IESC 66
THE SUPREME COURT
BUS ÁTHA CLIATH/DUBLIN BUS
Defendant/AppellantJUDGMENT of Mr. Justice Hardiman delivered the 18th day of December , 2003.
1. This is the defendant’s appeal from the judgment and order of the High Court (O’Donovan J.) of the 28th March, 2003 whereby the plaintiff was awarded €15,000 for general damages and €5,431.00 in respect of special damages making a total of €20,431.00. The defendant’s appeal is on an unusual basis. It says that the plaintiff’s claim, as presented to the High Court, was grossly exaggerated, so as to amount of an abuse of the process of the Court. Therefore, it says, the action should have been dismissed. The Defendant also says that a finding by the learned trial judge that, although the plaintiff grossly exaggerated his injuries, he was an honest witness and did not do so deliberately, was contrary to the evidence. It also says that the learned judge failed to give any or any sufficient weight to the contradictions, exaggerations and falsehoods perpetrated by the plaintiff both in the course of urging his claim in pleadings and correspondence and in court.
2. Separately, the defendant submits that it should be entitled to certain relief in relation to costs, having regard to the amount actually recovered and to the provisions of s.17 of the Courts Act, 1981 as inserted by s.14 of the Courts Act, 1991.
The factual background, pleadings and correspondence.
3. The plaintiff was born on the 15th June, 1968. At the time of the accident he was a self employed motor engineer, with garage premises on the North Circular Road, Dublin 7. He had been in business there since 1990 according to his direct evidence and was mainly engaged in the servicing of light commercial vehicles.
4. On the 18th November, 1996 the plaintiff was driving a four wheel drive jeep which he used for towing. He was stationery in a line of traffic on the Malahide Road when he was struck in the rear by a bus. Proceedings were instituted on the 26th April, 1999 and a statement of claim was delivered on the 29th September of that year. The injuries in respect of which damages were claimed consisted of injuries to the neck and back with resultant pain stiffness and restriction of movement. This was said to affect his work. In describing his condition in the first eighteen months after the accident, and the pain he suffered, he said in evidence:-
5. The plaintiff said that in the year 2000 he changed to a job “dealing with kids in the inner city from deprived areas. It was a job that was offered to me at the time because they had put a number of instructors in and everyone of the instructors that went in left, one left after three days a much less physical job”. He said he changed to that job because “it was more mental oriented, far less physical”. Before changing jobs he was “not able to physically do the type of work that I would need to do to have a reasonably good lifestyle out of it”.
“It was there all the time but it would – during working hours or during the day, if you were in inside working and producing, because that’s what you had to do, was actually produce X amount of work each day, it would get worse. It constantly increased and increased and increased and it increased to the point at Christmas time that I actually lay down on the floor for five hours unable to move”.
The loss of earnings claim.
6. By notice for particular dated the 5th October, 1999 the plaintiff was asked, inter alia, to say how the sum claimed in respect of loss of earnings and future loss of earnings was computed and made up. This was initially replied to by stating that a report was awaited from his accountants. On the 9th March, 2001 this report was furnished. It dealt with his earnings for the years 1997, 1998 and 1999 under the headings “Actual sales, Actual net earnings, Budgeted sales and Budgeted net earnings”. It also said that his business had ceased to trade from the 30th August, 2000 “due to financial difficulties and is presently being wound up which included disposal of the remaining assets and settlement of outstanding creditors”.
7. On the 10th June, 2002 the plaintiff’s solicitor furnished a further letter alleging various continuing symptoms including “headaches, neck pain with restriction of movement of 25% and pain spreading to his shoulders and right arm with a feeling of tightness in the muscles of his right arm and spasmosis in his shoulder and neck together with difficulty in lifting turning and bending, which affects his occupation as a motor engineer”.
