Of interest is the judgment delivered by Collins J (in which he agreed with the lead judgment of Noonan J), and in which was highlighted the generic style of the indorsement of claim in the case before him:
“The majority of the particulars of wrongdoing are in boilerplate form, expressed in such generic terms as to be utterly uninformative ... for instance, it is said, without more, that the ESB failed to provide a safe place of work for the plaintiff. It is also said the ESB was in breach of the Safety, Health and Welfare at Work Act 2005. No clue is given as to what provision of that act the ESB was said to be in breach of, or what act or omission on its part constituted such breach.”
Noting that the ‘cover-all-bases’ art of pleading was no longer permissible since the introduction of the Civil Liability and Courts Act 2004, he concluded that: “A plaintiff is required to plead specifically and cannot properly rely on the pleading equivalent of the Trojan Horse, which can, as needed, spring open at trial and disgorge a host of new and/or reformulated claims.”
Tentacles of doom
It is to be noted, also, that an overly prolix personal injuries summons containing such ‘boilerplate’ pleadings might have cost implications under order 19, rule 4 of the Rules of the Superior Courts.
Morgan was not the first time Collins J had considered the 2004 act. In Crean v Harty, the plaintiff had undergone hip surgery and alleged that, as a consequence, he had suffered peripheral neuropathy of his right lower leg.
There was no allegation of negligence in relation to the surgery; rather, the plaintiff claimed he had not given fully informed consent. The defendant had delivered a blanket defence, including the following plea: “The first defendant denies that they failed to obtain the plaintiff’s informed consent prior to surgery on 7 October 2015.”
Particulars were raised in respect of this plea, seeking precise particulars of the information allegedly given, by whom and when. The defendant refused to provide the particulars sought on the basis that it was a “straight denial of a plea contained in the personal injuries summons.
It is not permissible to raise particulars upon a denial.” However, Collins J rejected this assertion, noting: “A straight denial – perhaps more accurately characterised as a bald denial – appears to be precisely what this part of section 13(1)(b) is targeted at. As already noted, there may be circumstances where it is not possible to give particulars of a denial, but where it is possible, section 13(1)(b) mandates the provision of such particulars.”
Escape from victory
Noonan J also sharply criticised a plea of contributory negligence in the defendant’s defence in Naghten v Cool Running Events Limited. In this case, the plaintiff was ice-skating on an ice-rink when she (unsurprisingly) slipped. Unfortunately, another skater skated over her hand, causing a laceration.
She alleged that the defendant had been negligent in, among other things, allowing too many participants onto the rink. The incident had been captured on CCTV, which was a key issue for the court.
The defence alleged that the plaintiff (who was a minor at the time) was guilty of contributory negligence, in that she, among other things, “acted in such a manner that she knew or ought to have known would cause her personal injury”.
This plea was criticised by the court on the basis that the incident was captured on CCTV, and no witnesses as to fact were called by the defendant, therefore leading to the conclusion that no staff members were able to lead evidence of any alleged inappropriate behaviour on the part of the plaintiff.
A further plea was made that the plaintiff’s mother had failed to supervise the plaintiff or have regard for her safety. Again, the court concluded this plea was “advanced without any evidential basis and, indeed, on the contrary, in the teeth of the [CCTV] evidence, which was at all times in the defendant’s possession”.
There was a further plea that that the mother had failed to seek proper treatment or to take any steps to alleviate her daughter’s pain and suffering. The court concluded that this was a serious and hurtful allegation of neglect, and no credible attempt was made to stand over it at the trial.
However, the court was most critical of the fact that the director of the company – who had signed the affidavit of verification and did give evidence for the defendant – distanced himself from the pleas under cross-examination, and stated they were not made on his instructions.
The court concluded: “The days of making allegations in pleadings without a factual or evidential basis, if they ever existed, have long since passed. Section 14 of the Civil Liability in Courts Act 2004 obliges plaintiffs and defendants alike to swear an affidavit which verifies any assertions or allegations contained in pleadings in personal-injuries actions … The focus of section 14 is most commonly on plaintiffs, particularly when taken in conjunction with section 26 dealing with fraudulent claims. This case provides a timely reminder that section 14 applies with equal force to defendants, and careful consideration is required before pleas of the kind that are seen in this case are advanced, which I would deprecate in the strongest terms.”
The case is a clear reminder that a defendant must take the utmost care when delivering a defence, particularly where CCTV exists of the incident. Clients should always be advised that it is an offence to swear a misleading or false affidavit under section 14(5) of the Civil Liability and Courts Act 2004.
