IESC 66 · Supreme Court

THE SUPREME COURT

Record No. 144/2003

Denham, J.

Murray, J.

Hardiman, J.

CONOR O’CONNOR

Plaintiff/Respondent

and

DUBLIN BUS/BUS ATHA CLIATH

Defendants/Appellants

Judgment of Murray, J. delivered on the 18th day of December, 2003.

Mr Conor O’Connor, the Respondent in this Appeal was awarded in the High Court €15,000 by way of general damages for personal

injuries and €5,431 for special damages. He was also awarded the costs of the proceedings on the appropriate Circuit Court scale.

On the 19th November, 1996 Mr O’Connor was the driver of a motor car which was stationary in traffic on the Malahide road when a

bus, the property of the Appellants, drove into the rear of his motor car. The Appellants did not contest liability in the High Court and

the only issue before the High Court was the quantum of damages to be awarded to the Respondent.

A central issue which arose before the learned High Court judge was the gross exaggeration of the symptoms and consequences

which the Respondent claimed to have sustained as a result of the injuries which he suffered in the road traffic accident. The learned

High Court judge found as a fact that he had indeed grossly exaggerated these matters.

The High Court Judgment

The most relevant findings of the learned High Court Judge concerning the facts and the exaggeration engaged in by the Respondent

were the following: -

“… I think the probabilities are that the Plaintiff would have suffered soft tissue injuries to his neck and back of the type that

he described and which his surgeon, Mr McNamee, confirmed in his report of the Plaintiff on the 8th April, 1997. If he did,

however, I think it equally probable that those injuries were of a very moderate injury …”

Having reviewed inconsistencies in the Respondent’s own evidence and inconsistencies between his evidence and evidence from other

witnesses he concluded: -

“Having regard to the foregoing, I have no doubt that Mr O’Connor grossly exaggerated the symptoms which he alleged that

he experiences as a result of the injuries which he suffered in the accident which gave rise to this claim. However, I am not

persuaded, as Mr Cooney for the Defence has submitted, that he told me deliberate lies. But I do not believe that he was

anything like as bad as he purports to have been since his accident, I am convinced that he believes everything that he has

told me. In other words, while I think that he is misguided and a lot of his problems, particularly his alleged on-going problems,

are a figment of his imagination, I think that basically he is an honest person. I am persuaded of this for four reasons: -

Firstly, that he never stopped working since the accident. Secondly, that he never denied engaging in any of the

activities that Mr Price filmed him doing. Thirdly, that he conceded not only improvement over the years, but also that

he had remissions which lasted for months. And fourthly, that Mr McNamee thought that he was a genuine person.

In my view if Mr O’Connor was deliberately trying to pull the wool over the court’s eye or endeavouring to attract

compensation to which he was not entitled, he would not have continued to work and would not have made the concessions

which he made in evidence.

Accordingly, I do not think that the principle laid down by the Supreme Court in the case of Shelley Morris –v- Bus Atha Cliath,

an unreported decision which was delivered on the 11th December last year to which I was referred, whereby a Court is

entitled to dismiss a claim in which a Plaintiff is guilty of deliberate exaggeration to the extent that his or her credibility is so

devalued that it cannot be relied on, applies in this case.

As I say, I think that the Plaintiff has established on the balance of probability that he did suffer an injury on the 19th of

November, 1996 as a result of the Defendants negligence.”

As regards the Respondents claim for loss of earnings, the learned High Court judge concluded: -

“However, I am not persuaded that he suffered any reduction in income as a result of his injuries.”

On this particular claim, when dealing subsequently with the issue of costs, he stated: -

“As I have indicated, I think it was a misguided one, and I do not think he is entitled to succeed in it but I am not convinced it

was fraudulent, and I am not convinced it was fraudulent because I have said, I think Mr O’Connor was a misguided but honest

person …”

In the light of his findings, the general damages awarded by the learned High Court Judge was confined to such pain and suffering as

was sustained by the Respondent from the date of accident to date of trial with no award for general damages as to future pain and

suffering. The sum awarded for special damages was confined to specific sums established to having being lost by the Respondent

such as the cost of car repair. There was no special damages awarded in respect of loss of earnings nor was any loss of earning

capacity incorporated in the assessment of general damages.

The Appeal

The Appellants outlined their grounds of appeal in the following terms: -

“(a) The findings by the learned trial judge that the Plaintiff was an honest though misguided witness was contrary to the

evidence and the weight of the evidence.

(b) The learned trial judge failed to give any or any sufficient weight to the contradictions, exaggerations and falsehoods

perpetrated by the Plaintiff both in his pleadings and in his evidence.

(c) The learned trial judge erred in law and fact in failing to hold that the Plaintiff so abused the process of the court as to

warrant dismissal of his claim, and,

(d) That the learned trial judge erred in law and in fact in not exercising discretion in favour of the Defendant as provided by

Section 17 of the Courts Act, 1981 as substituted by Section 14 of the Courts Act, 1991.”

Thus there are two parts to the appeal. The first part concerns the judgment of the High Court as to the level of damages including

whether any damages at all should have been awarded an account of an alleged abuse of process by the Respondent. The second

part of the appeal concerns the costs awarded and the manner in which the High Court exercised its discretion in applying Section

17(5) of the Courts Act 1981 as amended by the Courts Act, 1991.

