The High Court has refused an application to direct how issues should be decided at the future trial of a cyclist’s personal injuries action against Fingal County Council and the Motor Insurers Bureau of Ireland (MIBI).
In a judgment delivered on 21 December 2022, Mr Justice Garrett Simons ruled that the order in which the issues are addressed should be left to the trial judge. He refused the reliefs sought in the plaintiff’s motion of 14 December 2021. He did not decide liability for the accident or the disputes about MIBI’s role and the defendants’ responsibilities for any damages award.
The action concerns an accident on 29 May 2016. The pleadings allege that Kevin Earley collided with a pothole while cycling, was thrown over his bicycle’s handlebars and landed in a ditch before bouncing back onto the road. They allege that Fingal County Council failed to maintain the road and that an untraced motorist overtook dangerously, crossing a continuous white line without leaving Mr Earley enough room to avoid the pothole. These are allegations, not findings in this judgment.
MIBI contends that under its agreement with the Minister for Transport it should be the sole defendant in cases involving an unidentified or untraced vehicle owner and user. The council, which served a notice of indemnity and contribution on MIBI, does not accept that it would have to pay all damages if found partly liable. The judgment identified questions for the eventual trial about the agreement and the colloquially named “one per cent rule”; it did not resolve them.
The plaintiff’s original application sought a separate modular trial or, alternatively, a preliminary issue. It was later narrowed to a request for all issues to be heard together but for the council’s liability, if any, to be decided first. The judge said the action was expected to take one or two days and that the legal questions concerning MIBI were significant but not especially complex. He found no tangible time or cost benefit in directing the future judge’s sequence after the parties had prepared and presented all issues.
He also observed that the council’s potential liability would be difficult to assess apart from evidence about the accident, including the road’s condition, the motorist’s driving and the cyclist’s own care. He described that observation as an aside and reiterated that sequencing was for the trial judge.
The judge’s provisional view was that the council should recover its costs of opposing the motion, including written submissions. He considered MIBI did not appear entitled to costs because it had consented to the motion and did not actively participate at the hearing. Parties wishing to argue for a different costs order were directed to file short submissions by 30 January 2023. The judgment made no final costs order.