8. The plaintiff had not worked as a motor engineer for almost two years prior to date of this letter.
9. The plaintiff’s solicitor also said that he continued to have pain in his lower back muscle spasm and 25% restriction of movement. He continued:-
10. Although the last letter was not in response to any correspondence from the defendants, its context was that on the 13th July, 2001 the defendants had asked specifically whether or not the plaintiff’s claim for loss of earnings was continuing and the plaintiff’s solicitors had replied that “as pleaded our client has a claim for continuing loss of earnings”.
“All of which has created difficulty in his continuing to work and has prevented him to work at the level of which he was capable of prior to the accident and which he would have hoped and expected to work at subsequent to the accident, with consequent loss of business and earnings as projected in (the accountant’s letter)”.
Evidence at the trial.
(a) Loss of earnings.
11. The plaintiff in his direct evidence proved the figures set out in the accountant’s letter and said that, in relation to the year 1999, his actual earnings were about £10,000 less than his budgeted or projected earnings. He explained that this was because he was not able to work as hard or as effectively as he might have, due to his injury, and because he was maintaining machinery which was not fully utilised. At the end of the direct evidence the judge asked expressly what was being claimed for loss of earnings. He was told “There is no specific sum being claimed for loss of earnings, it is part of the general damages as such My Lord”. The correspondence summarised above was then produced by the defendant and the learned trial judge, correctly in my view, said “The accounts seem to suggest that they are claiming the difference between the actual earnings and the budgeted earnings”. Notwithstanding this, the plaintiff’s counsel stated at the trial that the loss of earnings was not alleged to be an ongoing loss.
12. The plaintiff was rigorously cross-examined as to his capacity for work at different times. It must be said that his answers in the transcript appear evasive. He was specifically asked whether as a result of his injuries he was prevented from doing the sort of work he had been doing at the time of the accident and stated eventually “If that was the type of work that you are constantly doing, yes I wouldn’t be able to do it”. He agreed that he had not said that to his doctors. He also stated that he was not making a claim for loss of earnings into the future, from the time of trial. He was cross-examined as to the correspondence and the learned trial judge said correctly in my view, speaking of the correspondence:-
13. The plaintiff said that he was still affected by his injuries but to a lesser extent than previously. There then began the exploration of a series of themes in relation to which the plaintiff was uniformly evasive. He was asked what vehicles he had owned and it took twelve questions to get a complete answer, in particular that he had owned an Opel Kadet van. It then transpired that the address which the plaintiff had given in his statement of claim was one at which he had not lived since 1993.
“There is no limit on it there. It looks, as I read it, it looks as if a claim for future loss of earnings. Certainly when you read it in the context of the other correspondence it can mean nothing else”.
14. The reason for these difficulties and evasions transpired to be that the plaintiff is now living in premises, 58a St. Margaret’s Avenue, Kilbarrack. This was a house built in the grounds of another house, 58 St. Margaret’s Avenue, and built in the year 2001. It was put to the plaintiff that he had in fact built the house where he resided and he said “I did a certain amount of work yes”. He said he did some carpentry. Cross-examination continued over several pages of transcript before he stated “There was some concrete mixed”. He was then asked whether he had mixed concrete and agreed that he had. He also agreed that he had collected material, including sand, in bags which he loaded into the back of the Opel Kadet van. Asked what proportions of cement and sand he mixed he gave a vague answer. Asked whether he had mixed it he said “I have watched people doing it”. Pressed further he said “I did mix some of it yes”.
15. It transpired, as might have been expected from certain of the questions in cross-examination, that the defendants were in possession of a video tape dating from March 2001, showing the plaintiff engaging in building work in Raheny and various ancillary activities. On the 10th March, 2001 the plaintiff was seen taking a trailer to a Land Rover vehicle and attaching the trailer. A fortnight later he was in a white vehicle with a load of timber. He was seen leaving premises in that vehicle and coming back with the vehicle loaded with sand. This was the Opel Kadet. He was shown unloading the bags of sand from the back of the vehicle. Subsequent to this he left in the same vehicle and came back with cement in the back of the vehicle. On Sunday the 31st March, 2001 he was seen, at No. 58a moving a cement mixer from the garage and commencing “mixing, concrete or cement or whatever”. He was seen lifting bags and filling the mixer on a number of occasions throughout the afternoon. He was seen lifting a bag of cement and unloading mix into a wheelbarrow.