Abuse of Process

One of the issues raised at the conclusion of the evidence in the High Court, and now raised on appeal, is that the Respondent’s claim

should be dismissed for “abuse of process”. It is claimed that the deliberate falsehoods alleged to have been told by the Respondent

in the course of his evidence constituted such an abuse of process. In the High Court counsel for the Appellants applied to the

learned High Court Judge “… to dismiss the Plaintiff’s case here in its entirety, because a very large proportion of his case – a portion

of the case is false and deliberately false.” He approached it on the basis that this was “a relatively novel point in our jurisprudence”

and relied on the judgments of my two colleagues in this case, Denham, J. and Hardiman, J. in Shelly-Morris –v- Bus Átha Cliath. He

also relied on the judgment of this court in Vesey –v- Bus Éireann (Supreme Court, unreported, 13th November, 2001). The

proposition advanced, on foot of these authorities, in the High Court and in this appeal is that the Respondent’s claim should be

dismissed because of the false evidence which he allegedly gave even if the learned High Court judge was otherwise correct in holding

that on the balance of probabilities he had established some injury entitling him to some damages by reason of the Appellants’

wrongdoing. It is submitted that the learned High Court Judge ought, on the evidence to have found, not that the Respondent was

honest but exaggerating his claim, but that he deliberately and falsely put forward an exaggerated claim and was thus guilty of an

abuse of the process of the court.

It is distinct from the submission that the Plaintiff should be treated as having no credibility at all in view of his alleged proven

falsehoods in a portion of his evidence. Such a situation arises where a trial judge finds himself or herself in the situation that a

plaintiff has told so many falsehoods that it is not possible to distinguish, having regard to the onus of proof on the plaintiff, between

what may be true and what is false in the evidence given. It should be noted that the learned High Court Judge when referring to the

Shelly-Morris case in his judgment (as quoted above) cited it as authority for this approach and not as authority for dismissal of the

Plaintiff’s claim by reason of an alleged abuse of process. For reasons which I will go onto explain in my view the learned High Court

Judge was correct in that respect.

In the ordinary course of events it would not matter to a defendant whether a Plaintiff’s evidence was rejected by a trial judge either

because it was an exaggeration or because it was false. Either way the Plaintiff fails, or fails to have that evidence accepted as

establishing any fact. This case is obviously different because of the plea advanced by the defendants.

Although, for reasons which I will explain later, I do not consider that the plea, as put, could in any event succeed on the facts

before this court, I do think I should comment on the basis on which the plea was advanced in relying on the above authorities. I

have to say that I do not find either case an authority for the proposition advanced by the defendants namely that a plaintiff who

has established a claim for damages should nonetheless have his case dismissed because a portion or very substantial portion of his

case was falsely and perhaps fraudulently advanced and constituted an abuse of the process of the court.

In the Shelly-Morris case Denham, J. gave very careful consideration to the kind of situations which may arise when a trial judge finds

that a plaintiff has exaggerated including where there is a finding of deliberate exaggeration. As she initially pointed out the issue of

exaggeration by a plaintiff in court proceedings is not new, nor would I add could similar conduct on part of a defendant be

considered novel. Denham, J. went onto to refer to three of the many possible circumstances that can arise in such cases, the first

of which is where it is found that the whole claim is concocted. Then, she pointed out, the claim will be dismissed. That of course

inevitably follows from the failure of a Plaintiff to establish his or her case.

Denham, J. then referred to a second situation “… where there is a genuine claim but the effect of the injuries is exaggerated by the

claimant because of a subjective belief that the injuries have had a worse effect than they have. This type of approach involves no

conscious lying by a claimant”. In those circumstances the trial judge must simply determine the value of the claim on the basis of

the facts established.

Denham, J. then turns to a third possible situation where there is genuine case on liability but a Plaintiff deliberately and knowingly

exaggerates the injuries and their effects. She points out that this puts the credibility of the witness at issue and states “…that the

credibility is so undermined that the burden of proving a claim has not been met then trial judge will dismiss the claim.” Of course

she acknowledges that in the particular circumstances of a case a trial judge may be in a position to assess the credibility of the

witness in the light of the evidence of other witnesses. Here she is clearly referring to a situation where a plaintiff’s credibility has

been seriously undermined by reason of deliberate falsehoods on his or her part but the credibility of at least part of the claim is

established by or with the assistance of other credible witnesses entitling him or her to damages accordingly. However, in the end,

she points out that “It is for the plaintiff to prove his or her case on the balance of probabilities. It may be that the deliberate

exaggeration is such that the credibility of the witnesses is called into doubt and the burden of proof is not carried. Consequently

the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies.” In short, a trial judge finds a

plaintiff’s evidence so permeated with dishonesty that it is impossible to sift the wheat from the chaff so that he or she must be

found to have failed to discharge the onus of proof.

I think Denham, J made it clear that she was not purporting to make any novel statement as to how a trial judge should deal with

these matters. She very succinctly summarised the approach which trial judges have always taken in the three situations to which he

referred bearing in mind that the onus is always on the plaintiff to establish his or her case. To the extent that a plaintiff fails to

discharge that onus, for want of credibility or otherwise, his or her claim fails.

