Solicitor failed to 'twig' client mentioned two previous accidents during consultation about suing for a third, court hears
A solicitor has accepted responsibility for failing to "twig" a client had informed him of two previous accidents following a consultation about suing in relation to a third, the High Court heard.
Garrett Fortune had twice not "twigged" Sean Ward had told him about the previous accidents when processing and returning paperwork in relation to his latest accident in 2016 when he claims he injured his knee after a car driven by his wife skidded and hit a wall on an icy night.
"It is entirely my responsibility", Mr Fortune told Mr Justice Bernard Barton who had directed the solicitor come to court to explain why information about the previous accidents had not been disclosed in the run up to the case.
Mr Ward (43), a satellite installer of Rivercrest, Tuam, Co Galway, is suing his wife, Geraldine McDonagh, over the accident near Athlone in January 2016 when the couple had returned from visiting a grandparents' grave and had also collected three of their nephews on the way home. Aviva, Ms McDonagh's insurers, are fighting the case.
Noel McCarthy SC, for the insurers and the defendant, said he will be making an application next month to have the case struck out on the basis it is a fraudulent or exaggerated claim.
Mr Fortune told the court on Friday he had acted for Mr Ward in 2014 in relation to a previous accident and had only met him three times in all before this case.
He said if there was a suggestion he should have recognised him or knew him, he said because the only met him once in 2014 and again in 2016, there was "not a snowball's chance I would recognise him even today because I saw him three times before this current case".
During a consultation with Mr Ward in July 2016, in which he was dealing with requests for further information from his wife's insurers, he said the section of the form in relation to whether he had been involved in previous accidents was left blank because, he believed, he had dealt with that separately on another page. When Mr Ward said he had been involved in two other accidents, a note was take of this but it was attached separately to this particular file.
As a result of putting these details on a separate notice, he did "not twig" it when it came to further processing the papers. It happened a second time when he later asked Mr Ward for details of the recovery driver who picked up their car on the night of the accident.
There was a handwritten note in which Mr Ward had mentioned the two previous accidents and again, Mr Fortune said, his office "should have twigged that, it was the second red flag".
Cross examined by Mr McCarthy, for Aviva and Ms McDonagh, Mr Fortune agreed there was no issue that it was "utterly incorrect" and "clearly wrong" that Mr Ward signed a verifying affidavit (saying there were no previous accidents). He did not ask his client for an explanation after he was asked to come to court to give evidence on it as it would have been inappropriate to do so.
He agreed Mr Ward had initially claimed his neck and back were injured but was now saying it was his knee because it must have hit the dashboard during the collision.
Mr Justice Barton, who noted Mr Fortune was well known to him and he had no reason to consider he acted other than professionally, said an affidavit by Mr Ward stated the commissioner for oaths had witnessed and signed it. Mr Fortune said his office had a commissioner who came in every week to do this.
The judge said the commissioner swore "he knows" Mr Ward but what was done here was completely contrary to law. "This practice must stop immediately", he said.
After hearing that Mr McCarthy would be making an application to dismiss it as a fraudulent claim under Section 26 of the Civil Liability and Courts Act 2004, the judge adjourned the matter for mention to next month.