Wednesday 11 December 2019

Insurance firm criticised by judge for claim about solicitors

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Amy Molloy

Amy Molloy

A judge has criticised an insurance company for accusing a solicitors' firm of misconduct after it lodged appeals on behalf of three personal injury claimants who were involved in a minor collision.

Aviva Insurance sought a wasted costs order against O'Shaughnessy Bairéad solicitors in Edenderry, Co Offaly, after three clients withdrew their appeals last week "at the eleventh hour".

Bernard McDonagh SC made the application on behalf of Aviva and said "alarm bells should have been ringing" for the firm after the plaintiffs' personal injury claims were dismissed in Tullamore Circuit Civil Court in April last year.

Phyllis McDonagh (38) of St Columba's Place, Tullamore, was a passenger in a car that rear-ended a taxi carrying five people and brought a personal injury claim against Mark McDonagh, the driver of the car she was travelling in.

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Robert Vicars (33), of Thornsberry Estate, Tullamore, and Samantha Dunican (21), of Cluain Darach, Tullamore, who were passengers in the taxi, also brought personal injury claims against Mr McDonagh. In previous evidence, Michael Harrington, who was driving the taxi, said there was "no damage done".

At Naas Circuit Civil Court yesterday, Bernard McDonagh said Aviva was seeking a wasted costs order as it believed the appeals should not have been lodged given how minimal the impact was. "All the pleadings allege there was a violent collision," Mr McDonagh said.

Mr Justice Charles Meenan said it often happens that solicitors receive instructions that turn out not to be correct, but "that does not amount to misconduct".

"They were wrong about that [it being a violent collision] but that doesn't make it misconduct. The claims were previously dismissed, but if every claim dismissed were to lead to allegations of misconduct on the part of the solicitor, that would be an extraordinary situation," he added.

Dismissing the application, Mr Justice Meenan said he found it "extraordinary" there was no affidavit produced by the defence and said there was "no basis whatsoever" to serve a wasted costs order, as there was no misconduct.

Paul Flannery SC, counsel for the plaintiffs, said O'Shaughnessy Bairéad took "significant umbrage" with Aviva for making such an application.

He read out a letter on behalf of the firm, which said: "We at all times acted on the instructions of the plaintiffs in these proceedings and should not be liable for their decisions.

"Plaintiffs should be entitled to appeal and we note there was no criminal prosecutions following the road traffic accident that occurred."

The letter said the move was a "deliberate attempt to intimidate this firm".

Mr Justice Meenan struck out the appeals and awarded Aviva one set of costs for the three appeals as they ran simultaneously.

Irish Independent

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