News

Dublin Circuit Civil Court: Chronic Delays

The unprecedented Covid pandemic has impacted all of us and in particular, our Courts have become victims of multiple lockdowns and extended closure spells.

A worrying development has occurred at Dublin Circuit Civil Court where massive delays have arisen in obtaining Motion hearing dates before the Dublin County Registrar.

In recent weeks, the Dublin Circuit Court office have been assigning dates in November 2022 and December 2022 for simple Motions for Judgment in Default of Appearance and Discovery applications.

The Parchment understands that at a recent Dublin County Registrar’s Court, Motions were being assigned and adjourned to dates in February 2023.

The negative impact that these delays will have on litigants and their legal representatives will be immense.

The Parchment hopes that additional supports can be provided to the Dublin County Registrar to shorten these unacceptable 15-to-18-month delays to Motions. Practitioners will be well aware that whilst waiting for a Motion to be heard, no progress can made in the case and as a result, either the plaintiff or defendant are significantly disadvantaged.

Default at your Peril

A WARNING TO SOLICITORS AND CLIENTS

Minister for Justice Heather Humphreys signed a significant piece of law on the 24th September 2021 and it will have far reaching consequences for litigations. Statutory Instrument S.I. No. 490 of 2021 has now been adapted as additional Rules of the Superior Courts and will come into operation on the 13th November 2021.

These new rules amend the Rules of the Superior Courts by the substituting of Orders 13, 20, 21 and 27. Order 23 Rule 6 and Order 63 Rule 1 are also amended. The changes introduce strict new rules where litigants have defaulted on entering or delivering an Appearance, Statement of Claim, Defence.

The new rules provide for the following: • Judgment can be entered in a motion for

Judgment in default of defence or default of Statement of Claim except where justice requires an extension of time that where such an extension is granted, the

Court shall make an “Unless Order” – thus requiring one Court hearing only. • The party in default will have eight weeks for delivery of their outstanding

Statement of Claim or delivery of their

Defence in all cases. • There is now a requirement to provide the defaulter with a 28-day warning letter prior to bringing of a Motion for Judgment in default, including Judgment in default of

Appearance.

These new rules are applicable to proceedings whether commenced before or after the Commencement Date (13 November 2021) but will not apply to any applications which have been issued prior to that date.

This new Statutory Instrument and new Rules for litigants have come about following a decision of the Superior Courts Rules Committee.

Law Society Election

Keith Walsh

John Glynn Tony O’Sullivan Susan Martin

Valerie Peart

Maeve Delargy

October is election time for the Law Society Council and the Parchment is supporting all Dublin-based candidates by publishing their candidature in the upcoming election.

The following are the Dublin-based candidates for election to the Law Society Council 2021/2022: Justine Carty – The Property Registration Authority Maeve Delargy – Philip Lee Solicitors Paul Egan SC – Mason Hayes & Curran LLP Damien Glancy – ESB Networks Legal John Glynn – John Glynn & Co. Paul Keane – Reddy Charlton LLP Liam Kennedy – A&L Goodbody LLP Graham Kenny – Kenny Solicitors Gary Lee – Ballymum Community Law Centre Susan Martin – Martin Solicitors Tony O’Sullivan – Beauchamps LLP Valerie Peart – Pearts Solicitors Marcin Szulc – Rostra Solicitors Keith Walsh – Keith Walsh Solicitors

There are other candidates running for election who are based outside of the capital and therefore, we have not featured them here.

Your voting ballots must be returned to the Law Society no later than the 28th October 2021.

As this is the Parchment, we cannot let the occasion pass without a plug for former DSBA Presidents Keith Walsh, Tony O’Sullivan and John Glynn. The DSBA’s current secretary and Council member Susan Martin deserves special mention.

There is an excellent field of candidates to choose from in this year’s Law Society Elections. Make up your own mind, support the DSBA and the Dublin candidates and ensure that you vote.

The Annual John F Buckley cricket match between The DSBA v The Bar of Ireland took place on Friday 3rd September 2021. The match is now in its third year and the teams played for the John F Buckley trophy, named after the late John F Buckley who was a former DSBA President.