16. The effect of these observations is discussed in the learned trial judge’s judgment, mentioned below.
(b) Medical evidence.
17. Mr. Paul McNamee, Orthopaedic Surgeon, gave evidence on behalf of the plaintiff. He referred to a previous traffic accident which had occurred in 1990 and in respect of which he saw the plaintiff for the last time in 1992. He saw him in connection with this incident in March of 1997 and heard his complaints of problems with his neck, back and knee. He found no neurological deficit and advised physiotherapy. Clinically “he had some decrease in neck movements”. Mr. McNamee could not quantify them but thought there was a reduction greater than 25%. Mr. McNamee knew the nature of Mr. O’Connor’s work. He did not advise him to change jobs. He did not refer him for radiological examination and saw him in all on three occasions, the last being two years after the first. On first seeing him he thought he would make a full recovery within six months. He was surprised when he saw him next having regard to the length of time since the accident. He struck him “as being a genuine sort of man in his complaints”. He did not complain to him about being unable to do his work or about having difficulty managing in that area. He was not aware until the hearing that the plaintiff had changed his job. When, in October 2000, Mr. McNamee wrote ‘I do not feel that this man’s injury should cause him to give up the sort of work that he is doing now’, he did not realise that he had in fact changed his work by that date. He thought he was still a motor engineer, and that he was fit for that job.
18. The learned trial judge gave judgment on the 3rd day of the hearing, having reserved it overnight. He concluded that soft tissue injuries were a probable consequence of the sort of accident which the plaintiff had but that it was equally probable “that those injuries were of a very moderate nature”. He noted that the plaintiff claimed to have ongoing problems and held, for reasons which he gave, that these complaints were inconsistent with the evidence of Mr. McNamee. The learned trial judge held that the plaintiff’s evidence in that regard was also inconsistent with his accountant’s certificate stating that he had ceased to trade due to financial difficulties. Thirdly the learned trial judge held that the evidence about ongoing difficulties was inconsistent with the activity shown on the video tape.
19. As the result of this the learned trial judge held that:-
20. He continued, however, to say that he was not persuaded:-
“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”.
21. The learned trial judge repeated that he regarded the injury as a very moderate one. He was not persuaded that the plaintiff suffered any reduction in income and assessed damages in the sums mentioned above.
“that he told me deliberate lies. While 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 ongoing 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 his 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”.
Dismissal for abuse of process.
22. In urging that the action should be dismissed on this ground, the appellants relied heavily on certain dicta of Denham J. and of my own in Vesey v. Bus Eireann (Supreme Court unreported 13th November, 2001) and Shelly-Morris v. Bus Átha Cliath (Supreme Court unreported 11th December, 2002). I am entirely happy to reiterate all that was said in those cases. But the learned trial judge’s finding, to the effect that the plaintiff’s description of the effect of his injuries was grossly exaggerated, but not deliberately dishonest, is a huge obstacle in the way of the submission that the plaintiff’s claim should be dismissed, basically for dishonesty in advancing it.
23. In Vesey, I rejected the submission, advanced on the basis of an analogy with the power to award exemplary damages as a mark of disapproval of the defendant’s mode of defence, that there was a power to reduce a plaintiff’s damages as a mark of disapproval of his exaggeration or dishonesty. I did this on the basis that there was no direct analogy between the two: “exemplary damages are a graft upon the plaintiff’s entitlement to compensatory damages and an award of damages of the latter sort is a condition of the award of exemplary damages”. I went on to refer to certain cases which exemplified the power of the American Courts to dismiss an action for “flagrant bad faith” and noted that the context in which Irish litigation takes place, particularly in relation to the Courts powers in relation to costs, is somewhat different. I went on to say “But there is plainly a point when dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose upon the other party”.