In addressing the facts of that particular case, in which the Plaintiff was found to have deliberately exaggerated her symptoms, she

observed “As the burden of proof is on the plaintiff the loss of credibility undermines her case as to her injuries suffered. …

Consequently, the Plaintiff was in danger of loosing her entire claim. In the light of the fact that the trial judge in this case had the

benefit of seeing her and hearing her evidence and was satisfied that she did suffer some injuries her evidence stands and is credible

insofar as it is corroborated by the medical reports.”

In her decision on that appeal, Denham, J. upheld an award of €70,000 for pain and suffering to date and reduced the award of

damages in the High Court for pain and suffering in the future. This was based solely on the issue of the credibility of the plaintiff

having regard to the onus of proof on her. The award was not interfered with on the grounds of an abuse of process and in dealing

with that question separately Denham, J. expressly stated “Deliberate exaggeration by a plaintiff may be such as to be an abuse of

the process of the court. In such a case it may be appropriate to put this to a witness and for counsel to address the legal issues.

However, that did not occur in these proceedings. Consequently, apart from raising the matter as an appropriate issue which may

be considered in the future in such a case, I make no finding.” It seems to me clear that Denham, J. was not purporting to make any

definitive decision on this point but rather saying that this could be an issue for future consideration in an appropriate case. In any

case, it is clear that the issue of abuse of process and its application to tortious actions in these circumstances was not the ratio of

her decision.

Hardiman, J. in his judgment in the same case decided the issues in the appeal on the same basis as Denham, J. namely, the extent to

which the Plaintiff could be found to have established her claim having regard to her gravely damaged credibility by reason of the fact

that she had been found to have deliberately lied to the trial court. He came to the same conclusion as Denham, J. on the question of

damages and the apportionment of liability. In deciding to modify the award made by the High Court in that case he did not rely on

any notion of abuse of process.

Certainly Hardiman, J. felt constrained or, as he put it, felt it “…appropriate to comment on the court’s power to prevent, or

remedy, abuse of process at greater length than was done in Vesey.” He recited two statements of general principle from two

English authorities which he felt were equally applicable in this jurisdiction and that the courts have a power and duty to protect their

own processes from being made the vehicle of unjustified recovery. However, he concluded “Quite properly in the circumstances of

the present case, the defendant has not sought this drastic relief. That is not to say that this relief would be inappropriate in a

similar case in the future. “

Given the basis on which Hardiman, J. decided that the Defendant did not

seek any relief on the grounds of the alleged abuse of process and the fact that, as Denham, J. pointed out, counsel did not address

the legal issues arising in that context, his observations on the subject are clearly intended to be obiter. In the circumstances

outlined it does not seem to me that the Shelly-Morris case purports to be an authority deciding that a finding of deliberate

exaggeration on the part of a plaintiff is a ground for dismissing a plaintiffs claim where the trial judge is otherwise satisfied that he or

she has established at least a portion of the claim which would attract an award of some damages.

I now come to the case of Vesey –v- Bus Éireann also relied on by counsel for the appellants in this appeal. In that case counsel for

the Appellant had submitted to this Court in that appeal that any award to which the court might think the plaintiff was entitled

should be reduced or extinguished by reason of untruths found by the trial judge to have been told by the plaintiff, as a mark of the

court’s disapproval of such conduct. This was advanced by way of analogy with the principles whereby exemplary damages may be

awarded to a plaintiff if “the defendant’s evidence or conduct of the case” has been such that the court wishes to mark it’s

disapproval of it. Counsel making that submission conceded, in that appeal, that he had found no Irish or English authority precedent

for such an order against a Plaintiff. In rejecting the submission Hardiman, J. stated “I am not satisfied that there is a direct analogy

with an award of exemplary damages to mark the Court’s disapproval of the conduct of a defendant.” In fact the appeal was

decided, as Hardiman, J. made clear, by reference to the credibility of the plaintiff and the damages awarded in the Supreme Court

were not affected by any question of an abuse of process. In those circumstances it seems to me clear that the observations of

Hardiman, J. on the potential consequences for a dishonest plaintiff of an abuse of the judicial process (introduced by the phrase,

“Even if, contrary to the view I have expressed, …”) were intended to be obiter.

In concluding on this point I think it appropriate to make some general observations.

The courts have an inherent jurisdiction to stay or dismiss proceedings on the grounds of an abuse of the process. That is a power

which has existed for upwards of 150 years (see for example Grainger –v- Hill and some U.S. authorities have traced it back to

Blackstone’s Commentaries. The notion also received statutory recognition in Section 27 (5) of the Judicature Act (Ireland) 1877 and

it is reflected in Order 19, Rule 28 of the Rules of the Superior Courts.

