For policyholders subjected to a personal injury claim they believe to be fraudulent, it often feels like the system is rigged in favour of the claimsters. Solicitors are happy to take cases on a no-win, no-fee basis.
A recent Circuit Court case involving a Dublin football fan and the GAA has highlighted the issue of unwarranted personal injury claims made where there is no negligence.
In this case, according to Ray Managh in the Irish Times1, “A life-long Dublin supporter, whose glasses were smashed into her scalp when hit by a football in Croke Park six years ago…had her €60,000 damages claim against the GAA thrown out in the Circuit Civil Court.”
Critically, “a number of letters” had been sent to Ms. Bernadette Martin’s solicitors “advising them that her case was bound to fail after a number of actions relating to similar Croke Park incidents had been withdrawn when rigorous safety precautions had been pointed out to potential claimants.”
“In this case the defendant has been put to the expense of addressing this claim despite those warnings” according to the GAA’s barrister.
However, Judge John O’Connor rejected the GAA’s application for a wasted costs award against Ms Martin’s solicitors, although he stressed that “it should not be presumed the court would not make such awards in the future”.
So what is a wasted costs order and should we be seeing more of them in the future?
A wasted costs order made by a court disallows legal fees or obliges a solicitor to repay legal fees or other costs incurred by their client, in certain circumstances involving misconduct, delay, negligence, omission or improper behaviour.
According to Mr. Justice Keane in Bebenek V Minister for Justice and Equality & Ors  IEHC 323:
“Order 99, r. 7 of the RSC (Rules of the Superior Courts) confers a power on the court – in any case where it appears that, by reason of some misconduct or default on the part of a solicitor acting for a person, costs have been improperly or without reasonable cause incurred by that person or that costs properly incurred by that person have nevertheless proved fruitless to him or her – to call on that solicitor to show cause why those costs should not be disallowed between the solicitor and his client and also, if the circumstances of the case require, to show why the solicitor should not repay any costs which the client may have been ordered to pay any other person, and then to make whatever order is just on those issues”
That potential liability has been restated more recently in the updated RSC rule2 which is at Order 99, Rule 9.(1):
9.(1) If in any case it appears to the Court that costs have been improperly or without any reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of the legal practitioner, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court may –
(a) call on the legal practitioner acting for the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the legal practitioner and his client and (if the circumstances of the case require) why the legal practitioner should not repay to his client any costs which the client may have been ordered to pay any other person, and thereupon make such order as the justice of the case may require;
(b) refer the matter to the Legal Costs Adjudicator for inquiry and report and nominate another legal practitioner to attend and take part in such inquiry.
Given the damage that entirely unwarranted personal injury claims are causing to the fabric of Irish society and the widely held perception among policyholders that such claims are essentially a free grab for Ireland’s generous personal injury compensation levels, it is no longer acceptable that such plaintiffs and their solicitors ride off into the sunset, free from any sanction.
It is the view of the Alliance that where an unmeritorious personal injury claim is brought to the Courts, in circumstance where the plaintiff’s solicitor has been made aware of the detailed and sound basis on which the claim is unlikely to succeed, a wasted costs order should be made against the solicitor to cover the plaintiff’s cost as well as costs being awarded to the defendant.
IMPORTANT NOTE: The Alliance brings together 45 civic and business organisations from across Ireland, representing over 55,000 members, 700,000 employees, 622,000 volunteers and 374,000 students in highlighting the negative impact of persistently high premiums and calling for real reforms that will quickly reduce liability and motor insurance premiums to affordable levels and keep them that way.
We are neither lawyers not insurers. This blog is based on the collective experience and opinions of our members. It does not constitute legal advice. Professional advice should be sought before acting on any of the issues raised in this blog.