Liability had been admitted in the case, and the settlement terms had been agreed between the parties and ruled by a Circuit Court judge. Despite this, the infant who was the subject matter of this case, along with their family, suffered a cruel injustice as their names and address were printed in the newspapers and the floodgates opened on social-media platforms for the world at large to comment at will. The comments that followed, as in other such rulings, were often offensive and extremely hurtful.
Criticism was also directed towards the legal representatives involved in the case: "Name and shame the lawyers involved. They are the ones advising the claims culture, and making big fees from the settlements. Insurance companies shouldn't be allowed to roll over every time. A few big losses for plaintiffs will do a lot for claims culture in Ireland.”
The only parties fully informed of the true circumstances of this accident and injury were the parties to the case, their legal teams, and the judge in question. The legal teams agreed settlement terms after seeing the medical evidence, and the court ruled the settlement on the basis of the same.
Not an easy decision
When a child suffers an injury, it is very traumatic for both themselves and their family. If the injury is alleged to be a result of negligence or tort, the parents or next friend of the infant must decide if they wish to pursue legal action on their behalf.
This is often not an easy decision. It is not a decision without risk, as the next friend will be liable for any costs or should the case be unsuccessful. This can be stressful for the parent or next friend who merely wishes to do their best for the child, and almost always takes a case out of principle.
The cruel injustice is that, even when a parent or next friend has been brave enough to take such a case and is successful in agreeing a settlement, this settlement will be ruled in a public court, subjecting the infant to public ridicule.
In accordance with section 63 of the Civil Liability Act 1961 , all offers made in infant cases must be ruled before the judge of the court in which proceedings have been issued, regardless of whether the next friend or legal advisors approve of the offer. The process of ruling ensures the protection of the infant's interests and also deals with any issues arising regarding the infant's lack of legal capacity to enter into the settlement on their own behalf.
Similarly, rulings are also required where the Personal Injuries Assessment Board makes an assessment in a case, and these proceed under section 35 of the Personal Injuries Assessment Board Act 2003 .
These legislative mechanisms were intended to protect infant plaintiffs and to facilitate the settlement of claims involving such plaintiffs. These claims cannot be settled unless the court approves. If the court approves the settlement, all parties are protected and can rely on the order.
Unfortunately, the legislation did not provide for these applications to be heard in camera. Thus, the default position is that infant rulings are conducted in open court, as required by article 34.1 of the Constitution: "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
The case for change
We live in an age of social media, where individuals can share their thoughts with the world within seconds of their creation. There is no filter.
The need to protect our infant plaintiffs from abuse after the settlement of their cases does not only arise in response to the freedom to comment on social media. The need arises purely from the fact that, if an adult plaintiff settles their case, they can do so privately, without a court hearing and without any details being available to the media or public.
Article 34.1 does not prohibit an adult plaintiff from settling a personal-injury claim privately and with full confidentiality. Therefore, why does an infant ruling or a personal-injury claim require a public ruling?
Our Constitution requires justice to be administered in public. Infant-ruling applications would appear to have the characteristics of the 'administration of justice' if, for example, measured against the 1965 McDonald v Bord na gCon five-part test:
- A dispute or controversy as to the existence of legal rights or a violation of the law,
- The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty,
- The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties,
- The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment,
- The making of an order by the court which, as a matter of history, is an order characteristic of courts in this country.
The very fact of the application results in the public hearing and it is long established – and recently confirmed by O'Donnell J in Zalewski v An Adjudication Officer and WRC, Ireland and the Attorney General – that "article 34.1 makes clear that public hearings are of the essence of the administration of justice".
However, the Supreme Court has confirmed in Gilchrist v Sunday Newspapers (see below) that the courts have a common-law jurisdiction to order in camera hearings in civil matters – in this case, a defamation hearing. This jurisdiction is to be used in exceptional circumstances involving constitutional interests, but allows limitations to be placed on article 34.1, by statute or judicial decision, to protect other rights and interests.
The court summarised the principles that apply where exceptions to article 34.1 are sought and made clear that any exceptions must be strictly construed, involve clear and pressing interests, and be no more than necessary to protect these interests.