“Abusing the process of the court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous,

vexatious, or oppressive, the ordinary remedy in such a case being to apply to strike out the pleadings or stay the

proceedings, or to prevent further proceedings being taken without leave. Beyond this the court has jurisdiction to punish

abuse of process by committal or attachment as a contempt. Where the court, by exercising its statutory powers, its powers

under rules of court, or its inherent jurisdiction to stay frivolous or vexatious proceedings, can give an adequate remedy, it will

not order a committal. On the other hand, where the irregularity amounts to an offence against justice, extending its

influence beyond the parties to the action, it is contempt of court and punishable accordingly”. (Halsbury, 3rd Edition, 16).

The term has also been applied to cases where the proceedings are in proper form but in substance have been brought for a purpose

which is ulterior and extraneous to them and to circumstances where a party has blatantly and persistently refused to comply with an

order of the court (e.g. to answer interrogatories).

While I do not consider it necessary for present purposes (where these observations are necessarily obiter) to review the extensive

case law on the application of the term abuse of process, the Irish, English and United States authorities which have been referred to

in the cases I have cited would appear to conform to the manner of its application as indicated in Halsbury and outlined above. It

appears to be a notion applied where the whole of an action ought to come to an end and is preventive of an abuse of process rather

than punitive. That is the present state of the law if I understand it.

So far as I can ascertain it is a term which is applied to stay or dismiss proceeding before trial to prevent an action proceeding any

further and has not been applied at the conclusion of a trial, apart from the exceptional case where an alleged abuse of process is

the cause of action itself. A party which suffers harm caused by the abuse of process may have a cause of action against the other

party for damages for that harm. (see Speed Seal Products Ltd –v- Paddington and Anor [1986] 1 A.E.R. 91, which also refers to the

American Second Restatement of the Law of Tort (1977) to that effect, and the observations of Denning M.R. in Goldsmith –v-

Sperrings Ltd [1977] 2AER 566 at 574 in an application to stay proceedings before trial.) That arises where harm is proved to have

been done by a tortious wrongdoer, the person who has abused the process of the court, and he or she is liable to pay damages

measured by reference to the harm done to the injured party. That is quite different from denying damages to a plaintiff without

reference to any, if any, harm or loss sustained by a defendant (thus relieving the latter of his or her legal liability) in a case where

part of the plaintiff’s claim is rejected because of deliberate exaggeration while part is found to have been proved. In the present

case there has been no claim (or counterclaim) for such harm or loss.

So far as I am aware there has been no case in this jurisdiction, England or the Unites States where proceedings have been stayed or

dismissed for an abuse of the process of the court or imposing on another party where the abuse is alleged to comprise of deliberate

exaggerations or falsehoods by the plaintiff in the course of his or her evidence at a trial where the plaintiff has otherwise been held

to have established that at least part of his or her claim was valid and entitled to some award of damages.

In such circumstances it is the judgment of the court which has governed the issues and the Plaintiff loses any claim based on such

evidence. Of course where there is cogent or tangible evidence of fraud the court may in circumstances where it considers it proper

to do so direct that the relevant papers in the case be referred to the Director of Public Prosecutions. A Plaintiff may also be

penalised in costs since the court enjoys a wide discretion having regard to wanton and substantial waste of the court’s time.

I hesitate for present purposes to consider whether the term ‘abuse of process’ should be qualified as a term of art since ‘abuse’ is

capable of such a wide meaning and may take many forms. In an appropriate case it may fall to be decided whether it is inherent in

the jurisdiction of the court to treat false evidence at a trial as coming within the meaning of that term (and in one sense, a single

falsehood could fall within the notion of abuse). If that were to be so it would also be necessary to decide the form of order which

could be made by a court and the criteria for its application and whether the question of an abuse of process would fall to be tried as

a discrete issue in each case where it was raised. Any right of a party to sue for damage suffered as a result of an abuse of process

would also have to be taken into account. These are just some of the issues which it seems to me would have to be addressed

should the court, in an appropriate case, have to decide whether the term abuse of process is capable of being applied to cases of

such a nature.

However, as I have already indicated this is not a question which could be said to arise in this case having regard to the evidence

and findings of the learned High Court judge at the hearing, which I now propose to consider.

Evidence at the Trial

Since the trial involved an assessment of damages only the issues inevitably focused on the extent of the Respondent’s injuries and

his claim for loss of earnings, particularly loss of earnings in the future.

The Injuries:-

The case generally made by the Respondent was that he had suffered injuries, of a soft tissue nature, to his back and neck and had

also sustained an injury to his right knee. He was self-employed and had a motor garage business in which he repaired and serviced

cars. He did not give up work but he was affected in his capacity to work by pain and stiffness in his neck, pins and needles in his

arms, difficulty at times in moving his injured leg. His back would “lock-up” and was a regular source of pain and limitation in

movement. He complained that he could not develop his business as he had intended because he had to restrict the volume of work

and the number of customers as he could not get through the same amount of work in a day as he could prior to the accident. He

had initially seen his G.P. and over the ensuing two or three years he frequently attended for physiotherapy sessions. He was referred

to his orthopaedic consultant, Dr. McNamee in March, 1997, who was the only medical witness called at the trial.

