# Judge highlights injustice of defendants having to pay legal costs in failed personal injury cases



## Brendan Burgess (21 Jul 2021)

Judge highlights ‘injustice’ of legal costs
					

A judge in the High Court has commented on the injustice of individuals and organisations ending up having to pay legal costs in personal injuries cases that they win.




					www.independent.ie
				




_Mr Justice Twomey said there was an injustice when an impecunious plaintiff loses a case and costs are awarded against them. This was because there were very unlikely to be able to pay the costs.

He said there was an “inevitable injustice” for defendants who do not “buy off” what they believe to be unmerited claims.

“In the absence of financial disincentives for such plaintiffs (which also take account of the right of access to the courts), this ‘inevitable injustice’ means that there is an unlevel playing field”, he noted in a written judgment.

He said it is ‘win and no lose’ for plaintiffs with little or no money, while it is ‘lose-lose’ for defendants in such cases._

And we wonder why insurance premiums are so high!


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## elcato (21 Jul 2021)

I note he doesn't mention that if they can't pay, his legal team doesn't get paid. Why not give costs against and let his legals swing for the fee. That would put an end to these ads for personal injury claim solicitors I would have thought.


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## Brendan Burgess (21 Jul 2021)

Not sure what you mean.

The solicitors take these cases on a  no foal no fee basis. 
They expect the insurance company to cave in early and pay their legal fees and some token compensation to the plaintiff. 
They get their comeuppance when a judge is not taken in. 

But that is the risk they take. The companies cave in most of the time. 

Brendan


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## MrEarl (21 Jul 2021)

How about all parties waive their own fees, when a legitimate hardship case appears?

Let there be a sworn and verified financial declaration submitted, before the legal process begins, so everyone knows that they are working "pro bono", and then let's see how long the legal teams drag the case on for. 

Obviously, adequate provision could also be made for later recovery of fees, if the person's circumstances changed.


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## MrEarl (21 Jul 2021)

Something seperate would also need to be done, to help bring an end to false claims..


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## sharkattack (21 Jul 2021)

This whole area needs to be overhauled but too many vested interests on the merry go round.  Alan Shatter tried it and got no where and the Troika bailout guys got nowhere when they looked for changes.


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## Brendan Burgess (21 Jul 2021)

A few options: 

1) Limit the legal costs to 10% of the award.  Make it unprofitable for solicitors to drag it out and to take on cases on a no foal no fee basis. 

2) Require the plaintiff to lodge costs up front.  Their claim for costs would be limited to what they lodge.  If they lodge €5,000 they would not be able to claim more than €5,000 in costs if they win their claim. 

3) Have a preliminary summary hearing. And if the judge's initial opinion is that the case is unlikely to succeed, require a very substantial lodgement of costs up front. 

Brendan


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## LS400 (21 Jul 2021)

Brendan Burgess said:


> Justice Twomey said there was an injustice when an impecunious plaintiff loses a case and costs are awarded against them.


Proving how thin the line is between genius and insanity..


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## Purple (21 Jul 2021)

The mere fact that the judge used the word _impecunious _shows a level of pomposity and disconnect from normal people that is worrying. The logical conclusion that must be drawn from the Judges comments is that private companies or rich individuals should be funding public access to the justice system. That shows an even great disconnect from reality.  


Brendan Burgess said:


> 3) Have a preliminary summary hearing. And if the judge's initial opinion is that the case is unlikely to succeed, require a very substantial lodgement of costs up front.


I like that idea.


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## Steven Barrett (21 Jul 2021)

Brendan Burgess said:


> A few options:
> 
> 1) Limit the legal costs to 10% of the award.  Make it unprofitable for solicitors to drag it out and to take on cases on a no foal no fee basis.
> 
> ...


That would limit access to the courts for a lot of people who simply don't have that kind of spare cash...and there are lots of people who live pay cheque to pay cheque, even those in well paying jobs.

The solution starts with the courts themselves. If they stop awarding making such generous rewards for minor injuries. People getting €10k for a cut knee because they tripped over something in a shop. The judge should award them the price of a packet of plasters. If it is not seen as an way to make easy money, the amount of claims will be reduced.


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## sharkattack (21 Jul 2021)

A simple solution of having to publish in a centralised register the details of all claims in and out of court and their associated legal costs.   It would stop or at least help stop serial offenders.


