Wednesday, February 22, 2012

Legal Update ¦ Civil Litigation ¦ Liability and Quantum ¦ Separate Hearings

Burke -v- Mc Kenna
[2011] IEHC 449

This was an application pursuant to Order 36, Rule 9 of the Rules of the Superior Courts to separate the hearings on the questions of liability and quantum. The application was brought by the defendant.

The plaintiff was claiming damages for personal injury arising out of a road traffic accident that occurred on the 9th September 2007, and it was pleaded that he suffered very severe injuries including head injuries that left him with severely disabling brain damage. There was a major issue on liability and also considerable questions regarding the extent of the injuries caused by the collision (in circumstances where the plaintiff had been in a previous road traffic accident on the 23rd September 2000 in respect of which he recovered general damages of €257,000, having sustained, inter alia, a major head injury.

Order 36, Rule 9 provides as follows:-

“Subject to the provisions of the preceding rules of this Order, the Court may in any cause or matter, at any time or from time to time order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and in all cases, may order that one or more issues of fact be tried before any other or others”.

The High Court (Ryan J.) held as follows:-

“On the face of it, this application makes good sense. It is very likely that there will be issues of considerable complexity in regard to the plaintiff’s head injuries and their consequences and causes. The relevance of that evidence is entirely contingent on the outcome of the liability issue. If that is known it may be possible for the parties to reach agreement on quantum, subject to the approval of the Court. Since liability is very much in issue, if it happens that the plaintiff fails in the action, then there would be a substantial saving of costs and inconvenience and time in scheduling the quantum issue separately”.

The court went on to comment that there was really no legitimate argument against the application and also stated that “The surprising thing is that there have not been many other applications of this kind brought by way of separate motion rather than by application in the personal injury list”.

The court almost went so far as to confirm that practices in the personal injury list are unprofessional, stating that complex brain injury cases often involve

“Detailed technical evidence by busy experts who may have travelled far to testify. Such witnesses find it difficult to understand how their evidence cannot be scheduled for a precise time. The Court can have difficulty accommodating them. It is not very professional to lump all the witnesses whether they are lay or technical together in the hope that somehow the arrangements will work out. It seems to me to make sense to direct separate trials of liability and damages in cases involving complex of lengthy technical, scientific or medical questions. In fact, the difficulty is to explain or justify why any other arrangement should be made”.

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Wednesday, February 15, 2012

Legal Update ¦ Costs ¦ Criminal Prosecution ¦ Award of costs to acquitted Defendant

D. P. P. -v- Mc Nicholas trading as John Joe Mc Nicholas Plant Hire & Ors
[2011] IECCC 2

This judgment of the Central Criminal Court (Cooke J.) concerned an application by the defendants for their costs, the defendants having been acquitted of criminal charges under the Competition Act, 2002. The decision is useful as it sets out the principles to be applied (in the Superior Courts) in deciding whether to award costs in criminal cases (whether to the prosecutor against the accused or in favour of an acquitted accused against a prosecutor). The judgment confirms that the current state of the law is that the rule presently enforced, namely Order 99, Rule 1 (as amended) applies so that “the costs of and incidental to every proceeding in the Superior Courts” include costs in criminal proceedings and these are, accordingly, “in the discretion of the Court”. The most recent amendment to the current rules is contained in the Rules of the Superior Courts (Costs), 2008 (SI No. 12/2008).

In the course of the judgment the court stated as follows:-

"Insofar as it may be difficult to conceive of a situation in which a convicted accused could apply to be awarded costs against the prosecutor, it may be that an acquittal is a sine qua non of an entitlement to apply for costs, but that does not, in the view of the Court, mean an acquittal of itself confers on the accused a prima facie entitlement to an award so as effectively to pass to the prosecutor the onus of showing cause as to why the award should not be made."

