The High Court refused applications in two personal injuries cases to include agreed settlement terms in court orders. Mr Justice Twomey said the Department of Social Protection, whose reimbursement rights could be affected, had not consented to the terms.
The applications arose in Aline Condon v Health Service Executive and Monika Szwarc v Hanford Commercial Ltd, trading as Maldron Hotel Wexford. The judgment describes both as “nuisance settlements”. The parties sought orders recording terms agreed, or proposed, in settlement. The court heard the applications on 17 June 2021 and delivered this ex tempore judgment on 29 June.
The issue concerned section 343R of the Social Welfare Consolidation Act 2005. In general, a compensator must reimburse the Minister for specified recoverable benefits before paying compensation. Where recoverable benefits exceed a relevant compensation payment attributable to lost earnings, subsection (2) limits the compensator’s liability to the amount ordered by a court or assessed by the Personal Injuries Assessment Board.
The judge said the requested orders could reduce or remove the Department’s reimbursement. The Department was not represented in the applications, and there was no evidence it consented. Applying principles of natural and constitutional justice, the court said it should not make an order that prejudiced the Department without its consent. It refused both applications on that basis.
The judge also considered whether a “court order” under section 343R could include terms agreed by settling parties. He concluded that the provision required an independent determination by a neutral court, based on evidence tested in an adversarial process when the plaintiff’s and defendant’s interests were not aligned. He said the section did not contemplate parties agreeing a loss-of-earnings allocation in settlement and then seeking an order that could reduce the defendant’s reimbursement obligation.
The judgment records that counsel argued such orders would facilitate settlement of nuisance claims and help reduce court waiting lists. The court’s conclusion was that settlement terms should not be inserted for the financial benefit of defendants and indirect benefit to plaintiffs at the taxpayer’s expense without the consent of the party prejudiced.
In a postscript, the judge noted that another High Court judge had disagreed with his analysis in Matthews v Eircom, delivered three days later. He said any differing High Court views might be a matter for the appellate courts. This judgment refused the applications; it did not determine the underlying injury claims or make findings about their merits.