24. In Shelly-Morris, I cited with approval what Lord Denning said in Goldsmith v. Sperrings  2 AER 566:-
25. Commenting on this passage and another cited in Shelly-Morris, I said:-
“In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked by the vindication of mens rights of the enforcement of just claims. It is abused when it is diverted from its true course as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process if they can before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrong doer”.
26. That drastic step was not taken either in Vesey or in Shelly-Morris. It is manifest, therefore, that the passages in question are obiter, and this is reiterated by Murray J. in his judgment in the present case. Nevertheless, they were made for good reason. Both of the cases mentioned were cases of grave dishonesty in the prosecution of claims for damages for personal injuries. This was not seriously disputed on the part of the plaintiffs, but their respective counsel went on to make submissions, summarised in each of the judgments, to the effect that the legal consequences of this dishonesty should be limited to the particular aspects of the case to which it related. I rejected these submissions for the reasons set out in the judgments, most of which are self-evident, and some of which are mentioned in the judgment of Murray J. in the present case. These relate to the effect of proven or manifest dishonesty having regard to the plaintiff’s onus of proof.
“I have no doubt that these principles are equally applicable in this jurisdiction. It must not be thought that a falsehood in respect of one aspect of the claim will, at worst, lead to that particular part of the claim being reduced or disallowed. The Courts have a power and a duty to protect their own processes being made the vehicle of unjustified recovery. In a proper case this will be done by staying or striking out the plaintiff’s proceedings”.
27. But even in a case where the plaintiff is able otherwise to discharge the onus of proof that rests on him, established dishonesty may still require notice. In Vesey, a case where liability was not an issue, the learned trial judge had found that the plaintiff had lied to the Court, to his own doctors and to the defendant’s doctors. These trenchant findings, some of which were indicated in the course of the trial, elicited only the extraordinary submission that it was the responsibility of the Judge “to disentangle” the genuine from the exaggerated portions of the plaintiff’s own evidence, and make an award accordingly. It was in that context that I said, and would now repeat, that “There is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose on the other party”.
28. Why say this at all in a case where it is not intended to act on it? Precisely because, as is pointed out in Shelly-Morris, the well established principles in relation to abuse of process have been little considered in the particular context of personal injuries claims. This in itself has consequences: in Vesey I found that even if there were a power to reduce damages in respect of dishonesty “ it would not be appropriate to exercise it without warning in the circumstances of the present case”. The two cases now under discussion are quite dramatic examples of grave and premeditated dishonesty in the pursuit of damages for personal injuries. They are not unique in this respect, even though I believe the majority of plaintiffs present their cases in a straightforward way. But because exaggeration is not unknown it is fair publicly to state what I believe to be the inherent powers of the Court in cases of gross dishonesty, precisely so as to remove the possible unfairness involved in exercising those powers without warning.
29. A significant number of personal injury claims feature injuries which are not, or not wholly, capable of being proved or negatived by the normal processes of clinical medicine. The credibility of the plaintiff is central in such cases, some of which are very substantial ones. Video surveillance of the kind featured in this case is often resorted to as a check or control of the plaintiffs’ account. On the subject of this surveillance, I would recall what I said about fixed video cameras in Dunne v. DPP  2 IR 305 at 324:
30. It is this process of adaptation which may require the Courts to ensure that their procedures, including those relating to abuse of process, are fully responsive to the availability on occasion of crucial and coercive evidence, whether in video form or otherwise.
“The near ubiquity of video cameras in urban settings is such that it demands the specific attention of the Courts if their judgments are to be realistic in a contemporary setting. The innovation required is one of adaptation to new technology rather than one of principle.”
31. The foregoing discussion is itself obiter in the present case, as is the lengthy and illuminating discussion of abuse of process in the judgment of Murray J. in the present case, which has occasioned it. The reason for this is the learned trial judge’s finding that the plaintiff here was not subjectively dishonest.