The proposition that the acquittal, as such, creates a form of presumption or starting point in favour of the accused would also appear to blur the distinction between the public character of a criminal prosecution at the suit of the State as compared with the private interests that are the subject of other forms of litigation including “public interest litigation” such as actions brought by citizens seeking declarations of unconstitutionality or proceedings by way of judicial review of administrative or quasi judicial decisions such as in the Dunne case. It would seem to the Court to be well settled that the public interest in the administration of criminal justice and the investigation and prosecution of crimes would militate against the introduction of factors or influences which might weigh against the diligent and efficient investigation of crimes and against objective, impartial and honest decision making in the commencement and pursuit of prosecutions. By the same token, of course, there must also be a public interest in the fact that the possibility of an award of costs against a prosecutor may be made where the investigation of an alleged offence, the initiation of a prosecution or its pursuit is found to have been tainted by some material failure to measure up to those standards."

In practice, therefore, an application for an award of costs will only fall to be made by an acquitted accused. Thereafter, however, the application for costs is entirely a matter for the discretion of the Court and the exercise of that discretion will turn upon an appraisal of all the relevant factors arising in the particular circumstances of each case. In the judgment of the Court there is no basis for presuming that the applicant will have an entitlement to the award because there has been an acquittal; nor is there any basis for a presumption that costs ought not be awarded because it is a criminal case."

It was necessary in the course of the judgment to consider the various factors that were relied on on behalf of the defendants as to why costs should be awarded. These costs are set out at paragraphs 22-24, and the arguments made by Counsel are set out at paragraphs 25-31 of the judgment. In brief, the defendants submitted that there had been particular lapses of conduct on behalf of the Competition Authority and the Director of Public Prosecutions in the manner in which the original complaints had been investigated and subsequently prosecuted. These submissions were rejected by the Central Criminal Court as a ground for awarding costs to the acquitted accused.

The court considered, however, that “the length of time the defendants had the charges pending against them before the issues were finally resolved together with the fact that they were put to the test of a jury trial in the Central Criminal Court” was a sustainable ground for a partial costs award in favour of the acquitted accused.

The court found as follows:-

"While, in the judgment of the Court, these charges were properly laid and the prosecution justifiably brought and fairly conducted, the Court considers that the imbalance between the length of time taken (for which the defendants are not in any way accountable) together with the formality, stress and expense of a jury trial in the Central Criminal Court on the one hand and the essential character of the events out of which the charges arose on the other, justifies the exercise of the Court’s discretion towards a partial acceptance of the defendants’ application. In the judgment of the Court the initial assessment of the case by the Competition Authority as one to be dealt with by summary trial was correct. While any infringement of s. 4 of the Competition Act 2002 is potentially serious this was not what is often referred to as a “hard core cartel” in the sense of a premeditated and organised attempt at price fixing. This was, on the evidence originally provided, something of an ad hoc or spontaneous attempt which, in the event, came to nothing apart from the collapse of the procurement process underway at the time"

Having regard to these factors, the Court considers that it would be a just and proportionate exercise of its discretion under the rule to award the defendants John Joe McNicholas trading as John Joe McNicholas Plant Hire and Oliver Dixon (Hedge Cutting and Plant Hire) Limited 50% of the costs incurred."

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Wednesday, February 8, 2012

Legal Update ¦ Personal Injuries ¦ Limitation Period ¦ Completion of PIAB Application

Kiernan -v- J. Brunkard Electrical Ltd & Anor
[2011] IEHC 448

This was a personal injury case in which a dispute arose as to whether proceedings had been issued within the time limited by the Statute of Limitations (taking into account the provisions of section 50 of the Personal Injuries Assessment Board Act, 2003).

In practice I have not found it uncommon to receive panicked telephone calls from solicitors worried that the limitation period is about to run out. This panic is usually induced by a misunderstanding of the provisions of section 50 of the 2003 Act.

Section 3(1) of the Statute of Limitations Amendment Act, 1991 as amended by section 7(A) of the Civil Liability and Courts Act, 2004 provides that an action for personal injuries caused by negligence shall not be brought after the expiration of two years from the date on which the cause of action accrued or the date of knowledge if later.

Section 50 of the Personal Injuries Assessment Board Act, 2003 provides that:-

“In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act, 1991, the period beginning on the making of an Application under Section 11 in relation to the claim and ending six months from the date of issue of an Authorisation… shall be disregarded”.