Whilst discrete quotations from the evidence of the trial are of limited value, since the evidence of the Respondent, in direct and

cross-examination, as well as that of his doctor must be considered as a whole, the following extract from the first day of the trial is

indicative of his complaints. As regards the injury to his neck he stated “I was, for the first year to eighteen months there was very

little change – I was stiff, not everyday but nearly everyday, depending on what I had done, depending on what type of work that I

had completed during the week. I was completing less work, and what I was finding was, I was doing longer hours to complete the

same amount of work that I would have been completing in less hours … I would take breaks during the day on a regular basis. …to

try and limber up. If you are working on vehicles or working on any type of mechanical equipment or any type of trade, you are

constantly bending and moving, and that bending and moving seemed to be creating, agitating the pain to be worse. So, if I kind of

took it easy and just walked straight and kept my upper body straight, I would free-up and the pain would abate.” The evidence was

somewhat similar with regard to his back. This was a source of continuous pain and discomfort. He could do his work but he could not

have the same throughput of work. He would have good days and bad days but would never know which day was going to be a bad

day. He described graphically how on one evening in December, 1996 his back had “locked-up” as a result of which he was forced to

lie on the floor of his workshop for sometime up to five hours. By the end of the Year 2000 his business was running into difficulties

and in order to avoid the pain and stress which his work was placing on him, he gave up his business and obtained a job with a firm

which provides instructors for FÁS sponsored training schemes. He took this job because it was physically less taxing. He instructs

young people attending the training centre with a view to training them in motor mechanics. This also involved teaching them

rudimentary mathematics and English. At the time of the trial he still suffered from a nagging discomfort in his back and neck and

could get serious episodes of discomfort from time to time.

It is evident from a perusal of the transcript that the Respondent focused almost exclusively on the negative aspects of the effects

which he claimed the injuries had on his lifestyle, in particular his working capacity. There was certainly nothing in his direct evidence

to lead one to believe that he might voluntarily become involved in heavy work associated with the building of a house. That he had

done so emerged in cross-examination. In 2000 he was having a house built on a plot adjacent to the one in which he was residing. In

a pointed cross-examination by counsel for the Appellants he conceded with evident reluctance that although he had engaged a

contractor he had carried out a significant amount of the work on the house himself. This included collecting a significant quantity of

heavy bags of cement from a builder’s supplier, lifting them into the van at the suppliers and lifting them out again at the building site.

For the purpose of mixing concrete he lifted them onto the ground, split them with a shovel and emptied them into a cement mixer. He

conceded that he did a certain amount of roofing work, some of the electrical wiring and also some of the plumbing. He purchased

timber, cut it to the requisite length and laid wooden floors. All this work was over a period of three years. He also dug the garden,

spread the earth and laid it out generally. It was put to him that he was capable of doing all the heavy, physical work of a builder’s

labourer which the Respondent had to acknowledge but he claimed that it was not work which he could not have done by way of

occupation on a full-time regular basis.

This evidence was brought out by counsel for the Appellants in cross-examination before the introduction, by a witness on behalf of

the Appellants, of evidence on video showing the Respondent transporting timber, sand and cement bags in various vehicles on

different dates. He was seen unloading sand and cement and in particular being involved in the process of lifting cement bags and

mixing cement in a concrete mixer throughout a particular afternoon.

As regards this evidence, counsel for the Respondent made the submission that the Respondents had admitted to all of these

activities when asked about them and before any video evidence was shown. The comment from defence counsel was that he only

did so in cross-examination and at a point when the Respondent might have assumed that the Defendants had specific evidence as

regards these activities.

There was also a point in the evidence when the Respondent was being cross-examined as to the vehicles which he had at his home.

On this aspect of his evidence he was manifestly evasive. This question arose because the Respondent had given evidence that he

had continued to have difficulty in driving long distances particularly when he was required to use the clutch constantly in city traffic.

In particular as furnished he had claimed that he had bought a motor cycle to alleviate his physical condition. In responding to

questions concerning the vehicles which he owned or had on his property the Respondent his evasiveness was manifest and the

learned trial judge so observed.

He also conceded that he had not consulted any doctor concerning his decision to move jobs due to his alleged physical condition and

it transpired in the evidence of his orthopaedic surgeon, Dr. Paul McNamee, that he made little or no complaint to him concerning his

difficulties in carrying out his work.

As regards the evidence of Dr. McNamee, he first saw the Respondent in connection with his injuries in March, 1997 and subsequently

in June, 1997 and November, 1999. Dr McNamee gave evidence of the various complaints made to him concerning the problems with

his neck, back and right knee. He also noted the complaints of the Respondent in relation to pins and needles in both arms. In general

terms Dr. McNamee’s evidence was that he did not find any neurological deficit and apart from recommending that the Respondent

should continue with physiotherapy considered and eventually did recommend that he see a Mr. Keavney, a pain specialist. In his

initial assessment he had expressed the view that the Respondent’s symptoms would gradually clear up over a period of six months or

so. He agreed that he had referred the Plaintiff to Mr Keavney because he could find no physical origin as such for his pain. He

pointed out that the absence of such objective findings is often the case. He agreed that he had to depend on the Respondent in

large measure as to the nature of his complaints but also reached conclusions from his own observations of the Respondent. He was

asked by counsel for the Defendant whether he was of the view that the Respondent was being genuine about limitations in the

movement of his neck and he replied in the affirmative. When asked “Did he strike you as being a genuine sort of man in his

complaints?” He responded in the affirmative. He agreed that he had not discussed the Respondent’s fitness for work with him at any

stage and he had no note of any complaint from him or being unfit for work. He assumed, however, that the Respondent would have

difficulty in “managing to do whatever he was doing.”