32. On the hearing of appeals of this sort one must always recall the well known and very often cited words of McCarthy J. in Hay v. O’Grady  1 IR 210 at 217:-
33. There is ample reason to think that the plaintiff was a cautious and wary witness, one prone to repeat questions instead of answering them, to offer irrelevant evidence and to attempt to probe what the defendant knew already before making concessions. But the learned trial judge who saw and heard him has held that he was honest but misguided in his exaggerated account of the effect of the injury. That is not a finding which, in the absence of something coercive, this Court can disregard. The work of which the plaintiff was shown to be capable by the video tape is indeed inconsistent with the plaintiff’s account of continuing disability. But it must be noted that (unlike Shelly-Morris) the plaintiff did not actually deny an ability to perform these tasks. The learned trial judge’s assessment of his state of mind in giving the vital evidence about continuing disability must therefore subsist. In my view, this in itself is inconsistent with regarding the case as an abuse of process or an attempt to impose on the defendant.
“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”.
34. It appears to me that a good deal of the difficulty in this case arose from the fact that the plaintiff avoided being specific about the scope of his claim for loss of earnings. Such a claim should, unless there is something which renders this course impossible, be pleaded as special damage and the distinction between special and general damage should be maintained. Over a hundred years ago, in Ratcliffe v. Evans  2QB 424 special damages were described as “that particular damage (beyond the general damage) which results from the particular circumstances of the case and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial”.
35. In this case the claim to special damages in respect of loss earnings was left at an unacceptable level of vagueness. The claim was being maintained (at least until the trial itself) but it was not quantified. At the trial, this heading of claim was said to be “part of the general damages as such.” Not until after the plaintiff’s direct examination had ended was it established that no claim for loss of earnings into the future was then being urged.
36. In my view it should be perfectly clear, long before a claim for damages for personal injuries reaches a courtroom, whether the plaintiff is maintaining a claim for special damages in the form of loss of earnings; what the amount of that claim is; and whether it is claimed that this loss will persist into the future and in what amount. In many cases, such as the present one, a justified claim for loss of earnings into the future will make the difference between a claim which could properly be brought in the Circuit Court and one which requires the High Court jurisdiction to be invoked.
37. The learned trial judge made an order granting the plaintiff Circuit Court costs with a certificate for senior counsel. Having regard to the terms of s.17(1) of the Courts Act, 1981, as inserted by s.14 of the Courts Act, 1991, he could not have made any more favourable order. The defendant, however, invited the learned trial judge also to make an order under sub-section 5 of the same Section. The text of this sub-section is set out in the judgment of Denham J. The effect of it is to provide a disincentive to the taking of an action in a higher court than is necessary. It provides that where a plaintiff obtains an award of damages which could have been made by a lower court the trial judge has a discretion to order the plaintiff to pay a sum of money to the defendant. This sum is to represent the additional cost incurred by the defendant in defending the action in a higher court, when it might have been taken in a lower court.
38. In refusing to make such an order the learned trial judge had regard to what appears to be the only authority on the Section, the decision of this Court in Mangan v. Independent Newspapers (Ireland) Limited (Supreme Court unreported 31st January, 2003). There, McCracken J. pointed out that an order under sub-section (5) may be made by the trial judge “if in all the circumstances he thinks it appropriate to do so” and observes that this phase undoubtedly confers a discretion on the trial judge. Moreover, that case was a libel action in which different criteria may apply, as appears from the last paragraph of the judgment of McCracken J. I would also say that in such cases there may well be legitimate reasons why a plaintiff may wish to seek vindication at the hands of a jury, a mode of trial available only in the High Court.
39. In the present case, the learned trial judge explained the exercise of his discretion as follows:-
40. I have already indicated that it is not possible for the defendant to go behind the finding that the claim for future loss of earnings was not a fraudulent one. But I do not think that that finding is determinative of the application under s.17(5). If the legislature had intended to create a power to make an order of the sort mentioned in the sub-section only where the claim or some aspect of it was found to be fraudulent, it would have said so. Instead it employed the broader phrase “if in all the circumstances he thinks it appropriate to do so”.
“I think the only reason why I would exercise my discretion against the plaintiff would be if I was 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 don’t think he is entitled to succeed in it, but I am not convinced that it was fraudulent, and I am not convinced that it was fraudulent because, as I have said, I think Mr. O’Connor was a misguided but honest person and I think he believed that his input into his business had gone down, with the result that it wasn’t getting the returns it did”.