Successful applications have been brought under the Gilchrist principles in the disciplinary context of the medical profession and of social workers, resulting in in camera hearing and reporting restrictions. While there is a high threshold to be met to achieve protection under the Gilchrist principles, it is indeed possible to apply for an in camera infant ruling or at least for reporting restrictions or anonymity in respect of same in suitable cases.
Further, there may be legislative basis for a hearing otherwise than in public under section 45 of the Courts (Supplemental Provisions) Act 1961: "(1) Justice may be administered otherwise than in public in any of the following cases: ... (c) lunacy and minor matters".
There is no definition of 'minor matters' and no reported case law on the application of the same to infant ruling. However, arguably, this provision provides the protection required to infant plaintiffs in personal injury claim settlement rulings.
Due to the COVID-19 pandemic, remote hearings of civil proceedings were permitted under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 . Infant rulings were conducted by way of remote hearing. The Pexip video-conferencing code for the remote hearing was available to the legal teams via the court registrar, court office, Bar Council and Law Society. A code was required to attend the ruling.
Despite the lifting of restrictions, many infant rulings continue to be conducted by remote hearing. The practice of many courts appears to be that all such rulings are conducted remotely unless scarring is required to be viewed or the next friend wishes to address the court directly. Remote infant rulings attract little publicity, preserve privacy for the infant, and generally do not result in the cruel injustice identified above.
While remote rulings have alleviated much of the concerns expressed above for some infant plaintiffs, these changes may be temporary and have been retained for convenience, not for the protection of infant plaintiffs or the equalization of infant and adult plaintiff rights. Many infant rulings continue to be ruled in public.
Moreover, the introduction of remote hearings and maintenance of the same for convenience does not deal with the substantive matters involved and is not an adequate solution. Indeed, as O'Moore J noted, in Irish Bank Resolution Corporation Limited (in Special Liquidation) v Brown:
“I do not think that the interests of justice are served by a hearing (which would ordinarily be in public) being one from which the public or the press are excluded because it is taking place remotely. This is just one example of a situation where the remote hearing may be contrary to the interests of justice even if it is not unfair to the participants.”
Although the cruel injustice of subjecting an infant plaintiff to a public ruling appears to stem from unequal treatment based on age, it is much more complex. There does not appear to be a basis for constitutional challenge of the relevant legislation. In reality, even if there was a sound basis for such a challenge, it is unlikely that any next friend of an infant plaintiff would risk the vast costs exposure such a case could bring.
Legislative change to allow in camera infant rulings is key and is warranted to protect the interests of the infant plaintiff. Alternatively, a lesser intervention to protect the interests of the infant plaintiff may be suitable, such as reporting restrictions. Legislative change was possible in this area when urgency required it due to the COVID-19 pandemic. The need for change in the conduct of all infant rulings must gather momentum and become urgent, if legislative change is to occur.
Until such time, and in order to gather such momentum and urgency, applications should be made to the court for an in camera hearing on the basis of section 45 of the Courts (Supplemental Provisions) Act 1961 – and, indeed, on the basis of Gilchrist v Sunday Newspapers – in all suitable infant rulings where the interests are clear and the circumstances pressing.
Alternatively, less intervention, such as reporting restrictions or anonymised names in the listing and case can be applied for. As with other areas of our court rules, our judges have a lot of discretion, and it is our duty to request the exercise of such discretion for the continued protection of our injured clients, in particular our youngest and most vulnerable.
THE GILCHRIST PRINCIPLES
The Gilchrist v Sunday Newspapers principles that apply, where exceptions to article 34.1 are sought:
- The article 34.1 requirement of the administration of justice in public is a fundamental constitutional value of great importance.
- Article 34.1 itself recognizes, however, that there may be exceptions to that fundamental rule.
- Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public.
- Any such exception may be provided for by statute, but also under the common-law power of the court to regulate its own proceedings.
- Where an exception from the principle of hearing in public is sought to be justified by reference only to the common-law power, and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing.
- If it can be shown that justice cannot be done unless a hearing is conducted other than in public, that will clearly justify the exception from the rule established by article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public (if it has been done), and for the court to exercise that power in a particular case if satisfied that it is a case that presents those features which justify a hearing other than in public.
- The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that the court must be resolutely skeptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular, this will mean that, even after concluding that a case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible, such as providing for witnesses not to be identified by name, or otherwise identified, or for the provision of a redacted transcript for any portion of the hearing conducteda camera.
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