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## Brendan Burgess (21 Jul 2021)

Steven Barrett said:


> If they stop awarding making such generous rewards for minor injuries. People getting €10k for a cut knee because they tripped over something in a shop. The judge should award them the price of a packet of plasters.



The new scheme will reduce such claims. 

Brendan


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## Brendan Burgess (21 Jul 2021)

Steven Barrett said:


> That would limit access to the courts for a lot of people who simply don't have that kind of spare cash...a



Then go for the preliminary hearing.  They can have a preliminary hearing with maximum costs of €1,000 and if the judge thinks it's not a genuine case, they then require a substantial up front  lodgement of costs. 

It's unfair to the rest of us to have to spend our money in defending against bogus claims. 

Brendan


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## Johnno75 (21 Jul 2021)

Why not have each side pay their own costs, regardless of outcome? Like in family law.

It would have a chilling effect on the amount of claims made as Solicitors would demand payment up front and only take cases where there was a good prospect of success and the costs would be deducted from the damages award.


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## Brendan Burgess (21 Jul 2021)

But many insurance companies would then drag out cases as long as possible so that the customer would give up.

That is a variation of my proposal to limit costs to 10% of the damages. 

You want to limit them to 0%. 

The problem is that insurance companies would drag out cases to deter claimants. 



Brendan


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## NoRegretsCoyote (22 Jul 2021)

Yesterday I read of a 55-year-old whose family got €375k when he died of lung injury related to his job.

You can find many cases of injuries to children with five-figure payouts. Here is one where a child got €35k for a scar received after tripping in a play centre.

is a 2.5cm scar worth as much as a tenth of a life? Judges seem to think so, and it makes very little sense to me.


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## Steven Barrett (22 Jul 2021)

NoRegretsCoyote said:


> Yesterday I read of a 55-year-old whose family got €375k when he died of lung injury related to his job.
> 
> You can find many cases of injuries to children with five-figure payouts. Here is* one where a child got €35k for a scar received after tripping in a play centre.*
> 
> is a 2.5cm scar worth as much as a tenth of a life? Judges seem to think so, and it makes very little sense to me.



This is exactly what I am talking about. Kids fall all the time. But if by a stroke of luck, you kids falls in a play centre, you can sue them and get €35k out of them.


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## Purple (22 Jul 2021)

Steven Barrett said:


> This is exactly what I am talking about. Kids fall all the time. But if by a stroke of luck, you kids falls in a play centre, you can sue them and get €35k out of them.


My daughter fell in a play centre when she was younger and knocked out a tooth. I asked to see where she fell and I couldn't identify anything that the play centre could have done to reduce the risk. In other words I couldn't see any sign of negligence, so I just took it as kids being kids. The manager said I was the first parent who didn't make a claim for an accident like that. It's crazy that any business should be held liable for that sort of accident.


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## Steven Barrett (22 Jul 2021)

Purple said:


> My daughter fell in a play centre when she was younger and knocked out a tooth. I asked to see where she fell and I couldn't identify anything that the play centre could have done to reduce the risk. In other words I couldn't see any sign of negligence, so I just took it as kids being kids. The manager said I was the first parent who didn't make a claim for an accident like that. It's crazy that any business should be held liable for an accident like that.


I know someone who tripped on one of those grids that they put around trees that are planted on pathways. They are pretty standard. Their first thought was to sue to look for compensation. I got into an argument with them that maybe they should have been paying attention to where they were walking rather than looking for money. Nothing came of it in the end, a solicitor probably told them there was nothing in it for them.


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## odyssey06 (22 Jul 2021)

Against that in my parent's estate in Dublin the council planted trees on narrow footpaths.
Now, the roots break up the footpaths creating trip hazards.
In autumn, as the leaves and crab apples from the trees fall to the ground, you can't see what you are walking on.
If someone slips in those circumstances I would consider the council negligent.


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## Purple (22 Jul 2021)

odyssey06 said:


> Against that in my parent's estate in Dublin the council planted trees on narrow footpaths.
> Now, the roots break up the footpaths creating trip hazards.
> In autumn, as the leaves and crab apples from the trees fall to the ground, you can't see what you are walking on.
> If someone slips in those circumstances I would consider the council negligent.


I wouldn't. If that was the case anyone who trips in a park or forest could make a claim against someone.