If you can imagine a clock ticking from the date on which the cause of action accrued (or the date of knowledge if later), that clock is going to run for two years. Once an application is made to PIAB the clock stops, and only starts to run again after a period of six months has elapsed after an authorisation is issued. In effect this adds to the two year limitation period any period for which the application is in PIAB plus six months. This is not a simple principle to get your head around but it is worth figuring out once and for all.

What was interesting about the Kiernan case was the court’s decision in relation to the date the application had been made. The plaintiff’s solicitors faxed a PIAB application on the 27th May 2009 and posted it on the same date. The fax on the 27th May 2009 included a copy of the cheque which was being enclosed in the post. That cheque was not received by PIAB until the 29th May 2009. PIAB deemed the 29th May 2009 to be the date that the application was made for the purposes of section 50. The High Court disagreed and found that the 27th May 2009 was the appropriate date.

The court held as follows:-

“Examining the ordinary meaning of “making of an application” the essential components were in place after the fax had been successfully delivered on the 27th May 2007 (sic). The Board had a copy application form and a copy of the medical report. The payment was not made but a copy of the cheque was in the Board’s possession and the cheque was sent by registered post on the 27th May 2009 for the appropriate fee. The Court comes to the conclusion the appropriate date in respect of the making of a claim for the purposes of the Statute was the 27th May 2009.”

Practitioners should accordingly note that, where there is any degree of urgency regarding the making of an application to PIAB, the act of faxing through the completed application together with a copy cheque should be sufficient to ensure the application is deemed complete on that date rather than on the later date when the Board actually receives the cheque.

Link to judgment on

Thursday, January 5, 2012

Legal Update ¦ Sentencing ¦ Undue Leniency ¦ Anticipated future risk of harm to others

DPP -v- Anthony McMahon
[2011] IECCA 94

“This case raises an important and difficult issue in relation to the sentencing of offenders who by reason of mental illness pose a serious risk of immediate harm to others.” (Paragraph 1 of judgment.)

The accused in this case had serious psychiatric difficulties but same were not sufficient to render him unfit to plead or unfit to be tried. However, the opinion of the consultant psychiatrist was that while the accused may have known the nature of the act he was committing, he did not know what he was doing was wrong. Accordingly, had the case proceeded to a trial, a jury which accepted the consultant psychiatrist’s evidence could have returned the special verdict of not guilty by reason of insanity, in which case the respondent would have been detained in the Central Mental Hospital until he had “recovered”. Instead of proceeding to jury trial, the accused pleaded guilty to a section 4 assault (assault causing serious harm) and a section 3 assault (assault causing harm). He was sentenced to ten years on the section 4 offence and three years on the section 3 offence to run concurrently.

The DPP appealed pursuant to the provisions of section 2 of the Criminal Justice Act, 1993 contending that the sentence was unduly lenient. Essentially the DPP was inviting the appeal court to take account of the danger the accused posed to others and urged the appeal court that it was entitled to take that into account and to impose the maximum sentence of life imprisonment.

On the 17th of January 2008 the accused, Anthony McMahon, went to St. Ann’s Day Hospital, Roxboro Road, Limerick, a day hospital for people suffering psychiatric illness, and attacked his treating psychiatrist with a knife, stabbing him on his front and right side and chest and into his right elbow. He stabbed him in total eight times. A psychologist, Dr. Burns, working in the hospital heard the commotion and came out of her office and went down the stairs. She opened the door and saw a man coming towards her holding a knife extended in his right hand. The accused stabbed her a number of times. She thought she was going to be killed. She put her hand on his shoulder and said “there is no need for this” and eventually he stopped. He then went into a waiting room and when the Gardai arrived they found him in this room.

The treating psychiatrist suffered eight stab wounds and these were life threatening injuries. At the time of sentencing he suffered from a severe form of posttraumatic stress disorder with superimposed depression and the possibility of his returning to work was remote. Dr. Burns’ injuries could have been of life threatening importance but fortunately were not as severe as those suffered by the treating psychiatrist.