At one point in his evidence Dr. McNamee explained that while in cases of this nature, where there are subjective complaints of a

patient, one is dependant on the co-operation of the patient when he or she is asked to demonstrate the extent of the limitation of

movement of a neck or limb. He felt, however, that he was in a position to make his own clinical observations including the movement

of the neck or limb of a patient generally while in his consulting room.

No medical evidence was called on behalf of the Appellants. Undoubtedly Dr McNamee was in large measure dependant on the

Respondent for a reliable account of his complaints. Whatever may be said about Dr. McNamee’s evidence including his dependence

on the reliability of the Respondent as regards his subjective complaints, his professional opinion did provide some measure of support

for the injuries which the Respondent claims to have sustained. How far that measure of support went was in the first instance

essentially a matter for the trial judge to determine.

Future Loss of Earnings:-

It was also submitted on behalf of the Appellants that the claims made by the Respondent in the pleadings concerning his loss of

earnings and in particular future loss of earnings should also have been found by the learned trial judge as constituting deliberate

exaggerations or falsehoods.

It is not in issue that at the time when the statement of claim was delivered in September, 1999 there was a claim for loss of

earnings which was described as “unascertained and continuing”. In September, 2000 the Plaintiff’s solicitors furnished particulars

stating that the Plaintiff was self-employed and that a report was awaited from his accountant, Mr Frank Corr. This was subsequently

furnished. Mr Corr was not called at the trial although it is clear from the transcripts that his report was before the learned trial judge.

Although it would appear that this report averted to a potential loss of income in the order of €10,000 per annum up to the closure of

the Respondent’s business, the accountant indicated that the business was terminated due to financial difficulties without any

reference to the Respondent’s physical inability to do the work which the business involved. In any case it is not in dispute that in

2001 the Respondent’s solicitors wrote to the Appellants’ solicitors conveying that the claim for continuing loss of earnings was being

maintained. Finally, in 2002 the Respondent’s solicitors informed the Appellants’ in a letter dated 10th June, 2002 that due to the

difficulty which the Respondent had in continuing his work, particularly at the level at which he was capable of working prior to the

accident, there was a “consequent loss of business and earnings, as projected in the letter of 1st December, from Frank Corr,

Accountant, already furnished herewith.” At the trial the learned trial judge observed that this amounted to a claim for continuing and

future loss of earnings.

At the trial the Respondent’s claim for future loss of earnings was abandoned in the course of his direct evidence and his claim under

this heading expressly confined to the period dating from the date of the accident to the date on which he ceased running his

business and got alternative employment towards the end of 2000. Counsel for the Respondent also indicated at that point that no

specific sum was being claimed for loss of earnings as special damages but it was being put forward as part of the Respondent’s claim

under general damages.

The Appellants submitted that having regard the kind of heavy labouring work which the video demonstrated the Respondent was

capable of doing and which he admitted to being capable of doing, and the manner in which he put forward until the hearing a claim

for future loss of earnings in his pleadings, that the trial judge ought to have treated the Respondent’s claim for loss of earnings as a

deliberate exaggeration or false and an abuse of the process of the courts.

Conclusions

In the first part of this appeal the court is being asked to review the findings made by the learned trial judge on the credibility of the

Respondent and the damages awarded. The role of this court in appeals of this nature were set out by McCarthy, J. in the well known

case of Hay –v- O’Grady [1192] I.R. 210 and which has been frequently cited with approval in the judgments of this court. McCarthy,

J. stated: -

“The role of this court, in my view, may be stated as follows: -

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the

substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid

pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings,

however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to

draw inferences of fact. (See the judgment of Holmes L.J. in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v.Macken

[1899] 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I

do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead

to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to

substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference

has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as

good a position as the trial judge.

4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference –

in a case of this kind, was there negligence? I leave aside the question of any special circumstances applying as a test of

negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the

inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of

the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the

individual charged was erroneous, the order will be varied accordingly.

5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of

primary fact, the inferences to be drawn, and the conclusion that follows.”

The findings of the learned High Court Judge were recited at the outset of this judgment and included his conclusion that although

the Respondent grossly exaggerated aspects of his claim, he had not told deliberate lies. It is pre-eminently the task of the trial

judge, having had the opportunity of hearing and reviewing the relevant witnesses in person, to determine their reliability and

credibility as witnesses and the extent to which a Plaintiff, on foot of that evidence, has established his or her case or the balance of

probability.

