Domican v AXA Insurance Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 19 January 2007
• Neutral Citation: [2007] IEHC 14
• Court: High Court
• Docket Number: [2006 No. 5050P]
• Date: 19 January 2007

[2007] IEHC 14

THE HIGH COURT

[No. 5050P/2006]

DOMICAN v AXA INSURANCE LTD

BETWEEN

STEPHEN DOMICAN

PLAINTIFF

AND

AXA INSURANCE LIMITED

DEFENDANT

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S50

MAGEE v AG 1974 IR 284

KENNEDY & ORS v IRELAND & AG 1987 IR 587 1988 ILRM 472 1988 2 367

COGLEY & ORS v RADIO TELEFIS EIREANN (RTE) 2005 4 IR 79 2005 2 ILRM 529 2005 11 2271 2005 IEHC 190

AG v PAPERLINK 1984 ILRM 373

MURPHY v INDEPENDENT RADIO & TEEVISION COMMISSION (IRTC) 1999 1 IR 12 1998 2 ILRM 360 1999 20 6111

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

KHORASANDIJAN v BUSH 1993 2 FLR 66

MARGETSON & JONES, RE 1897 2 CH 314

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (PIAB) UNREP MACMENAMIN 25.1.2005 2005/45/9381 2005 IEHC 100

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S7

PROFESSIONS

Solicitors

Solicitor/client relationship - Plaintiff instructed defendant to communicate only with plaintiff's solicitor - Defendant copied information directly to plaintiff - Whether such communication interfered with solicitor/client relationship - Whether such communication breached right to privacy - Injunction refused (2006/5050P - Clarke J - 19/1/2007) [2007] IEHC 14Domican v AXA Insurance Ltd

The plaintiff sought an interlocutory injunction restraining the defendant from interfering in the solicitor/client relationship between the plaintiff and his solicitor by communicating directly with him or otherwise howsoever harassing or molesting the plaintiff in connection with his personal injuries action against a party insured by the defendant herein. The defendant brought a motion to dismiss the plaintiff's claim on the grounds that it disclosed no stateable cause of action or was frivolous. Both applications were heard together and were treated as the trial of the action. The plaintiff essentially claimed that by copying letters to him directly, despite the existence of an authority signed by him directing the defendant to communicate with the plaintiff only through his solicitors, the defendants breached his constitutional right to privacy and infringed his relationship with his solicitor.

Held by Clarke J. in dismissing the plaintiff's claim:

1. That it was not established that there was any breach of the plaintiff's constitutional right to privacy or his right to privacy guaranteed by the European Convention on Human Rights. Given the nature of the relationship between the parties, it was necessary that there be some communication and the plaintiff failed to establish that his right to privacy extended to the narrow question of the manner in which communication with him was to be conducted. Furthermore, the defendant's actions did not amount to a private nuisance or to harassment or molestation.

2. That the mere copying of information directly to a client, which information his solicitor would, in any event, be under a duty to inform the client about, to advise him on, and to act on the client's instructions arising out of, would not amount to a significant or material interference in the solicitor/client relationship. Consequently, on the facts of this case, the actions of the defendant did not amount to any of the wrongs alleged by the plaintiff.

Reporter: L.O'S.

1. Introduction

2 2 1.1 The net issue in this case arises in the changing landscape within which claims relating to personal injury are now progressed. The background to the dispute between the parties stems, at least in part, from the operation of the Personal Injuries Assessment Board ("PIAB"). However the proceedings do not involve PIAB itself, but rather what are contended to be knock on effects of the establishment of PIAB on the negotiation of early settlement of straightforward personal injury claims.

3 3 1.2 In simple terms the issue between the parties concerns the question as to whether the defendant ("AXA"), in its capacity as insurer, is entitled to copy its correspondence concerning the claim made by the plaintiff ("Mr. Domican") to Mr. Domican directly notwithstanding the fact that Mr. Domican has given written instructions to the effect that all such correspondence should be addressed to his solicitors and that no contact is to be made directly with him.

2. Procedural History

2 2 2.1 The dispute between the parties having arisen, Mr. Domican issued proceedings and brought an application seeking an interlocutory injunction restraining AXA "from interfering in the solicitor/client relationship between the plaintiff and his solicitor by communicating .. directly with the plaintiff .. or otherwise howsoever harassing or molesting the plaintiff in connection .. with his claim for damages against one Patrick Doyle for personal injuries suffered and sustained as a result of an accident on 17th July, 2005 on the Collinstown Road, Clondalkin, Dublin 22."

