Flynn v Desmond

• Jurisdiction: Ireland
• Judge: Mr. Justice Alan Mahon
• Judgment Date: 26 February 2015
• Neutral Citation: [2015] IECA 34
• Court: Court of Appeal (Ireland)
• Date: 26 February 2015

[2015] IECA 34

THE COURT OF APPEAL

Peart J.

Hogan J

Mahon J.

Appeal No. 685/14

Flynn v Desmond

[Article 64 Transfer]

Laurence Flynn

Plaintiff/Applicant

- and -

Finbarr Desmond

Defendant/Respondent

Personal Injury Claim – Costs – Appeal – Compensation – Practice and Procedures – Lack of Legal Representation – Medical Evidence – Work In jury – Agreements

Facts: In this case an order had been made in 2012 that these proceedings had been compromised by an agreement made between the Plaintiff and the Defendant on 12th November 2009, wherein it was agreed that a sum of €5,000 (subsequently increased by agreement to €5,500) was to be paid to the Plaintiff in settlement of his personal injury claim. No order was made in relation to costs. The Plaintiff, who had sustained an injury at work in 2004 appealed the High Court Order on a number of grounds. Essentially, the Plaintiff”s Appeal was focussed on his contention that the learned High Court judge failed to recognise and accept that the written agreement of 12th November 2009 had been entered into by him in circumstances where, having regard to all the facts, it amounted to an unconscionable or improvident bargain, and that he was not afforded a reasonable opportunity to obtain legal advice.

Held by Justice Mahon in light of the available evidence and submissions presented that the appeal would be dismissed, and the Order of the High Court affirmed. It was determined that the whilst the plaintiff had suffered a disability which had affected his ability to work, it was acknowledged that his compensation claim carried with it a risk that the claim was statute barred, or, if successful, would, if the matter was to have proceeded to a full hearing, attract relatively small damages because of the difficulty in establishing that the medical difficulties that afflicted the Plaintiff were caused, either directly or indirectly, by his accident in 2004. Stating that these difficulties were identified by the learned High Court judge in his judgment of 21st November 2012 and were known to the plaintiff at the time he signed the agreement to settle the litigation on 12th November 2009, and again when he reaffirmed his agreement to settle towards the end of December 2009, Justice Mahon reasoned that it could not be said that the Plaintiff”s agreement to settle his claim for a figure of €5,500 was unwise. Thus, the Court was satisfied that the absence of legal advice to the Plaintiff at the time of his agreement to compromise these proceedings did not, undermine that agreement. Therefore, it was determined that these proceedings had been compromised and concluded.

1 Judgment of Mr. Justice Alan Mahon delivered on 26th February 2015

General

2 1. On 21 ^st November 2012 the High Court (Birmingham, J) made an order that these proceedings had been compromised by an agreement made between the Plaintiff and the Defendant on 12 ^th November 2009, wherein it was agreed that a sum of €5,000 (subsequently increased by agreement to €5,500) was to be paid to the Plaintiff in settlement of his personal injury claim. No order was made in relation to costs. The Plaintiff has appealed the High Court Order of 21 ^st November 2012 on a number of grounds.

The compromise of the High Court proceedings

3 2. The Plaintiff instituted proceedings in the High Court by plenary summons dated 17 ^th December 2007. He claimed damages for personal injury and loss arising from an incident which occurred in September or October 2004 when he sustained an injury to his right index finger while employed by the Defendant as a fisherman on a fishing vessel, "Bonne Chance", off the coast of Kinsale, Co. Cork.

4 3. On 12 ^th October 2009 the Defendant filed a Notice of Motion seeking an order that the Plaintiff's claim was statute barred by operation of s. 46(2) of the Civil Liability Act 1961, a provision which applies a two year limitation period to a claim for personal injury arising from a maritime accident.

5 4. At or about this time, a settlement meeting was arranged between the parties. The Plaintiff was not legally represented, nor indeed had he been at any time in the course of these proceedings. The settlement meeting took place on 12 ^th November 2009. The Defendant was represented by his solicitor, on the instructions of an insurance company. The opportunity to obtain legal advice was declined by the Plaintiff. At this meeting a settlement of the action was agreed, submitted to writing, and signed by the Plaintiff. The written agreement provided as follows:-

6 I, Laurence Flynn of 4 Upper Convent Road, Blackrock, in the County of Cork, being eighteen years and upwards, hereby do confirm that I have entered into a settlement agreement in the above entitled proceedings on the following terms:

7 1. Acknowledge full and final settlement in the entity of these proceedings in the sum of €5,000 to include general damages, special damages and any outlays incurred.

8 2. I hereby undertake as a term of settlement that I will file and lodge, in the Central Office of the Four Courts, and serve on Conways Solicitors, 35 South Terrace, Cork, a Notice of Discontinuance within fourteen days of the receipt of the cheque.

9 3. I hereby enter into this settlement agreement in full knowledge that no admission of liability has been made.

10 4. I hereby confirm that I will agree to this agreement being entered into in the strictest terms of confidentiality and that I will not discuss this claim and its subsequent settlement with anyone.

11 I sign this agreement in the full knowledge and understanding that I have been invited to consult with an independent legal advisor prior to signing this document but I have waived this right and I am happy to do so with the full knowledge as to the consequence and import of this agreement.

12 Signed: Laurence Flynn

13 Dated the 12 ^th November 2009

14 5. On 15 ^th November 2009, some three days after the agreement, the Plaintiff wrote to, and emailed, the Defendant's solicitor informing him that he was unhappy with the settlement because the agreed compensation figure represented a minor injury, whereas his injury was serious and was likely to get worse with the passage of time. It would appear that in the weeks that followed, the Plaintiff reconsidered his position again and, undoubtedly prompted by a commitment on the part of the Defendant to pay an additional €500 making the total compensation figure €5,500, the Plaintiff confirmed in writing the settlement of the action in a communication with the Defendant's solicitor on 23 ^rd December 2009. A Notice of Discontinuance, signed by the Plaintiff, was filed in the Central Office of the High Court on 23 ^rd December 2009.

15 6. Approximately twenty four hours later on 24 ^th December 2009, the Plaintiff again wrote to the Defendant's solicitor advising him that he had again changed his mind and, effectively, rejected the settlement. On this occasion he complained that he had not been given sufficient time to obtain legal advice, and that he had been pressured into a settlement under threat of future legal action against him. He returned the cheques totalling €5,500.

16 7. On 5 ^th March 2012, the Plaintiff served a Notice of Intention to Proceed on the Defendant's solicitors.

17 8. By Notice of Motion dated 31 ^st May 2012, the Defendant applied to the High Court for, inter alia, "an order declaring that the...