There were certainly grounds which entitled counsel for the Appellants to invite the trial judge to conclude that there was deliberate

exaggeration and to reject the entire of the Respondent’s evidence as being wholly unreliable. However, it was for the trial judge to

evaluate the evidence as a whole and to determine the extent to which the evidence of the Respondent could be accepted as

credible and establishing certain facts notwithstanding any exaggerations which he may have made. The determination of such an

issue has always being part and parcel of the trial judge’s task. The difficulties posed in this case are not novel. I would recall just for

illustrative purposes a finding of Bowen L.J. in Lawrence –v- Norreys [1888] 39 Ch. V 213 at 236 “I know by long experience that

people persuade themselves that they or their friends have good cases in law when the cases are shadowy and hopeless. I do not

say a word against his honour or his good faith but I am satisfied that no reasonable man could on the materials before us consider

this action anything but groundless.” The fact is that there are parties to litigation, Plaintiffs and Defendants, who, preoccupied with

their own predilections perceive facts and circumstances from their own subjective viewpoint which leads them to give an account of

those facts and circumstances that does not accord with other objective evidence. That does not mean that they are necessarily

dishonest. The essence of the role of the trial judge is to take these factors into account and decide the case on the basis of the

facts which he finds proven having regard to all the evidence.

That there was evidence before the learned High Court Judge upon which he could find that the Respondent had sustained some

injuries was acknowledged by c counsel for the Appellants in his submissions that the close of the case when he stated “… and that

at the very most, My Lord, it comes down to a matter of moderate general damages …”

The trial judge gave four specific reasons why he concluded that the Respondent had sustained some injuries for which he was

entitled to be compensated. Among them was the fact that Dr. O’Keefe considered that the Respondent was a genuine person. As I

have previously indicated, it is clear that Dr. McNamee in his evidence gave a measure of support and corroboration to the

Respondent’s claim that he had suffered injuries as a result of the Appellants’ bus crashing into his car. It was a matter for the trial

judge to decide the extent to which Dr. O’Keefe supported the Respondent’s claim and, having had the advantage of observing the

demeanour of the Respondent when giving evidence, to determine the extent to which the Respondent had credibly established his

case. In my view the learned trial judge was entitled to make the findings which he did. Having regard to the principles in Hay –v-

O’Grady it is not open to this court to set them aside.

Accordingly, in these circumstances I do not consider that the question of the alleged abuse of process arises. It also follows that

the submission of the Appellants’ that none of the Respondent’s evidence should be given credibility in the light of the finding of the

trial judge as to the exaggerated elements of his evidence must fail.

Damages

The learned trial judge made no award for general damages in the future nor for any loss of income. In my view the moderate award

of €15,000 for general damages is entirely consistent and proportionate to the findings of fact made by the learned trial judge. The

sum of €5,431 awarded as special damage relate to proven items of loss sustained by the Plaintiff.

For the foregoing reasons I would dismiss the first part of the Appellants’ appeal.

Costs

The High Court awarded costs to the Respondent on the Circuit Court scale having regard to the level of damages awarded.

The Appellants submit the learned High Court judge erred in failing to accede to their submission that costs should be awarded on the

basis of Section 17 (5) of the Courts of Justice Act 1981 as amended by the Courts Act, 1991. Section 14 of the 1991 Act introduced

a new Section 17, subsection 5 which provides as follows: -

“(5) ( a ) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (not being an appeal) and

the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the judge

concerned may, if in all the circumstances he thinks it appropriate to do so, make an order for the payment to the defendant

or respondent in the proceedings by the plaintiff or applicant of an amount not exceeding whichever of the following the judge

considers appropriate:

(i) the amount, measured by the judge, of the additional costs as between party and party incurred in the proceedings

by the defendant or respondent by reason of the fact that the proceedings were not commenced and determined in the

said lowest court, or

(ii) an amount equal to the difference between—

(I) the amount of the costs as between party and party incurred in the proceedings by the defendant or

respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the

Circuit Court, the appropriate county registrar, and

(II) the amount of the costs as between party and party incurred in the proceedings by the defendant or

respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the

Circuit Court, the appropriate county registrar on a scale that he considers would have been appropriate if the

proceedings had been heard and determined in the said lowest court.

( b ) A person who has been awarded costs under paragraph (a) of this subsection may, without prejudice to his right to

recover the costs from the person against whom they were awarded, set off the whole or part thereof against any costs in

the proceedings concerned awarded to the latter person against the first-mentioned person.

(6) In this section 'relief' includes damages.".

The Appellants submit they should have received the benefit of an order pursuant to subsection 5 having regard to want of credibility

of the Plaintiff’s evidence, the level of general damages awarded to him and the fact that his claim for loss of earnings to date of trial

and in the future had wholly failed.

In ruling against the Appellant’s submission, the learned High Court judge stated: -

“I think the only reason why I would exercise my discretion against the Plaintiff would be if I were satisfied that the claim for future

loss or the claim for loss of earnings was a fraudulent one. As I have indicated, I think it was a misguided one, and I do not think he

is entitled to succeed in it, but I am not convinced that it was fraudulent, … I think Mr O’Connor was a misguided but honest person,

…” The trial judge went onto repeat that as regards the claim for loss of earnings that this had been brought because of the Plaintiffs

own perception that the financial difficulties experienced by his business had been due to an ability on his part to run the business as

he would otherwise have been able to but for his accident. The learned trial judge’s attention had been drawn to the judgment of

McCracken, J. in Mangan –v- Independent Newspapers (Ireland) Ltd (unreported, Supreme Court, 31st January, 2003) which was an

action for defamation in which the plaintiff was awarded damages within the jurisdiction of the circuit court. McCracken, J. decided

that having regard to the nature of a defamation action and the particular circumstances of the case that Section17 (5) should not

be applied. He differentiated that case from an action for a liquidated sum or a claim for general damages in a negligence action in

stating “In those cases, the plaintiff’s legal advisors in deciding in which court to initiate the claim should be able to estimate within

reasonable parameters the probable level of damages should the plaintiff succeed.” I do not consider that that decision has any

application to the circumstances of this case.

