Mulkern v Flesk and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 25 February 2005 |
| Neutral Citation | [2005] IEHC 48 |
| Docket Number | No.17317 P/2001 |
| Court | High Court |
| Date | 25 February 2005 |
[2005] IEHC 48
THE HIGH COURT
BETWEEN
and
CIVIL LIABILITY & COURTS ACT 2004 S26
CIVIL LIABILITY & COURTS ACT 2004 (COMMENCEMENT) ORDER 2004 SI 544/2004
CIVIL LIABILITY & COURTS ACT 2004 S26(1)
TORT
personal injuries
Dismissal of proceedings - Road traffic accident - Liability admitted - Exaggeration of injury - Exaggeration admitted in pre-trial correspondence - Whether plaintiff gave false or misleading evidence - Whether plaintiff's claim should be dismissed for giving false or misleading evidence - Civil Liability and Courts Act 2004 (No 31), s 26 - Application to dismiss refused and damages awarded (2001/17317P - Kelly - 25/2/2005) [2005] IEHC 48
MULKERN v FLESK & FLAHERTY
The defendants accept that as a result of their negligence the plaintiff suffered injuries in a road traffic accident which occurred on 15th February, 2000. Despite that they seek to have her claim for damages dismissed. They do so by reference to the provisions of s. 26 of the Civil Liability and Courts Act,2004 (the Act).
2 "(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 û
(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 s. 14 that û
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the 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 purposes 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 û
(a) brought on or after the commencement of this section, and
(b) pending on the date of such commencement."
Statutory Instrument no. 544 of 2004 , entitled the Civil Liability and Courts Act,2004 (Commencement) Order, 2004, fixed 20th September, 2004, as the day on which inter alia s. 26 of the Act came into operation.
The application to dismiss the plaintiff's claim is made pursuant to sub-s. (1) of s. 26. That subsection requires the court to dismiss a personal injuries action if it is satisfied that the plaintiff has behaved in the manner described in the subsection. That is so regardless of any question of liability in the suit. It applies even when liability is not in issue as is the case here.
Once the court is satisfied that a plaintiff has behaved in the manner described it must dismiss the action except where to do so would result in injustice being done. In such a circumstance the court is obliged to give its reasons for so holding.
The plaintiff's action was commenced by the issue of a plenary summons on 27th November, 2001. The statement of claim was not delivered until 18th June, 2002.
The defendants were concerned that the claim being made by the plaintiff was at variance with the fact that subsequent to her accident she applied for and was successful in obtaining a post with a company called Boston Scientific. Before obtaining that position she had to undergo a medical examination and complete a detailed questionnaire concerning her health. In these circumstances they requested the plaintiff to make discovery of the records which she had in her power, possession or procurement concerning her job application, medical examination and questionnaire pertaining to her employment with Boston Scientific.
That request was made on 20th August, 2002. It was ignored despite a number of reminders sent to the plaintiff's solicitors. A motion was brought before the Master of the High Court seeking such discovery. An order was made requiring the plaintiff to make discovery on oath of the relevant documents within a period of eight weeks from the making of that order. The order was made on 13th February, 2003. It was not complied with. Reminders sent to the plaintiff's solicitors were ignored.
A motion seeking to dismiss the plaintiff's claim for failure to comply with the order for discovery was brought. That motion was made returnable for 16th October, 2003 and was adjourned on a number of occasions. Finally, on 3rd December, 2003 the plaintiff made discovery. The motion had been adjourned to the following day and on that occasion was struck out with an order for costs in favour of the defendants.
On 9th December, 2003 the defendants' solicitors wrote to the plaintiff's solicitors as follows:
"We enclose herewith our defence. While the defence simply consists of a denial that the plaintiff sustained any injuries, you may take it that in the event of this matter going to trial, that the defendants will make the case that the complaints made by the plaintiff in relation to her alleged injuries are, at best, grossly exaggerated and, at worst, totally invented.
We note incidentally that, since drawing your attention to the obvious contradictions between the case made by the plaintiff in the pleadings and the contents of the documents which she has discovered, no explanation for the obvious contradictions has been offered by the plaintiff.
If the plaintiff wishes, at this stage, to discontinue her action, then we presume that our clients will not seek an order for costs against her. If the plaintiff intends to proceed with the action, you might be good enough to serve a notice of trial."
On 1st March, 2004 the defendants” solicitors wrote to the plaintiff's solicitors as follows:
"Dear Sirs,"
We wrote to you on 23rd October, 2003 pointing out the major discrepancies and contradictions between the case that the plaintiff is making, the pleadings, the reports of her doctors, the complaints which she made to the doctors examining her on behalf of the defendant on the one hand and the contents of the documents which you made available to us by way of voluntary discovery on the other hand. We wrote again on 9th December and commented that no explanations for the obvious contradictions appeared to be forthcoming from the plaintiff. While there has been further correspondence between the respective offices in the intervening period no explanation has yet been forthcoming.
On the basis of the information available to us it is clearly the situation that the plaintiff's claim is entirely at odds with the contents of the discovered documents and the fact that the plaintiff was examined prior to her commencing her employment with Boston Scientific and apparently given a clean bill of health.
The purpose of this letter is to invite the plaintiff to withdraw her action as it would appear self-evident that the plaintiff has deliberately engaged in a course of misrepresentation and/or exaggeration of her complaints in such circumstances as to constitute an abuse of the court process. In the event that the plaintiff is prepared to withdraw her action at this time we would recommend to our clients that they would not seek an order for costs against her. In the event that the plaintiff is proceeding with her action then you may assume that at the conclusion of the plaintiff's case we will apply to the court to have the plaintiff's claim dismissed with an order for costs in favour of our clients. In the event that the application is successful and an order for costs made you might note that we have specific instructions to take whatever steps are necessary to recover any costs awarded to our clients.
That letter was responded to on 4th March, 2004 as follows:
"Dear Sirs,
Further to your letter of 1st inst.
The plaintiff accepts, that when being interviewed and medically examined for her job with Boston Scientific, she did not disclose that she was involved in an accident, or had sustained personal injury.
The plaintiff had been working as a shop assistant prior to the accident, and subsequently for some short period, and was finding it impossible to continue in the said line of work, due to the physical strain of constantly standing.
He present employment with Boston Scientific does not involve standing, and thus does not put pressure on her back, and she is well aware of the fact that she has not disclosed this to Dr. Sugrue who carried out the pre-employment medical, but was conscious of the fact that if she did so disclose, she would possibly not have been employed.
The plaintiff was making every effort to minimise her losses, and thus keep her claim for compensation to a minimum.
It is quite apparent from the various medical reports which we have provided you with, and your own medical reports, that our client sustained a significant injury, and continues to suffer.
Our client never exaggerated her complaints, or misrepresented either her complaints or injuries, in any of the proceedings herein, and same were borne out by the medical evidence.
The case is listed to proceed at the forthcoming High Court Sessions in May in Galway."
In fact the case was adjourned further and did not come to hearing until the February, 2005 Sessions in Galway.
In opening the case the plaintiff's counsel accepted that when she sought employment with Boston...
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