The Court of Appeal dismissed Lucas Waliszewski’s appeal after finding that he had agreed to discontinue it in exchange for the defendant not pursuing costs against him or his solicitors.
The court heard a motion by McArthur and Company (Steel and Metal) Limited seeking a declaration that the appeal had been discontinued or compromised, and an order dismissing it. The appeal followed a High Court judgment that dismissed Mr Waliszewski’s personal injury claim against his employer. The High Court had relied on section 26 of the 2004 Act and also stated that, even if it had not dismissed the case under that provision, it would have dismissed the claim because the likely cause of any back injury was something for which the employer was not liable.
The Court of Appeal’s motion concerned whether there was a valid appeal before it, not the evidence about Mr Waliszewski’s injuries. The court considered correspondence exchanged between the parties’ solicitors over three days in July 2015. On 1 July, solicitors who had helped Mr Waliszewski lodge his appeal said he had instructed them to file a notice of discontinuance and asked the employer’s solicitors to confirm that their client would not seek costs from him or the firm. On 2 July, the employer’s solicitors agreed, subject to receiving a filed notice by the following day. On 3 July, Mr Waliszewski’s solicitors sent a notice signed by him, stating that he wholly discontinued proceedings against the employer.
The notice was headed “The High Court”, but the Court of Appeal held that this did not affect its meaning in light of the correspondence and its wording. Kelly J said the agreement had been implemented by service and filing of the notice, bringing the appeal to an end. Irvine J and Hogan J agreed. Hogan J said the court lacked jurisdiction and that the purported appeal had to be dismissed.
The court therefore dismissed the appeal. It did not revisit the High Court’s decision on liability or determine Mr Waliszewski’s assertion that his injuries differed from those considered by the High Court judge.