in Dunleavy
v Swan Park Limited trading as Hair Republic17 is apposite where he
stated:“38. Finally, I wish to observe that s. 26 of the Civil Liability and Courts
Act 2004, is there to deter and disallow fraudulent claims. It is not and
should not be seen as an opportunity to seize upon anomalies,
inconsistencies and unexplained circumstances to avoid a just liability.
Great care should be taken to ensure, in a discriminating way, that clear
evidence of fraudulent conduct in a case, exists before a form of defence
17
[2011] IEHC 232
is launched which could unjustly do grave damage to the good name an
reputation of a worthy Plaintiff.
Dunleavy was a case where the Defendant asserted that the Plaintiff had
concealed vital information during the preparation of the case in relation to her
social activities, the computation of her income, her prior psychiatric history and a
road accident which occurred after the incident of which she complained. O’Neill
J rejected the argument. For example, she had not mentioned taking prescribed
anti-depressants on three occasions because she had not regarded herself as
mentally ill, but rather as “a coping person under great strain” at a time of
difficulty in her marriage and an incorrect computation concerning her income
had been the result of an obvious error, rather than an effort to mislead.
In Nolan v Kerry Foods Limited18¸Irvine J refused an application under s.26 and
while reference was made to Quirke J’s decision in Farrell and Peart J’s decision
in Carmello, the court also referred to Feeney J’s decision in Ahern v Bus
Eireann, but not to the Supreme Court ruling. However, Irvine J appears to have
followed what was ultimately the rationale in the Supreme Court decision in thatit
is quite clear that she was directly interpreting s.26 as requiring her to disbelieve
the Plaintiff before she went further.
In a slightly older case of Kerr v Molloy
19
the Plaintiff suffered an injury to his big
toe in an industrial accident. During the hearing of his claim for negligence and
breach of duty, he maintained that the injury prevented him from working and that
he was in constant pain. Herbert J concluded that the Plaintiff was exaggerating
his injuries and that his evidence in regard to his inability to work and constant
pain was false. He was satisfied the Plaintiff knew that his evidence was false.
However, he declined to dismiss the case as he considered this would result in
an injustice. The Plaintiff had made no claim for loss of earnings and had not
18
19
[2012] IEHC 208
[2006] IEHC 364
pursued his claim for special damages. His assertion that he had constant pain,
when asked about the matter had, according to Herbert J:
“A certain formulaic quality about it rather than appearing to be
consciously considered replies”.
The court had not been misled by the replies. Herbert J commented that in the
circumstances, he believed it would be altogether disproportionate and therefore
unjust to dismiss the action, although he would have done so had the Plaintiff
made a claim for loss of earnings or loss of ability to compete in the labour
market.
The preponderance of cases, especially in recent years, has seen s.26
applications succeed, mainly in circumstances where there manifestly false and
misleading evidence given by a Plaintiff. One example is Danagher v Glantine
Inns20 which is referred to in the latest edition of McMahon & Binchy.21 In that
case, the Plaintiff, a student, had received injuries at the Defendant’s nightclub
during an altercation. He claimed that for several years after the incident, he had
suffered from persistent neck and back pain which had reaked havoc which his
third level studies and sporting activities, causing him to drop out of college for
over a year. During cross examination, it emerged that he had participated in a
parachute jump for charity during this period. Irvine J was satisfied that:
“When he told the court definitively that the parachute jump had taken
place the year before the nightclub incident…he did so deliberately,
hoping to mislead the court on this most material issue knowing full well
that, if he admitted his involvement in that jump, just six months after his
alleged assault….it would completely undermine the extent of the injuries
which he was contending for”.
20
21
[2010] IEHC 214
Op cit parag 44.305
As regards his claim that he had developed Post Traumatic Stress Disorder and
had felt introverted and unable to participate in certain types of social activity or
to return to previous sporting activity, his Facebook page told a different story
and as Irvine J observed:
“A number of self authored entries record the Plaintiff’s current
participation in hurling, rugby and other sports. Further, other entries
referred to his social life and many such entries advertise the Plaintiff’s
apparent enthusiasm for nightclubs, dancing and drinking.
One such entry states as follows: activities – playing hurling, rugby and
Gaelic football, favourite music – anything that will get me dancing and
hitting the roof”.
In Nolan v Mitchell,22 Smith J dismissed the Plaintiff’s claim where the figures
relating to earnings supplied to the actuary had “no evidential basis whatsoever”.
No explanation or clarification had been given for the figures. Moreover, the
Plaintiff had falsely informed a vocational rehabilitation consultant that he had
been obliged to give up his hobby of “car drifting” as a result of limitations of his
physical capacity brought about by his injuries.
