Judgment: 2024-01-25 · Court archive

Court of Appeal rejects bid to revive claim against MIBI after agreed discontinuance

The court dismissed a personal injury claimant’s appeal, finding the High Court order reinstating the Motor Insurers Bureau of Ireland should be set aside. It cited delay, an ex parte application and the earlier agreement that the claim against MIBI would end without a costs claim.

Court of Appeal · [2024] IECA 33

Who, what, where, when and why

Who
  • David Higgins (Plaintiff)
  • Motor Insurers Bureau of Ireland
  • Patrick McDonagh (Defendant)
What

The court dismissed a personal injury claimant’s appeal, finding the High Court order reinstating the Motor Insurers Bureau of Ireland should be set aside. It cited delay, an ex parte application and the earlier agreement that the claim against MIBI would end without a costs claim.

Where

Places mentioned in the report

  • Galway
When

Judgment:

Why

Reasons reported in the judgment

The appeal concerned a 2022 High Court order that had reinstated MIBI as a defendant after Higgins’s solicitors discontinued the claim against it in 2019. The Court of Appeal held that MIBI was entitled to have the reinstatement order set aside. It did not decide whether the court had jurisdiction to set aside a notice of discontinuance, saying it could assume that jurisdiction existed for the purpose of the appeal.

The Court of Appeal has dismissed David Higgins’s appeal over an order setting aside the reinstatement of the Motor Insurers Bureau of Ireland (MIBI) in his personal injury proceedings.

The appeal concerned a 2022 High Court order that had reinstated MIBI as a defendant after Higgins’s solicitors discontinued the claim against it in 2019. The Court of Appeal held that MIBI was entitled to have the reinstatement order set aside. It did not decide whether the court had jurisdiction to set aside a notice of discontinuance, saying it could assume that jurisdiction existed for the purpose of the appeal.

Higgins’s claim arose from a 2009 road collision in Galway. He said a car emerged from a junction into the path of his motorcycle and left the scene. He initially described it as a bright red car. His nephew later obtained a name and registration number that led to Patrick McDonagh, but the judgment records that the Gardaí had not identified another party to the collision.

The personal injuries summons, issued in 2019, named both MIBI and McDonagh. It claimed MIBI was responsible for McDonagh’s allegedly uninsured driving. AXA later confirmed that McDonagh was insured at the time, while saying he denied involvement in any accident. MIBI’s solicitors asked Higgins to discontinue the claim against it; his solicitors agreed, on the basis that MIBI would not seek costs. A notice of discontinuance followed in June 2019. McDonagh’s 2020 defence also denied involvement.

In July 2022, Higgins’s counsel applied to the High Court without notice to MIBI. The Court of Appeal said the hearing transcript suggested the judge understood the application as one to add MIBI as a defendant. The order recorded that MIBI was reinstated, but the appeal judgment noted that no leave to amend the summons had been sought or granted. MIBI later applied to set that order aside, and the High Court did so in June 2023.

The Court of Appeal rejected Higgins’s argument that MIBI’s solicitors had improperly led his legal team to discontinue. It said they had no duty to advise him to sue MIBI on the separate basis of an unidentified or untraced driver. It also treated the discontinuance as part of a valid compromise under which MIBI gave up its costs claim.

The court cited the delay in seeking reinstatement: the 2022 application came 22 months after McDonagh’s defence and more than three years after AXA had said he denied involvement. It also criticised making the application without notice and said the new unidentified-driver basis was distinct from the original claim against MIBI as the alleged insurer of an identified, uninsured driver. The three-judge court dismissed the appeal. It said separate proceedings naming MIBI as sole defendant might be the appropriate course in an unidentified or untraced driver case, but did not rule on any future claim.

Read the original court judgment

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