Sunday 8 December 2019

Judge criticises insurance company for accusing solicitors firm of misconduct

The back of the taxi after the accident
The back of the taxi after the accident
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 Bairead solicitors in Edenderry, Co Offaly after three clients withdrew their appeals last week “at the eleventh hour”.

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

Mr McDonagh alleged there was a conflict of interest as the solicitors firm was acting for people who were in both vehicles involved in the collision.

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

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, Mr Micheal Harrington, who was driving the taxi, said there was “no damage done”.

At Naas Circuit Civil Court today, Mr 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.

“What you’re talking about is misconduct and you are alleging the solicitor took a claim which they knew to be fraudulent.

“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.

“The defendants are seeking a wasted costs order for the solicitors of the plaintiff. A solicitor is a professional person and is an officer of the court and implied in a wasted costs order if not actually stated is that in order to make such an order they would have to be satisfied there was misconduct on behalf of the solicitor involved."

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 Bairead 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 and no reference was made to these proceedings being fraudulent in nature in the Circuit Court.

“We are of the view there is no justification whatsoever for making such an application.”

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.

The court heard there is currently three personal injury claims outstanding from three separate claimants involved in the same accident.

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