In Rahman v Craigfort Taverns Limited23, O’Neill J was unimpressed with the
Plaintiff’s claim in its totality. He concluded that there had been a gross
exaggeration of the injuries and he noted that what was at issue was an
exaggeration in relation to the claim for General Damages rather than special
damages and he concluded the Plaintiff had set out to grossly exaggerate the
claim so that he would accede to an application to dismiss s.26(1) of the Act.
A similar conclusion was reached by Ryan J in Montgomery v Minister for Justice
& Ors
22
24
where he concluded that the Plaintiff had set out a false claim. In
[2010] IE HC 151
[2012] IEHC 478
24
[2012] IEHC 443
23
particular, he noted blatant untruths and as he described it at paragraph 45 of the
Judgment, the Plaintiff had revealed what he termed:
“…..a determination to maximize her damages by manipulating the
evidence by non disclosure, and when appropriate, by deliberate lying….”.
He took a similar view in Meehan –v- B.K.N.S. Curtain Walling Systems Ltd25
where he dismissed a claim when the Plaintiff had testified “repeatedly and
insistently” that he had not worked in any way since the accident, but where the
Plaintiff had been forced in cross examination to concede that he was engaged in
“a substantive business of ticket selling” as a professional ticket tout, attending
between 100 and 120 events a year. Ryan J observed that it was:
“Not open to this court to separate out the good from the bad. That is
what the court might have done before s.26, but the situation is different
now and the cases make it clear that the sanction is to be applied, unless
there are quite specific features that would lead to injustice”.
Another reason for dismissing the claim was that the Plaintiff had abandoned his
original account of how the accident occurred (without explanation), other than by
reference to confusion once he was confronted by CCTV footage of the accident
which was inconsistent with his original account.
Just last year on 12th April 2013, Ryan J dismissed the Plaintiff’s action in Ludlow
v Unsworth26 where the Plaintiff knowingly made a false and misleading
allegation that the Defendant was the driver of the Plaintiff’s vehicle and where
there was no specific injustice in dismissing the claim. According to Ryan J:
25
26
[2012] IEHC441
[2013] IE HC 153
“The probability is that Terence Treacy was driving the car and that Darren
Unsworth has nothing to do with this accident. If such a person exists, his
connection with the accident is very improbable. I think that the Plaintiff
was endeavouring to protect Mr. Treacy for whatever reason and that is
why she claimed to have such an absence of memory and introduced this
other alleged casual acquaintance of theirs…..the Plaintiff has to prove her
case. It is true that it is sufficient for her to establish that she was injured
when travelling as a passenger and the identity of the driver does not
determine liability. But a Plaintiff cannot play fast and loose with the truth,
cannot tell some truth but not the whole of it, cannot tell a mixture of lies
and truth and leave it to the court to try and winkle out the good from the
bad. The circumstances of the case are material. They include the events
before the critical incident in which the injuries were sustained as well as
what happened after. The Plaintiff in her evidence to the court told some of
the truth but stops substantially short of telling the whole truth and nothing
but the truth.
In Salako v O’Carroll
27
Peart J dismissed a personal injuries claim on grounds
that the Plaintiff gave a deliberately false and exaggerated account of her
symptoms to medical practitioners and was not a credible or reliable witness. It
appears to be a case where the evidence against the Plaintiff was overwhelming.
It was a minimal impact collision case where the Plaintiff’s car was rear-ended by
the Defendant’s vehicle traveling at 5 to 6 mph. Yet, she claimed significant,
head, facial and back injuries. The Plaintiff was from Togo. Her first language
was French. He English was fluent with a pronounced accident which
occasionally led to difficulties understanding her, but even allowing for this fact,
Peart J was “completely satisfied” that she had deliberately exaggerated her
injuries so as to enhance her claim.
27
[2013] IE HC 17
Finally, an interesting case is Cross J’s decision of 17th July 2013 in Lackey –vKavanagh
28
. Here, the Plaintiff was travelling in the upstairs compartment of a
bus which was stopped on Ballyfermot Road when the Defendant’s car drove into
the rear of the bus. Liability was admitted but the Defence plead that the collision
and impact was so minor that she “did not or could not have suffered the alleged
or any personal injury, loss or damage”. This was pleaded even though the
Defendant’s car was written off in the impact. By way of special reply, the Plaintiff
pleaded that the Defence was “oppressive and untrue” in circumstances “where
the Defendants at all material times knew this assertion was and could only have
been untrue”. Accordingly, the Plaintiff claimed aggravated and/or exemplary
damages. Cross J dismissed the s.26 application and as to the claim for
aggravated/exemplary damages, he remarked as follows:
“I’m of the view that since the introduction of the 2004 Act, which clearly
impacts upon a Plaintiff disproportionately, more than on a Defendant, the
issue of aggravated/exemplary damages must always be in the mind of a
court where it is alleged that the Plaintiff was deliberately exaggerating his
or her claim and/or being guilty of a fraud or otherwise invokes the
provisions
of
s.26
of
the
2004
Act.