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## odyssey06 (22 Jul 2021)

Purple said:


> I wouldn't. If that was the case anyone who trips in a park or forest could make a claim against someone.


A footpath isn't a forest. It was a hazard they introduced into what should be a safe surface for walking on.


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## Purple (22 Jul 2021)

odyssey06 said:


> A footpath isn't a forest.


Agreed.
Residents should all keep the area outside their house clear of leaves etc. That way people can see if the path is cracked. Then if someone falls due to leaves they can sue the home owner in question.


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## Seagull (23 Jul 2021)

Purple said:


> Agreed.
> Residents should all keep the area outside their house clear of leaves etc. That way people can see if the path is cracked. Then if someone falls due to leaves they can sue the home owner in question.


Except the home owner wasn't responsible for planting the trees, so why should they become liable for maintaining the trees and tidying up around them? If the council decides to plant trees in the pavement, then they need to do the required maintenance


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## Seagull (23 Jul 2021)

The people who really can't afford litigation are those on a moderate income and with reasonable assets. Lose the case and have costs awarded against you, and your house is on the line. If you have no income and no assets, there's no risk to having costs awarded against you. You can pay it off at €5 a week for the next 50 years.
  There needs to be a situation where the judge can award costs against the legal counsel for taking on a ridiculous case.


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## Nermal (23 Jul 2021)

odyssey06 said:


> A footpath isn't a forest. It was a hazard they introduced into what should be a safe surface for walking on.



You know it's autumn, or winter, and so it's wet. You see the trees, you see the path covered in leaves. If you fall, it's your own damned fault.

Trying to pawn off your liability on the council will not result in them cleaning up the leaves; it will just result in the trees being cut down.

Your abrogation of your personal responsibility, and the repulsive whirlpool of greed in the courts that feeds on it, is the reason we can't have nice things.


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## odyssey06 (23 Jul 2021)

Nermal said:


> You know it's autumn, or winter, and so it's wet. You see the trees, you see the path covered in leaves. If you fall, it's your own damned fault.
> 
> Trying to pawn off your liability on the council will not result in them cleaning up the leaves; it will just result in the trees being cut down.
> 
> Your abrogation of your personal responsibility, and the repulsive whirlpool of greed in the courts that feeds on it, is the reason we can't have nice things.


It was the council who abrogated their responsibility.
People have a reasonable expectation that a footpath is maintained to the standard of you know a footpath and not a dirt track.
It was the council who put the trees there and caused the hazard, it is their responsibility to follow up on that and their liability when they do not.

There is a whirlpool of greed alright.
There are also legitimate claims when other parties are negligent and need  to be held to account.


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## Purple (26 Jul 2021)

Seagull said:


> Except the home owner wasn't responsible for planting the trees, so why should they become liable for maintaining the trees and tidying up around them? If the council decides to plant trees in the pavement, then they need to do the required maintenance


As was pointed out the end result will be the council cutting down the trees. If that happens it's 100% the fault of the people who want to enjoy the trees outside their homes which were planted at the tax payers expense but without taking any responsibility for cleaning up a few leaves outside their front gate.


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## ryaner (26 Jul 2021)

Getting the council to cut down the trees is near impossible at times. In Fingal they even have a right tree in the right place policy these days and I know of more than one household that had to involve solicitors to get a tree removed as it not only destroyed the path but had grown large enough to start impacting the foundation of their house. And these weren't a case of people wanting it done for free, the council refused to let them try to deal with it themselves.

Sadly there are a lot of cases of this where the wrong tree was planted for an area. You can get away with it for 10-20 years in some cases before it starts doing damage but by that time it is no longer just a case of putting some concrete down to repair a footpath.


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## Shirazman (26 Jul 2021)

Purple said:


> I couldn't see any sign of negligence, so I just took it as kids being kids. The manager said I was the first parent who didn't make a claim for an accident like that.
> *It's crazy that any business should be held liable for that sort of accident.*



It's also crazy that a situation has evolved in Ireland where insurance companies will routinely settle such claims out of court - irrespect of their merit - because it's far cheaper for them.


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## Purple (26 Jul 2021)

Shirazman said:


> It's also crazy that a situation has evolved in Ireland where insurance companies will routinely settle such claims out of court - irrespect of their merit - because it's far cheaper for them.


It is, although it is the insurance company that the claim is against so it is their decision.


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