41. Moreover, looking at s.17 as a whole, it seems clear that the legislative purpose is to provide a strong incentive to the institution of proceedings, generally, in the lowest court having jurisdiction to make the award appropriate to them. In this case, it is now beyond argument that the plaintiff’s claim could have been dealt with quite adequately in the Circuit Court. This did not occur. The reason it did not occur, as I have already found, was that the plaintiff maintained a studied vagueness on the amount of his claim for loss of earnings. In his statement of claim he pleaded this as an item of special damages, but did not quantify it. In 2001, nearly five years after the accident, he confirmed that he was maintaining a claim for future loss. He did not resile from this position until after his direct evidence had concluded. His claim for loss of earnings was at all times kept vague, eventually to the extent that he said it should be regarded as an aspect of general damages.
42. It is to be noted that the statement of claim in this case was not delivered until three years after the accident. At least by that time, and probably much earlier, any realistic assessment of the plaintiff’s claim would have led to the conclusion that the Circuit Court jurisdiction was more than adequate to it. The eventual award, in respect of both general and special damages, amounted to a sum just over half the Circuit Court’s maximum jurisdiction in tort claims.
43. Furthermore, the case was not one in which a motion to remit the matter to the Circuit Court would have seemed indicated on the information available to the defendants. It may be that they had this option in mind when they inquired, in mid 2001, whether a claim for future loss was being maintained, but they were told that it was. Such a claim, for all they knew, could easily have taken the case well into the jurisdiction of the High Court.
44. The plaintiff never realistically assessed his case, it seems to me, until he was actually in the witness box, and then with the greatest reluctance. He did not resile from a claim for future loss of earnings until after his direct evidence had concluded when he did so through counsel. Only a substantial claim under this heading could justify seeking compensation for what the learned trial judge accurately described as a very moderate injury in the High Court.
45. It is beyond dispute that the power to make an order under sub-section 5 of S.17 is a discretionary one. The learned trial judge exercised this discretion on the basis that:-
46. I do not think that, in order to trigger the discretionary power to make an order under sub-section 5, there must be a finding that the claim or some part of it is fraudulent. The Statute does not limit the discretion in this way. If this Court were to do so, it would in effect be adding words to the Section and a precondition to its operation which the legislature did not wish to do. It follows that the discretion was exercised on an improper basis in this case and that this Court should substitute its own exercise of the discretion.
“The only reason why I would exercise my discretion against the plaintiff would be if I was satisfied that the claim for future loss or the claim for loss of earnings was a fraudulent one”.
47. In my view the sole fact which triggers the discretion is that the plaintiff was awarded a sum, in the High Court, which a lower court would have had power to award. This fact alone does not, of course, require the Court to make an order under sub-section 5. For example, where the award is very close to the limit of the jurisdiction of the lower court or where there has been some unpredictable development during the trial which has an effect in reduction of the ostensible value of the claim, there may be good reason for exercising the discretion in favour of the plaintiff.
48. Here, however, the issue most relevant to the exercise of the discretion is that any realistic assessment of the plaintiff’s case, on the facts as known to him at the time the Statement of Claim was drafted, would have led inexorably to the conclusion that this was a case well within the Circuit Court jurisdiction. But no such assessment took place, apparently because the plaintiff never attempted the essential exercise of quantifying his claim for loss of earnings.
49. The core issue in this case was the quantum of damages. The injuries were “of a very moderate nature”. No reasonable person could have thought that those injuries in themselves would have required proceedings in the High Court. The only substantial additional sum which could be claimed was for loss of earnings: a large sum under this heading would have been required to take the Court case into the High Court jurisdiction. Moreover, on the plaintiff’s own figures, this sum would have had to include an allowance in respect of future loss. At the trial, the plaintiff simply and unilaterally resiled from any claim under this heading: he was not constrained to do so by any new fact proved. He could have done this at any earlier time but did not do so either through failure to address the question of quantum at all or in the pursuit of some tactical advantage.
