Monday 19 August 2019

Brendan O'Connor: 'In the world of legal claims and counter claims, remember: personal injury is on the way out, fake shoplifting is in'

As the tide turns on injury compensation claims, lawyers and their clients are cooking up a replacement, says Brendan O'Connor

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Brendan O'Connor

Brendan O'Connor

Now that we've all got over our fit of righteousness against Maria Bailey, -the only politician who ever made a mistake, and who is solely to blame for Fine Gael's poor performance in the local and European elections, and who certainly proved right those who say women in the workplace are often the least supportive of their female colleagues - maybe it is time to look at the bigger picture.

The bigger picture is that, as the reaction to the Maria Bailey case tells us, there is a cultural turn happening against personal injury claims and especially ones that are viewed as frivolous, opportunistic or vexatious. Which is not to say Maria Bailey's case was any of those things.

The court, as Maria Bailey reminds us, is the only forum that can pass judgement on her abandoned claim but the general view was that it might have been excessive to bring the claim she did.

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And there is certainly a cultural moment against those kinds of claims. No one really has a problem with people winning claims for injuries that are life-changing or that end up causing huge personal, professional or financial cost to claimants.

But the cost to Maria Bailey of her accident on the swing, was, you'd have to say, largely self-inflicted - and it didn't happen that night in the Dean but last week on Sean O'Rourke.

There is a growing intolerance of opportunistic personal injury cases because people are conscious, in a way they haven't always been, that it is the rest of us who pay for these claims with higher premiums.

Indeed, as we've started seeing with play centres, some workers and business people pay with the loss of their job or even their business.

It would also seem judges are getting more rigorous about examining these claims, though many resist moves to keep awards down.

Would-be claimants needn't worry too much about the beginning of the end for personal injury claims because there's a new game in town.

There are solicitors actively harvesting these claims on their websites by encouraging people to get in touch if they feel they have a case. You will have noticed them popping up in the media and court reports. Yes, defamation cases are having a bit of a moment.

Indeed, many people in legal circles now believe there is an almost concerted effort in some quarters of their profession to make defamation the new personal injury.

And this is not your bog-standard newspaper defamation. This is the uniquely humiliating and upsetting defamation that happens when you are maybe out shopping, or going for a drink, or interacting with other businesses in your day-to-day life.

You've heard of #everydaysexism. Well this is #everydaydefamation. It occurs when an innocent party is traduced by a menacing security guard looking to search a bag, when a poor unfortunate is accused of shoplifting, when they are refused a drink. It's on the rise across all areas of life. The slings and arrows of everyday defamation are piercing and they are many.

And this problem is only getting worse in recent years. Between 2014 and 2017, defamation cases taken in the Circuit Courts increased over fivefold. I don't have last year's figures but, judging by the newspapers, I'd bet it's still on the rise.

All Circuit Court defamation cases are not everyday defamation but most of them are. Libel and other types of defamation would tend, as a rule, to be dealt with in the High Court.

You will notice, too, that many of the cases of everyday defamation you read about involve a claim of €75,000 - which reflects the maximum you can claim in the Circuit Court. For every lawyer trying to drum up these claims, there are lawyers trying to help businesses avoid it. Indeed, often the same lawyers are doing both, playing both sides of the fence.

For example, retailers are being warned by their lawyers there is evidence that people are actively setting up these claims.

For example, to prove defamation, the slander needs to have been broadcast to other people. So to make sure you have an obliging witness when you take your claim, it's a good idea to bring along a friend. So this is what potential claimants will often do.

Another trick, apparently, is to act suspicious and shifty, as if you might be concealing a product on you. In other words, look like you might be shoplifting but don't actually shoplift. You may have seen CCTV going around of various people trying to set up security guards. The sleight of hand can be quite amazing - you'd swear they had taken something but they haven't. Pretend shoplifting is becoming a more valuable skill than real shoplifting.

Apparently the ideal situation, and somewhat of an emerging trend in the area, is to get somebody to accuse a child of shoplifting. That's the jackpot in everyday defamation as claims involving a minor are very difficult for a retailer to defend.

Such is the fear of everyday defamation, there are new rules around approaching suspected shoplifters. Retailers are being warned a single staff member should never approach a suspected shoplifter any more.

Staff, like the potential defamee, need to work in pairs apparently. And indeed you can't accuse anyone of shoplifting any more either.

The focus of your language should be that you, the retailer, may have failed to charge, rather than suggesting the potential shoplifter may have failed to pay. So any potential shoplifting isn't the shoplifter's fault, it's your fault.

The reality is there are many more of these claims than those that make it to the courts or into the papers. Because the reality is that many defamed non-shoplifters are happy to accept a settlement of a smaller amount, with their legal bills paid. Everyone's a winner.

The retailer gets off lightly, the claimant banks less money but without the risk of some interfering judge throwing the case out and the lawyers, as always, get their fees.

You will notice I am not referencing any cases, successful or unsuccessful. You can understand why. These claimants are very protective of their reputations and so are their lawyers.

So watch out for everyday defamation. It's the hot new trend on the High Street. Let's hope it doesn't catch on too much.

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