It seems to me that the only basis on which the learned trial judge refused to apply the subsection was the absence of fraud on the

part of the Plaintiff. I am unable to interpret his ruling as giving any or sufficient weight, when exercising his discretion, to the fact

that the Plaintiff made a very substantial claim for loss of earnings continuing in the future which he maintained up to the morning of

the hearing and only abandoned in the course of his direct evidence, the fact that this claim was rejected in its entirety, the grounds

upon which it was rejected, and that the award which he received as a consequence was well below the level of the jurisdiction of

the circuit court.

While a finding that portion of a Plaintiff’s claim was dishonest or fraudulent may be factors in exercising the court’s discretion when

considering whether to apply subsection 5, it is quite evident that the application of the section in the particular circumstances of a

case is not in any sense dependant on the presence of such factors. The section makes no specific reference to them.

The Courts Act 1991, which amended the 1981 by substituting the new Section 17, is in an act which increased the jurisdiction of the

Circuit Court from €15,000 to €30,000 and the amending section is a provision which is expressed to be “Limitation on amount of

plaintiff’s costs in certain proceedings.”

The relevant provisions are part of a statutory scheme whereby claims may be brought in different courts according to the level of

their jurisdiction to give the relief sought by a plaintiff. It is clear that among the policy reasons for such provisions is that they

facilitate the efficient administration of justice, are of convenience to all the parties in bringing their cases, where appropriate, before

courts of local and limited jurisdiction. In particular, in the present context, it will usually mean that lower costs are incurred by both

the plaintiff and the defendant than if the proceedings had been brought to the higher court.

It is clearly in the public interest that claims are in principle brought before the lowest court having jurisdiction to hear and determine

the claim with a view to the proper and efficient administration of justice and for the purpose of minimising the cost of litigation

generally and in particular for the parties. There is therefore an onus on a Plaintiff to bring the proceedings before the court having

the appropriate jurisdiction.

In my view, when the order made by court in favour of a plaintiff falls well within the jurisdiction of a court lower than that making the

award it is incumbent on the trial judge to have specific regard to the nature of the claim and all the reasons for which the plaintiff’s

claim fell within the lower jurisdiction or as the section puts it, all the circumstances of the case. An unsuccessful defendant should

not be wantonly burdened with the costs of defending a claim in the higher court when it could reasonably have been brought in the

lower court.

Since, in my view, the learned High Court judge did not take into account all the relevant circumstances of this case in making his

decision whether or not to apply subsection 5 it was not a valid exercise of his discretion pursuant to the section. It therefore falls

for this court, on appeal, to exercise its discretion.

The Respondent made a claim for substantial loss of earnings continuing into the future by way of special damage. He abandoned the

claim for future loss of earnings on the morning of the hearing and confined his claim for past loss of earnings to a much more general

claim under the head of general damages. There is no reason why this significantly reduced approach to the claim for loss of earnings

could not have been adopted at a much earlier stage. There is no evidence that he made any complaint to Dr. McNamee concerning

his ability to work and on his own admission he did not raise the issue of changing jobs due to his injuries with him.

In any event the claim for loss of earnings was rejected in its entirety, the trial judge having found that there was in this case “gross

exaggeration” and that “… his alleged on-going problems are a figment of his imagination …”. In these particular circumstances I do

not see why the Defendants should have to bear the burden of the extra costs incurred by virtue of the proceedings having being

brought in the High Court. I would not wish to imply that simply because a trial judge takes a less serious view of a plaintiff’s injuries

and the award falls somewhat below the jurisdiction of the trial court that that in itself would be a ground for making an order

pursuant to

Section 17 (5), even if it were to be argued that in some very broad or loose sense

the plaintiff must be deemed to have overstated or exaggerated his or her complaints. It is in the nature of things that an injured

party may tend to take a more serious view of his or her injuries than a trial judge and that Defendants tend in the opposite direction.

There must also be a margin of appreciation allowed as to the level of damages which might be awarded in each particular case. That

is why such issues come to be tried by an independent judge. In this case the situation is wholly different aggravated as it is by the

specific findings of the trial judge to which I have referred. Even though the Respondent may be considered genuine and honest in his

approach the fact that the claim was brought in the High Court on the basis of his gross exaggeration and imagined on-going

problems must have the consequence, in my view, that he bear the extra costs incurred by the Appellants in defending the

proceedings in the High Court rather than in the Circuit Court.

Accordingly, I am of the view that there should be an order, varying that of the High Court, for the payment to the Appellants of an

amount equal to the difference between the costs referred to in paragraph (I) and (II) of Section 17(5)(a)(ii).

Otherwise I would disallow the appeal as regards the issues related to damages.