50. On these facts, in my view, an order pursuant to sub-section 5 should be made if we are to give effect to the legislative intention in enacting that provision.
51. I do not consider that this position is altered by the fact that the defendant, quite apart from seeking an order under sub-section 5, also maintained that the plaintiff’s claim should have been dismissed as an abuse of process by reason of gross exaggeration. There was nothing frivolous about this contention. The learned trial judge held that the plaintiff “grossly exaggerated the symptoms which he alleged that he experiences” and that “ a lot of his problems, particularly his alleged ongoing problems are a figment of his imagination”. This was always the defendant’s view and must have been supported in its mind by the video evidence which it obtained. In my view this justified them in challenging the plaintiff’s honesty: they were entitled to this and had a rational basis for doing so. That position is not affected by the findings that the learned trial judge went on to make, that the plaintiff was not dishonest and had a genuine subjective belief in the grossly exaggerated account which he gave of his symptoms. Because of these findings (as I have held) the defendant cannot pursue its claim for relief based on the proposition that the proceedings were an abuse of process. But that fact is irrelevant to the quite separate issue of whether we should, in our discretion, make an order pursuant to sub-section 5. If we were to accord it any relevance we would in my view be falling into a variant of the error which affected the exercise of the discretion in the High Court, by regarding the question of subjective honesty or dishonesty as key to the exercise of the discretion under that sub-section.
52. In a case where fraud or dishonesty is irresponsibly pleaded, the Court has a number of options. A written pleading may be struck out. If the plaintiff wins, he may be awarded exemplary damages in respect of a groundless attack on his character, as occurred in the case of Crawford v. Keane [High Court unreported Barr J. 7th April, 2000]. If the plaintiff loses on other grounds, the baseless allegation may affect the Court’s discretion as to costs. Equally, in a situation where the defendant is able to make an application under s.17(5) a groundless or irresponsible plea of dishonesty may affect the exercise of the Court’s discretion. But the present case is not in any of these categories, for the reasons given above. The fact that the plaintiff, whose evidence was “grossly exaggerated” and part of whose claim was a “figment of his imagination”, was despite this a subjectively honest man is something which could only have been discovered on vive voce examination and direct assessment by the learned trial judge. On the facts of this case, the issue of the plaintiff’s subjective honesty, properly but not predictably resolved in his favour, is not relevant to the discretion under s.17(5). What is relevant is this: the plaintiff’s claim was never one appropriate to the High Court jurisdiction; the claim for future loss of earnings was one which should never have been made and, once made, should have been withdrawn years before the full hearing at which it was in fact withdrawn; and the case could have been more quickly and more cheaply resolved in the Circuit Court. The fact that this did not happen was due either to total inattention on the part of the plaintiff to the value of his claim or alternatively to the pursuit by him of some perceived tactical advantage in taking his case in the High Court. In either event the mischief of litigation which is more elaborate and more expensive than it should be is precisely the mischief at which s.17(5) is aimed. Unless the Court, by the exercise of its discretion, imposes a price on those who thoughtlessly, or in pursuit of tactical advantage, embark on litigation which is elaborate and expensive when it could have been simpler and cheaper, the intention of the legislature will in my view be frustrated. Litigation which is unduly elaborate and expensive imposes a cost on others: most directly on the defendant but on wider groups and on society as a whole in the form of a social cost. The legislative intent in s.17(5) is, in an appropriate case, to impose the cost of overblown litigation, or part of it at least, on those who make it so.
53. In all these circumstances it seems to me appropriate to make an order under sub-section (5) of s.17. I would therefore accordingly order that the plaintiff pay to the defendant an amount equal to the difference between the sums mentioned in s.17(5)(a)(I) and (II) respectively.
54. I would dismiss the appeal and affirm the order of the learned trial judge. I would, however, also make an order pursuant to s.17(5) of the Courts Act, 1981 for the payment by the plaintiff to the defendant of a sum calculated in the manner described in the preceding paragraph.