Speed 3
A plea that remains in the pleadings, even if not advanced at the hearing, can lead to criticism from the courts if it is one that has no evidential basis. Furthermore, from a barrister’s perspective, rule 5.5 of the Code of Conduct expressly prohibits a barrister from drafting any pleading, witness statement or affidavit that is not supported by the client’s instructions.
The potential consequences of a plea improperly made in pleadings – but not advanced at the hearing – was recently seen in Doyle v Donovan. The case arose out of a road-traffic accident, and the defendant alleged in her defence that the plaintiff deliberately caused the collision.
In the Circuit Court, the defendant did not stand over the plea and, in terms of the evidence, the furthest the defence went was that the plaintiff had braked suddenly and this may have been negligent. On appeal, the defendant conceded liability, and the case proceeded as an assessment, but no application was made to amend the pleadings. The plaintiff sought aggravated damages, but this was refused by Simons J. He stated that it was inappropriate to do so, as:
a) The swearing of a false or misleading affidavit of verification was a criminal offence and it would, therefore, normally not be necessary for a court to impose an additional sanction by an award of aggravated damages,
b) The conduct of the defendant was confined to the plea in the defence, and the impugned plea was not actually put to the plaintiff in the Circuit Court, and the defendant herself did not stand over the plea,
c) There was an asymmetry between plaintiffs and defendants, as there was no way of sanctioning a plaintiff who was guilty of litigation misconduct, and
d) It is more appropriate to sanction litigation misconduct by an appropriate costs order.
In the subsequent costs hearing, Simons J noted that, between the conclusion of the Circuit Court hearing and the High Court hearing and costs hearing, no explanation or apology had been offered by the defendant and, instead, a further issue was raised in respect of the special damages that had been claimed by the plaintiff, which suggested that there had been an exaggeration of his special damages in the sum of €30 (for over-the-counter medicine).
This had not been put to the plaintiff at the hearing. The court concluded that it was satisfied that the defendant and her insurer had engaged in precisely the type of litigation misconduct that justified the making of an award of costs on the higher ‘legal-practitioner-and-client’ basis.
The decision in Doyle can be contrasted with Stokes v South Dublin County Council, where Barr J awarded aggravated damages of €5,000 to the plaintiff following an allegation that his claim was a fraudulent one. This was pursued in cross-examination, and so differs from Doyle under point (b) above.
Down with this sort of thing
Finally, can a successful defendant who is guilty of litigation misconduct face a sanction?
A parallel can be drawn with O’Carroll v Áras Sláinte Limited & Ors. This was a medical negligence action in which the plaintiff’s case was dismissed. However, she was ‘robustly’ cross-examined by the defendant and, in particular, a picture of the plaintiff on Facebook was put to her, with the suggestion that she was not being truthful with her evidence regarding her injuries.
In the High Court, Cross J refused to award the defendant its costs against the plaintiff, and this was appealed by the defendant. The Court of Appeal agreed that Cross J was entitled to mark his disapproval of the line of questioning, which was pursued even after the court had indicated that it did not consider the line of questioning proper.
The Court of Appeal allowed the appeal, but only allowed the defendant to recover 50% of its costs, which it considered to be a more proportionate order.
When considered in conjunction with the cases set out above, this decision would seem to indicate that a costs sanction could equally apply to a successful defendant who has delivered a defence with an improperly made plea.
Go on, go on, go on
Practitioners for both plaintiffs and defendants must be cognisant of the requirements under sections 12-14 of the Civil Liability and Courts Act 2004. Courts will expect pleadings to be clear and concise, and it would seem that a generic or ‘boilerplate’ indorsement of claim will not be received well. Equally for defendants, care should be given to a blanket denial, as it may still expose the defendant to an order compelling further particulars of the claim.
Plaintiffs and defendants must be able to stand over all pleas contained in the pleadings. Perhaps more importantly, if there is evidence that undermines the plea that is available to the defendant at the time of the delivery of the defence (such as CCTV), it is likely to be the subject of, at best, severe criticism and, at worst, a sanction in terms of costs.
Outside of the civil proceedings, a deponent who swears a misleading affidavit of verification commits an offence.
Finally, absolute care must be taken where a plea is made in a defence expressing or implying fraud without prima facie grounds for doing so, as the court will be at large to make an award of aggravated damages or costs on a legal-practitioner-and-client basis. It may be necessary to amend the pleadings, even prior to an appeal, in order to avoid such consequences.
LOOK IT UP
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