High Court dismisses plaintiff's motion to fix discount rate tax inclusion as a preliminary issue in medical negligence case.

THE HIGH COURT

[2025] IEHC 624

Record No. 2023 4334 P

BETWEEN

OONAGH CAHILL (A MINOR)

SUING BY HER FATHER AND NEXT FRIEND IAN CAHILL

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

EX TEMPORE JUDGMENT delivered by Mr. Justice Sean Gillane on 13 November 2025

Introduction

1. This is a medical negligence case where the plaintiff (a minor) is applying to have a question of law adjudicated on, by this Court, as a preliminary issue.

2. The plaintiff is an infant with a date of birth of the 23rd of January 2020.

3. The defendant, a body established by statute, was at all material times the operator of St. Luke’s General Hospital, Kilkenny.

4. The plaintiff is claiming damages for personal injury suffered as a result of the negligence and breach of duty of the defendant in causing, allowing and/or permitting delay to occur prior to a diagnosis of intracranial pathology, or hydrocephalus.

5. It is claimed that the plaintiff presented to hospital with relevant symptoms in the very early days of her life, and that the delay in diagnosis resulted in the progression of the intracranial pathology to the extent that she has suffered severe brain injury and damage that has given rise to major impairments, disabilities and problems that will affect the plaintiff for the rest of her life.

6. I am told that a trial date was fixed for the proceedings on the 11th of April 2025.

7. By notice of motion dated the 3rd of July 2025, the plaintiff seeks an order to have a question of law adjudicated upon as a preliminary issue pursuant to Order 25, rule 1 of the Rules of the Superior Courts, Order 34, rule 2 of the Rules of the Superior Courts or the inherent jurisdiction of this Court.

8. The question is formulated in the following terms: “Should the factors accounted for in determining the adjustment rate(s) (commonly called the personal injury discount rate(s)) to be applied for the purpose of calculating multipliers to be used for the purpose of calculating lump sum damages for future expense/loss streams (i.e. capitalising future expense/ loss streams to present value) in a personal injuries action include taxes and duties that will be payable on income earned on such damages (from investment, placement, or other use of the damages) or/and on the principal sum of such damages that is awarded or otherwise recovered?” (“The preliminary issue.”)

Principles

9. Order 25 of the Rules of the Superior Courts provides: “1. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

2. If, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the Court may thereupon dismiss the action or make such other order therein as may be just.”

10. Order 34 of the Rules of the Superior Courts provides: “1. The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.

2. If it appear to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

3. Every special case shall be printed by the plaintiff and signed by the several parties or their counsel or solicitor, and shall be filed by the plaintiff. Printed copies for the use of the Court shall be delivered by the plaintiff.

4. No special case in any cause or matter to which a child, or a relevant person (within the meaning of section 2(1) of the Assisted Decision-Making (Capacity) Act 2015), is a party, shall be set down for argument without leave of the Court, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such child or such relevant person, are true.

5. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the Form No 26 in Appendix C, and in any case in which rule 4 applies, producing a copy of the order giving leave to enter the same for argument.

6. The parties to a special case may, if they think fit, enter into an agreement in writing, that, on the judgment of the Court being given in the affirmative or negative of the questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, either with or without costs of the cause or matter; and the judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal.

7. This Order shall apply to every special case stated in a cause or matter, or in any proceeding incidental thereto, and to any special case stated for the opinion of the Court in pursuance of any statute relating to the Revenue so far as the same is not inconsistent with the provisions of such statute.

8. Any special case may hereafter be stated for the same purposes as provided by the Chancery (Ireland) Act 1867 (30 & 31 Vic. c. 44) and the provisions of the said Act shall apply to such case, save in so far as the same may be inconsistent with this Order.”

11. While the written submissions filed on behalf of the plaintiff primarily focus on questions of constitutional rights and rights under the European Convention on Human Rights, I am satisfied that the starting point for consideration of the question of the appropriateness of setting down a preliminary issue is Campion v. South Tipperary County Council [2015] 1 I.R. 716.

12. The court identified the “unitary trial” as the starting point or default position. In examining the relationship between Order 25 and Order 34, McKechnie J. said at paragraph 28: “Whatever may be the precise contours of either or both O. 25(1) and O. 34(2) of Rules of the Superior Courts, it is clear that each has a common purpose namely, to save time and cost, when the preliminary process is compared with any other suggested method of hearing, including a full trial of the issues raised. (Duffy v. News Group Newspapers Limited (No.2) [1994] 3 I.R. 63, and Croke v. Waterford Crystal Limited (Unreported, High Court, Smyth J., 26th June 2003)). Convenience will also be a consideration and whilst there is no express reference to such in O. 25, as there is in O. 34, r.2, nonetheless this matter has equal application to both rules. In this regard it is of interest to note what O'Higgins C.J. had to say on this particular point in Tara Mines v. Minister for Industry and Commerce [1975] 1 I.R. 242 where at p. 256 he said:- ‘In addition, it must appear to the court to be convenient to try such question of law before any evidence is given. This will involve a consideration of the effect on other issues in the case and whether its resolution will reduce these significantly, or shorten the hearing. Convenience in this respect must also be considered in the light of what appears fair, proper and just in the circumstances.’” (Emphasis added.)

13. At paragraph 35, McKechnie J. summarised the legal position in respect of the exercise of the court’s discretion in an application of this sort in the following way: “There cannot exist any dispute about the material facts as asserted by the relevant party: such can be agreed by the moving party or accepted by him or her, solely for the purposes of the application.

There must exist a question of law which is discrete and which can be distilled from the factual matrix as presented.