I
think
the
issue
of
aggravated/exemplary damages is the only real deterrent to an
irresponsible or indeed an over enthusiastic invocation of such a plea….
As was submitted on behalf of the Defendant, there is no such case to be
made against the Defendant here. Be that as it may, I believe the court
must be vigilant in not allowing an unwarranted allegation of fraud or any
unwarranted invocation of the provisions of s.26 of the 2004 Act to go
unpunished if the circumstances allow”.
In Creane v Gavin Waters, (13th December, 2013), de Valera J found that the
Plaintiff had knowingly misled a number of expert witnesses, medical and other,
28
[2013] IE HC 341
and had exaggerated his injuries. Although he had suffered serious injuries, the
judge dismissed the claim.
CONCLUSIONS
Quite obviously, it is difficult to establish clear principals deriving from the
judgments since the passing into law of s.26 of the Civil Liability & Courts Act
2004. The prevailing judicial attitude appears to be moving towards acceding to
applications under s.26 and practitioners should be concerned to err on the side
of caution when advising client’s of the potential difficulties which might arising in
relation to false or exaggerated information/evidence.
That s.26 is draconian is clear and unambiguous. It imposes an obligation on a
court to dismiss a claim where the Plaintiff has given or adduced false or
misleading evidence. The court has no discretion.
The section applies to the entire claim. The court does not have power to dismiss
part only of a claim. It will be dismissed even where a Plaintiff has suffered
serious injuries as a result of the Defendant’s negligence if, for example, he
deliberately exaggerates his injuries or his financial loss.
The false or misleading evidence must be material, not trivial.
The burden of proof lies with the Defendant to the civil standard, namely, the
balance of probability, although it might be noted that given the very serious
implications which flow from a successful invocation of the statutory provision, a
high degree of probability should be satisfied before the burden of proof is
discharged. Put another way, great care should be taken to ensure that the
balance of probability has been established.
The court may decline to dismiss the claim if that step would result in injustice
being done. What amounts to “injustice” in this regard is undefined and has
nowhere yet been substantially teased out in any case, so far as I know, save to
the extent alluded to by Quirke J in Higgins v Caldark.
It seems to me that replies to particulars have become an important document in
this context. By that stage of a case, if not when the Personal Injury Summons is
drafted, the parameters of the claim should have been established by the
Plaintiff’s solicitors with regard, for example, to whether and to what extent a loss
of earnings claim will be maintained, to whether the Plaintiff had other accidents
prior to or after the claim then underway.
Solicitors should be speaking to their clients and emphasising the consequences
of swearing an affidavit of verification. While it is true that the Supreme Court in
Ahern v Bus Eireann permitted an affidavit of verification to stand which had
substantiated a case not ultimately pursued by the Plaintiff, the concern is that
this was because the High Court Judge (Feeney J) had considered the Plaintiff to
be genuine, possibly in part, because she was elderly and possibly because a
benign view was taken of her overall. There remains a great danger that claims
put forward and substantiated by affidavit which are subsequently abandoned
could still be the subject of successful s.26 applications on appeal to the
Supreme Court and there seems to me nothing to prohibit the Supreme Court in,
an appropriate case, from affirming a decision such as Quirke J’s rulings in
Farrell v Dublin Bus or Higgins –v- Caldark.
If a Plaintiff has given false/incorrect evidence or has exaggerated evidence in a
material respect, the rebuttable presumption must be that a court will identify it as
deliberate and treat it accordingly.
What is clear from the case is that if a Plaintiff’s action is dismissed by a trial
judge on grounds that he/she has assessed the Plaintiff’s demeanour and
concluded the Plaintiff was dishonest, there is little prospect of overturning that
decision on appeal to the Supreme Court as the law now stands.
NOTE:
The author wishes to acknowledge assistance received in the preparation of this
paper from Sara Moorehead SC’s Bar Council CPD paper (February, 2013) on
false and misleading evidence and from Fennelly J’s recent paper of 12th March,
2014, referred to in the introductory section of this paper.