Well done to all involved and congratulations to the Bar of Ireland on the win! Left to right: Bar and DSBA teams

Left: Niall Carroll of Leinster Cricket Club and Mark Bergin Far left: Aidan Buckley, Duncan Grehan and Roland Budd

Right: Niall Cawley, Mark Murphy BL and Kevin O’Higgins Far right: Nicolette Lennox and Matthew Kenny

Right: Bar of Ireland team Far right: Diego Gallagher and Tony O’Sullivan

Left: Matthew Kenny bowls to Niall Buckley Far left: Simon Mills BL Mark Murphy BL

Right: Diego Gallagher, Vice President of the DSBA presents to Roland Budd BL the winner’s trophy

Left: The Solicitors’ team Far left: Dave McAlinden and Timmy McDowell

Robbie Slattery is a partner in the Commercial and Business team at Hayes Solicitors. Gill Cotter is an associate solicitor in the same team at Hayes Solicitors

Are all Orders Created Equally?

Robbie Slattery and Gill Cotter examine a recent High Court case decision dealing with agreed consent orders submitted by the respective parties, without hearing evidence on the subject matter of the consent orders

Whilst it cannot be conclusively stated that this issue is now resolved once and for all, it is likely that his judgment in Matthews -v- Eircom will be relied upon by litigants who settle personal injury proceedings involving a reduction of the compensator’s liability to pay recoverable benefits to the State

The case of Matthews -v- Eircom [2019] 6301P dealt with the issue in the context of 343R of the Social Welfare (Consolidation) Act 2005 (“the Act”) and the State’s Recoverable Benefit and Assistance Scheme which has been in operation since 2014.

The Recoverable Benefit and Assistance Scheme (the “Scheme”)

The Scheme makes it compulsory for all compensators to repay the Department of Employment Affairs and Social Protection (the “State”) any amounts of illness related benefits that have been paid to an injured person by the State arising from the injuries sustained in an accident. The Scheme seeks to ensure that illness related benefits are reimbursed to the State.

According to the Act, Social Welfare payments are to be repaid to the State by the compensator liable for a personal injury. The compensator is only liable to the extent of that amount as ordered or assessed.

The Scheme in Practice

It is common that personal injury proceedings are settled out of court. As part of the terms of settlement it might be agreed by the parties that the amount of recoverable benefits (which the Defendant is responsible for) be reduced, having regard to the circumstances of the individual case. If there is an agreement to reduce the amount of recoverable benefits, the State will not be fully reimbursed. It has been argued that this could unfairly prejudice the financial position of the State and taxpayer.

Matthews -v- Eircom

These were personal injuries proceedings which were settled before the full hearing of the case. The parties came before Mr. Justice Cross and asked that the case be struck out with an order for costs in favour of the Plaintiff. Liability was apportioned on a 50:50 basis, and it was agreed by the parties that there would be an appropriate reduction in the amount of recoverable benefits to be paid by the Defendant to the State.

The question for the Judge to consider was whether evidence needed to be heard regarding the amount of recoverable benefits due to the State, or if the Judge could grant the order, as agreed by the parties, without the need to hear evidence on the issue.

In delivering his judgment, Mr. Justice Cross clarified the intention of the governing legislation and in doing so held that consent orders which made apportionments of liability for the purposes of the Scheme were valid.

Cross J. referred to comments made by Mr Justice Keane in an academic article (Irish Judicial Studies Journal Vol. 4 (2)) and also to two judgments by Mr. Justice Twomey (Condon -v- HSE [2015] 10070P and Szwarc -v- Hanford Commercial Ltd t/a Maldron Hotel Wexford [2018] 9268P).

In these judgments Twomey J. had refused to make consent orders which related to loss of earnings and recoverable benefits, even where the terms of the settlement had been agreed between the parties. Twomey J. noted that the term “court order” required an “independent and mutual determination of the evidence”. On this basis the court required a full hearing to make a consent order for the apportionment of recoverable benefits. Twomey J. held that a consent order agreeing reduced liability to pay reduced recoverable benefits could prejudice the financial position of the State and therefore the State’s consent was also required.

In addressing the position taken by Twomey J., Cross J. remarked, “It is unfortunate that Twomey J. was not advised of the universal practice of the personal injury courts or of the fact that this court has expressly found that it had jurisdiction to make declarations sufficient to satisfy s. 343R on consent”.

Cross J. affirmed the jurisdiction of the courts to make consent orders in settled cases without the need for a hearing of evidence on the issue.

Conclusion

The judgment of Cross J. is the first formal written judgment on this well-established practice in the courts. Whilst it cannot be conclusively stated that this issue is now resolved once and for all, it is likely that his judgment in Matthews -v- Eircom will be relied upon by litigants who settle personal injury proceedings involving a reduction of the compensator’s liability to pay recoverable benefits to the State.

This judgment is relevant to all personal injuries cases in this jurisdiction, and will have particular relevance for any Defendant in personal injuries litigation as it will have a tangible impact on its potential financial exposure. P