At the sentencing hearing evidence was given that the accused had a previous conviction for manslaughter committed in 2001, and in 2004 had been sentenced to ten years reduced on appeal to seven years. He had been released from prison in April 2007 some eight months before this incident occurred. Evidence was also given that the accused had expressed his intention to the Gardai to plead guilty to ensure a shorter sentence.

On these facts, the DPP invited the sentencing judge to consider that the protection of society should be considered and provided for by the imposition of a life sentence in which the Applicant’s release would be monitored by the parole board. The Director of Public Prosecutions argued that if the appropriate plea of not guilty by reason of insanity had been entered on behalf of the Respondent, he would now be detained in the Central Mental Hospital until he was considered safe to be released, and that a similar result could, and should, be achieved by imposing a life sentence.

Ultimately, the Court of Criminal Appeal dismissed the appeal, on the basis that “the Court’s power to impose sentence for a criminal offence [cannot] by itself permit the Court to impose open ended detention on the grounds of anticipated future risk of harm.” In addition, the CCA said that:-

“Whether sentencing courts should be given additional powers in respect of persons who for whatever reason are deemed to pose a real and serious threat to the public, is a matter which would require the most careful review and sophisticated analysis by all the organs of government as to the mechanism by which such a result might be achieved, the prudence of adopting such a course, and ultimately its legality.”

“The protection of the public is an appropriate factor in the exercise of the sentencing function, but it cannot be extracted from that function to create a self-standing judicially created jurisdiction to impose a form of preventive detention. Whether sentencing courts should have the power to order the detention of individuals deemed to posed an immediate threat to the public, over and beyond any appropriate sentence for the crime committed, is a matter which should be addressed in the first place by detailed legislation by the Oireachtas after appropriate research and debate, and subject to Constitutional and Convention review if appropriate.”

In analysing the submission made by the DPP (that the Court should impose a life sentence on the basis of the anticipated risk of future harm), the Court of Criminal Appeal commented as follows:-

“This is a difficult question, particularly since the evidence of further propensity to violence is supported not just by the diagnosis of a consultant psychiatrist, but by the circumstances of the previous conviction and indeed, those of the present offence. However, the principle at issue here is not limited to the cases of psychiatric illness difficult though they are. The same issue can in theory arise where courts are faced with offences committed by persons of whom it can be said with a high degree of assurance that they pose a real and serious threat to the public – whether by reason of fanatical commitment to a violent cause, or from simple and irremediable evil. Many countries have struggled with this issue. Some of them have enacted elaborate legislative regimes permitting a sentencing court to impose, over and above the appropriate sentence, a form of detention until a person is no longer deemed a danger to the public.


There is no doubt that protection of the public is an objective of the criminal law and therefore a component of sentencing. The unlikelihood that the offender will ever re-offend is often a mitigating factor. Conversely the fact that an offender is a danger to the public can justify a sentence towards the highest end of the appropriate scale. Here however, what is contended for is something which is conceptually quite distinct. It is said that a court can, and perhaps must, go beyond any sentence however severe which might be considered normally appropriate to the crime (and the criminal) and impose a life sentence, if it is available, to ensure that an offender who on cogent evidence poses a threat to the public, is prevented by the simple fact of detention in prison from carrying out that threat.


First, the argument made is dependent on the happenstance that the offence which brings the offender before the Court is one which carries a possible life sentence. If for example, the Respondent had committed a less serious offence – the assault on Dr. Burns alone is perhaps a case in point – this argument could simply not be made. The Court would be confined to a sentence up to a maximum of five years. This would be so even though almost by definition, exactly the same psychiatric evidence could be given and the Respondent would pose exactly the same threat to the public. On the other hand, the mere fact that a life sentence is in theory available (as it might be for common law offences) could mean that when an offender who posed a threat to the public committed a relatively trivial offence he or she would nevertheless be exposed to the possibility of a life sentence on this argument. Indeed, the possibility of a serious threat to the public can exist whether or not the individual happens to come before a criminal court for sentencing. In this case for example, it is presumably the case that the Respondent suffered from the same illness, posed the same threat, and required the same treatment on the day before the incident as the day after, but there was nothing that a court exercising criminal jurisdiction could have done prior to the commission of the offence and the apprehension of the offender.”

Link to judgment on