A High Court judge has said his colleague’s finding that a 2005 Act impedes the court’s ability to make certain consent orders when personal injuries claims settle would have the “alarming consequence” of forcing parties to litigate issues they no longer dispute.
Mr Justice Paul Coffey is the latest member of the bench to weigh in on the controversy concerning the court’s practice of making consent settlement orders that reduce the amount insurers must reimburse the State for benefits it paid to plaintiffs arising from their injuries.
The terms, consented to by all parties, may note the plaintiff has withdrawn a loss of earnings claim or accepted some liability for an incident, meaning compensators do not have to reimburse the Department of Social Protection for as much of the illness, injury or social welfare benefits paid to the injured party.
In a recent ruling, Mr Justice Coffey, who manages the High Court’s personal injuries list, approved a consent order in a personal injuries settlement where the plaintiff and defendant agreed liability should be apportioned on 50/50 basis, with the claim for loss of earnings limited to €16,960.
In so doing, he has lined up behind his retired predecessor, Mr Justice Kevin Cross, and his High Court colleague Mr Justice Anthony Barr, who last week reasoned such orders can be made.
He departed from the judgment of Mr Justice Michael Twomey, also a judge of the High Court, who last month refused to make a similar order which, he said, results in the taxpayer footing the bill for what are essentially insurers’ “business expenses”.
Under the Recoverable Benefits and Assistance Scheme 2014, defendants deemed responsible for a plaintiff’s injuries must reimburse the State for benefits paid to the plaintiff arising from their injuries.
Where the compensator’s liability is reduced by a court finding, or through a note in a consent settlement order, the amount to be reimbursed to the Department decreases in kind.
Following an enquiry from Mr Justice Twomey, the Minister for Social Protection said she agreed with his view that consent orders do not amount to an “order of a court” for the purposes of section 343R(2) of the Social Welfare Consolidation Act 2005.
He found such an order did not have the same status as a court making a liability finding after hearing extensive evidence.
However, Mr Justice Paul Coffey said Mr Justice Twomey’s suggestion that an “order of the court” follows an adversarial hearing of evidence is “manifestly not provided for” in the 2005 Act.
Such an interpretation, said Mr Justice Coffey, is “unwarranted” by a reading of the Act and would have the “alarming consequence” of requiring parties to litigate for days or weeks cases or issues that have been lawfully and properly agreed.
The function of the court is to determine issues in dispute, not to compel the parties to litigate agreed matters, said Mr Justice Coffey.
This logic, he added, applies no less to a claim for loss of earnings as to any other issue that might arise in a personal injuries case, such as negligence, contributory negligence, causation and quantum.
Such consent orders are “no less an ‘order of the court’ than an order made after an uncontested, partially contested or fully contested hearing”, and the introduction of the 2005 Act does not change the court’s jurisdiction in this regard.
Whether such an order in any given case is “an order of a court” under the Act can only be determined when that issue is raised in appropriate proceedings to which the Minister is a party, the judge added.
While not required by the Act, the judge said it seems desirable in the interests of transparency that legal practitioners should outline the factual and legal basis on which the parties have agreed to apportion liability.
He said the court retains a residual discretion to refuse a consent order if no reason can be given for its making or where the reason offered is unsatisfactory.
In a follow-up to his judgment, while dealing with Tuesday’s personal injury list, Mr Justice Coffey asked practitioners to familiarise themselves with his ruling. He said he would continue to make consent orders but he would expect practitioners to “outline the factual basis” for them.