There must result from such a process a saving of time and cost, when the same is contrasted with any other suggested method by which the issues may be disposed of: in default with a unitary trial of the entire action. In the absence of admissions, appropriate evidence will usually be necessary in this regard: impressions of what might or might not be, will not be sufficient.

The greater the impact which a decision on the preliminary issue(s) is likely to have on the entire case, the stronger will be the argument for making the requested order.

Conversely if irrespective of the court’s decision on that issue(s), there should remain for determination a number of other substantial issues or issue(s) of a substantial nature, the less convincing will be the argument for making such an order.

Exceptionally however, even if the follow on impact will not dispose of any other issue, the process may still be appropriate where the subject issue is substantial in its own right and where its determination will clearly benefit the action in an overall sense.

As an alternative to such a process in such circumstances, some other method or mode of proceeding, such as a modular trial may be more appropriate.

It must be ‘convenient’ to make such an order: at one level this consideration of itself, can be said to incorporate all other factors herein mentioned, but for the purposes of clarity it is I think more helpful to retain the traditional separation of such matters.

‘Convenience’ therefore should be understood as meaning that the process will enhance in an overall way the most efficient, timely and cost effective method of disposing of the entire litigation.

The making of such an order must be consistent with the overall justice of the case, including of course fair procedures for all parties.

The court at all times retains a discretion whether or not to make such an order: when so deciding it should exercise caution so as to make sure that if an order is made, it will meet the purposes intended by it; finally Subject to giving due and proper weight to the decision of the trial judge, the appellate court can substitute its own views for those of the High Court where it thinks it is both necessary and appropriate to so do.”

14. In considering this matter, I have also had regard to the application of those principles in Vico Properties Limited v. Bank of Scotland Plc [2025] IEHC 401. One of the issues in that case concerned whether the plaintiff’s claim, or a part of it, was statute-barred.

15. Even though Bolger J. recognised that, ordinarily, issues pertaining to the statute of limitations would be a classic example of the type of point which could be decided on a preliminary basis, she nonetheless refused to exercise her discretion to order the trial of a preliminary issue, saying at paragraphs 25-26 of her judgment: “This application has insufficient agreement on the factual matrix on which the proposed preliminary issues are based to be suitable for the preliminary trial that is sought, primarily arising from the lack of agreement on the applicable English law but also because of the plaintiff's intention to seek to plead fraudulent concealment pursuant to s. 71 of the Statute of Limitations. Even if the trial of preliminary issues that is sought were to be allowed, it would not deal with all issues in the case.

I refuse this application and direct that all matters are to be dealt with by way of the default position of a unitary trial.”

16. The case before me is undoubtedly a tragic one. Even a cursory examination of the papers also reveals it to be a complex one, which will require a considerable amount of expert evidence.

17. The following are what I consider to be the salient issues in relation to the exercise of my discretion.

18. While there are some limited admissions in the amended defence, it remains the position that there is a full defence on causation and liability. There are also some limited factual admissions. I note that there is an outstanding motion in relation to genetic testing that has yet to be resolved. I am informed that this motion will also be contested.

19. In this case, not only is the evidence which underpins the legal issue not agreed; the parties do not even agree as to whether evidence is required at all for the resolution of the question.

20. The plaintiff says that no evidence is required in order to determine the matter. The defendant, however, says that evidence is required, and is not agreed, and in that regard points to a number of witnesses listed in the plaintiff’s disclosure schedule. These include unnamed witnesses from the Office of Wards of Court and from ADM system to address requirements and costs, unless agreed. The plaintiff’s schedule of expert witnesses also refers to an unnamed economist and an actuary from whom reports are awaited.

21. It does not seem possible to me to attempt to resolve a legal question absent an accepted underlying factual matrix, even on a pro tem basis, which appears to be completely absent here.

22. Another feature of this case is that the resolution of the question posed would not have a substantial impact on the balance of the case. It is manifest from the arguments before me that many substantial issues would still remain for determination.

23. Further in this regard, there has been no attempt to identify what would be saved in time and cost if the preliminary issue were to be set down now. It is unclear as to what witnesses, if any, could be disposed of for the trial of the action, and it has not been established that the trial would be shortened by any measurable duration.

24. Moreover, it is not at all clear to me how long the preliminary issue itself would take to hear, which is a further concern in the context of a complicated case for which a trial date has already been set. Rather than shortening the length of the case or narrowing the issues, my sense of the matter, on the basis of the arguments before me, is that separating this issue from the trial could in fact lengthen the case.

25. I am also influenced by the fact that the issue in relation to the determination of the adjustment rate to be applied is a damages-related question. It is not a question which, on any view, could bring an end to the proceedings if decided in a particular way.

26. More importantly, it is a question that may never arise in the case at all.

27. If this issue is determined in advance and the issues relating to causation and liability are subsequently resolved in favour of the defendant, then court resources will in fact have been wasted.

28. Even if the question does arise, it is more properly positioned at the end of the case in my view. Having regard to the serious issues that arise in relation to liability and causation, it does not seem readily apparent to me that carving out this issue for a preliminary hearing makes any real practical sense.

29. I note that the question posed in the notice of motion is not in the form of an issue of law which is itself pleaded in the case.

30. The question posed is unclear as to what the Court is being asked to determine. Is the Court simply to decide whether the factors identified include the taxes and duties payable? Or is the Court to seek to determine an actual rate to be applied in this case?

31. It does not appear to me that setting down the preliminary issue as identified for pretrial hearing would impact the overall proceedings in any of the ways contemplated by McKechnie J. in Campion. There appears to be no identifiable cost saving or efficiency.

32. For these reasons, I am refusing the relief sought in the notice of motion.