3 3 2.2 A supplementary order was also sought directing AXA to abide by written authority signed by Mr. Domican of 28th August, 2006 relating to the same claim for damages. That written authority sought to direct AXA to communicate with Mr. Domican only through his solicitors.

4 4 2.3 AXA also brought a motion before the court which sought an order dismissing Mr. Domican's claim on the grounds that it failed to disclose a stateable cause of action or was frivolous, vexatious and an abuse of the court process and bound to fail.

5 5 2.4 It being clear that there were no significant issues of fact between the parties and that the question of law raised, while to an extent novel and undoubtedly of some importance, was nonetheless quite net, I suggested, and the parties readily agreed, that the trial of both motions would be treated as the trial of the action. Both applications were heard together on that basis and this judgment is, therefore, directed to the question of whether Mr. Domican is entitled, in all the circumstances of the case, to the relief which he claims.

3. The Facts

2 2 3.1 As is implicit in the orders sought, Mr. Domican claims to have been injured in a road accident, which injuries, he says, are attributable to the negligence of an insured of AXA. It does not appear to be in dispute but that AXA are liable to indemnify the person concerned and that, therefore, at a commercial level, the question of the payment of compensation to Mr. Domican arises, in practice, between him and AXA.

3 3 3.2 Mr. Domican's claim progressed in a normal manner. Messrs. H.J. Ward and Company Solicitors, ("Mr. Domican's solicitors") whom he had instructed, wrote to Patrick Doyle on 28th August, 2006 seeking an admission of liability on the part of Mr. Doyle in relation to the accident. Mr. Domican's solicitors were already aware of the fact that AXA appeared to be the insurers of Mr. Doyle and wrote on the same date to AXA enclosing a copy of the letter to Mr. Doyle and also a letter of authority from Mr. Domican. Amongst other things the letter of authority contained the following statement:-

"I do not wish to receive any communication from you by way of correspondence. Similarly, if you wish to make contact with me by telephone, please do so by telephoning my solicitors and leave any message with them. Please do not contact me".

4 4 3.3 In accordance with the Personal Injuries Assessment Board Act 2003 ("the 2003 Act") and in particular ss. 11 and 50 of that Act, it was necessary for Mr. Domican to first make an application for an assessment of his claim to PIAB. This, together with appropriate supporting documentation, was done by letter of 15th September, 2006. PIAB having drawn attention to an incompleteness in the application, and having had that matter dealt with, acknowledged, on the 29th September, 2006, that the application was complete for the purposes of s. 50 of the 2003 Act.

5 5 3.4 It is, of course, therefore, the case that, so far as court proceedings are concerned, the matter as and between Mr. Domican and Mr. Doyle (and in reality AXA on behalf of Mr. Doyle) is frozen until such time as PIAB have dealt with the case. That is not, however, a barrier to a settlement of the proceedings being reached between Mr. Domican and AXA at any stage.

6 6 3.5 Against that background AXA sought to progress the question of possible settlement by correspondence directed to Mr. Domican's Solicitors but, it would appear, copied in each case directly to Mr. Domican. There can be no doubt that the copying of the correspondence to Mr. Domican was in breach of his request to AXA not to contact him directly. The question that arises in this case is as to whether, in copying the correspondence directly to Mr. Domican, contrary to Mr. Domican's request, AXA are acting in anyway unlawfully such as would justify the court intervening by way of injunction. Those undisputed facts are sufficient for the issue to arise. However there are a number of other factual matters that were canvassed in the course of the affidavit evidence filed by the parties, on which it is necessary to touch before going on to consider the legal issues which arise.

4. Some Facts in some controversy

2 2 4.1 While there are no disputes between the parties as to the primary facts in this case there are some aspects of the factual contentions put forward that, while not directly material to the issues, are relevant to the background to the dispute and in relation to which there is at least some difference of opinion as to how the facts should be interpreted or characterised. I propose dealing with some of those issues.

3 3 4.2 The first matter concerns the position adopted by Mr. Domican, on advice his solicitors, in relation to an early settlement. It is clear that Mr. Domican was advised that his best interests would lie in awaiting an assessment of his claim by PIAB. In the course of the hearing it was suggested that the reason for such...