High Court judges divided about consent orders in personal injuries settlements

There is no cogent evidence to support a claim the taxpayer has effectively subsidised insurance companies to the tune of €20 million when they make settlement deals in injury compensation cases, a High Court judge has said.

Mr Justice Anthony Barr has rowed in behind his retired colleague Kevin Cross who strongly disagreed with another High Court judge, Mr Justice Michael Twomey, over the court noting the level of liability accepted by each party when making “consent orders” in the settlement of injury claims.

The €20 million figure was first raised by Mr Justice Twomey in June 2021 when he refused to include in an agreed settlement of a compensation case a consent order that the judge said would have meant the taxpayer was subsidising a “business expense” of the insurer.

Mr Justice Twomey said the practice, which occurs on a daily basis in the personal injuries list, is used by an insurer to claim it is not legally obliged to reimburse the Minister for Social Protection for the amount, or part of the amount, paid to a plaintiff in social welfare benefits during the time they were affected by their injuries.

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In a ruling this week, Mr Justice Barr said he could not find the source of the €20 million figure, which was first referred to in an academic article by a former judge’s judicial assistant Neasa Peters.

The sum was apparently contained in a letter written by the minister to FBD Insurance in 2017. The letter was included in an FBD prospectus when they were inviting people to subscribe to 10-year bond-type investments.

Mr Justice Barr tried to find the Central Bank link to this prospectus provided by Ms Peters but it was no longer there. He also tried to obtain the prospectus directly from the Central Bank.

The court should make a finding that “a loss of such magnitude has been established, without cogent admissible evidence to that effect”, he said.

The judge also did not believe the minister could possibly have formed the opinion, when writing in 2017, that insurers had wrongfully failed to pay the amount.

He suspected the figure’s source “was a simple mathematical calculation” of the total paid in benefits and assistance by the department up to 2017 less the amount received by insurers on foot of court orders in settled personal injury actions.

It did not mean that amount was fraudulently withheld by the insurers, he said.

If the minister genuinely believed she was wrongfully denied full recoupment of benefits, she could have brought judicial review proceedings to “address that state of affairs”, he added.

In large part, an agreement between parties in personal injury actions about orders covering social welfare benefits “depends on trust between the bench (judges) and the barristers who applied for such orders”.

Judges proceed on the assumption barristers proposing the court should make a particular determination, as part of a consent order, do so because there is a rational evidential basis for asking the court to make that determination, he said.

Mr Justice Barr made the comments when deciding to approve a consent order in a settlement of €50,000 for Jean Wilson (65), a worker at the Virginia Park Lodge Hotel in Cavan. She was injured when the golf buggy she was driving was hit by a car on July 10th, 2017.

The court heard she had driven wedding party guests from the hotel across the road to the Virginia church when a car hit her buggy as it was going back across the road.

It was accepted that the car driver had no chance to avoid her because she proceeded out of the church car park without looking.

Her case remained against Virginia Park Lodge Ltd on the basis that she had not been trained to drive the buggy, which she had never done before.

Included in the settlement was a request for the court to note that liability was determined on a 50/50 basis between the plaintiff and the defendant.

While ordinarily a judge should follow the decision given by a judge at the same level, where there are conflicting decisions at the same level, a judge is free to follow whichever line of authority appears to be the most persuasive, Mr Justice Barr said.

He was satisfied it was appropriate to make a determination of liability on a 50/50 basis between the parties.