Browne v Van Geene
 IEHC 24
THE HIGH COURT
[2012 No. 3367 P.]
Tort - Personal injuries - O.22, r.6 of the Rules of the Superior Courts - Liability - Medical negligence - Refusal to accept monies lodged - Costs
Facts: The defendants made an application and sought an order for costs. The plaintiff claimed damages in respect of personal injuries suffered by her due to the alleged negligence of the first and second named defendants. Subsequently, the plaintiff was awarded the damages and the defendants made a lodgement, which was later on increased by the order of the Court, and which was not accepted by the plaintiff. The defendants contended that the plaintiff had failed to accept either the initial lodgement or the increased lodgement and thus, the defendants were entitled for the costs from the date on which she had refused to accept the increased amount. The plaintiff contended that even though she did not beat a lodgement; she was entitled to the costs as she had established her case at the trial. The plaintiff contended that since the defendants had retracted from its position to refer the dispute to mediation, they should not be awarded the costs.
Mr. Justice Barr held that the plaintiff was entitled to her costs prior to the date of initial lodgement and the defendants were entitled to their costs after the date of initial lodgement and those costs were to be taxed in default of the agreement. The Court noted that the plaintiff had two opportunities to accept the lodgement and the increased lodgement but she chose not to accept them. The Court held that the balance of lodgement, together with the interest thereon, should be returned to the defendant.
The plaintiff in these proceedings claimed damages in respect of personal injuries suffered by her due to the alleged negligence of the first and second named defendants, in and about the medical care given to her when she had a hysterectomy and oopherectomy operation, carried out by the first named defendant at the hospital run by the second named defendant on 6th April, 2010. In essence, the plaintiff claimed that due to negligence on the part of the first named defendant when carrying out the operation, sutures were inserted into the ureter leading from her bladder into her left kidney. As a result of this she suffered injury to her bladder and damage to her left kidney, which resulted in that kidney having to be removed some years later in 2013. The plaintiff alleged that she had suffered severe personal injury, together with extensive loss of earnings and other items of special damage as a result of the injuries sustained by her.
Prior to the trial of the action, the defendants conceded liability and the action proceeded as an assessment of damages only. After a hearing, which lasted some eleven days, judgment was reserved and the plaintiff was awarded damages against the defendants in the sum of €260,111.25.
This judgment deals with an application for costs made on behalf of the defendants on the following basis: having regard to the fact that on 27th September, 2016, the defendants had made a lodgement in the sum of €280,000, which had subsequently been increased pursuant to Order of the High Court on 23rd January, 2017, to €450,000, neither of which had been accepted by the plaintiff, it was submitted on behalf of the defendants that the plaintiff was entitled to her costs up to 27th September, 2016, but that as she had not beaten the amount initially lodged by the defendants, they were entitled to their costs from that date onwards.
The plaintiff resisted that application on a number of grounds. Firstly, it was submitted that the awarding of costs was always within the discretion of the court. It was submitted that in this case, the defendants had initially agreed to submit the matter to mediation, but had subsequently refused to attend at the scheduled mediation meeting and had refused to nominate any alternative date for the mediation. In these circumstances, the court was entitled to have regard to the refusal of the defendants to engage in mediation when considering the issue of costs. It was submitted that having regard to their refusal to engage in mediation, the defendants should not be awarded any of their costs.
Secondly, the plaintiff submitted that because the defendants had been given liberty to increase their lodgement by virtue of the Order of Cross J. dated 20th January, 2017, it was a pre-condition of being given liberty to do so, that the defendants should pay to the plaintiff all her costs up to the date of the increased lodgement. It was submitted that this liberty to pay costs arose once the defendants in fact increased their lodgement and continued irrespective of whether the plaintiff ultimately failed to beat either the initial lodgement or the increased lodgement.
Thirdly, it was submitted that as a number of scheduled hearing dates for the trial of the action had to be vacated, due to the fact that the defendants were not in a position to proceed for one reason or another, the plaintiff should be awarded her costs in respect of the dates which had to be vacated.
Fourthly it was submitted that O. 22, r. 6 provided that even where a plaintiff did not beat a lodgement, he or she was still entitled to the costs of any issue on which they were successful at the trial of the action. In this case, the defendants had withdrawn the issue of liability, but had specifically kept in issue the question of causation. In particular, the defendants strongly denied that as a result of the negligence of the defendants, any injury had been occasioned to the plaintiff's bladder. That issue had been fully fought at the trial. The judgment of the court had been with the plaintiff on this issue; which held that there had, in fact, been an injury to her bladder. Accordingly, it was submitted that the plaintiff was entitled to the costs of establishing that issue at the trial of the action.
Fifthly, at the conclusion of the hearing the defendants had made an application that the entire of the plaintiff's claim should be dismissed pursuant to s. 26 of the Civil Liability and Courts Act 2004, on account of the plaintiff allegedly having given false and misleading evidence in relation to her ability to engage in gainful employment and in relation to her past and future loss of earnings. In its judgment, the court had rejected that application. It was submitted that this finding of the court was a sufficient reason to enable the court to depart from the general rule in relation to costs and the failure of a plaintiff to beat a lodgement. It was submitted that by defeating the s. 26 application, the plaintiff had shown ' special cause' to justify a departure from the normal rule in relation to costs and lodgements.
Sixthly, it was submitted that in view of the fact that the lodgement and offers, which had been made subsequent thereto by the defendants, were no longer ' on the table' for acceptance by the plaintiff during the trial, the defendants had effectively withdrawn the lodgement. In such circumstances they should not be allowed to rely on the lodgement as a means of denying the plaintiff her costs.
As the plaintiff has set out a number of grounds on which she submits that the normal rules in relation to costs and the failure of a plaintiff to beat a lodgement, should not apply, it is necessary to set out the matter in some detail.
Order 22 of the Rules of the Superior Courts is headed 'Payment Into and Out of Court and Tender'. This order sets out the time periods within which a defendant may make a lodgement or tender in different types of actions. As there is no issue in this case as to whether the lodgement, or the increase of the lodgement, were validly and properly made, it is not necessary to set out the provisions which apply in relation to the time periods within which a defendant may make a lodgement or increase a lodgement in a personal injuries action.
The relevant rule in relation to this application, is set out in O. 22, r. 6 which is in the following terms:-
'6. If the plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than the amount paid into Court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply:
(1) If the amount paid into Court exceeds the amount awarded to the plaintiff, the excess shall be repaid to the defendant and the balance shall be retained in Court.
(2) The plaintiff shall be entitled to the costs of the action up to the time when such payment into Court was made and of the issues or issue, if any, upon which he shall have succeeded.
(3) The defendant shall be entitled to the costs of the action from the time such payment into Court was made other than such issues or issue as aforesaid.
(4) The costs mention in paragraphs (2) and (3) hereof shall be set off against each other; and if the balance shall be in favour of the defendant, the amount thereof shall be satisfied pro tanto out of the money remaining in Court and, in so far as the money remaining in Court is not sufficient to satisfy the same, shall be recoverable from the plaintiff; or if the balance shall be in favour of the plaintiff, the amount thereof shall be recoverable from the defendant.
(5) Any money remaining in Court after satisfying the balance (if any) due to the defendant...
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