The High Court has ruled that a court can make a consent order apportioning liability in a personal injury action, including where the order is sought solely to limit recoverable benefit payments under social welfare legislation.
Mr Justice Coffey delivered the judgment on 2 December 2022 in proceedings brought by Ewa Jarmula against DSG Solutions Limited. The action had settled. On 15 November, counsel for Jarmula applied by consent to strike out her claim and have her costs adjudicated if the parties could not agree, including reserved and discovery costs.
The parties had also agreed to limit the loss-of-earnings claim to €16,960, half the relevant claim. The judge was told that medical experts disagreed about how much of Jarmula’s continuing symptoms were related to the accident, creating a causation issue. The court made the orders sought, including a consent order apportioning liability for the loss-of-earnings claim on a 50/50 basis.
The judgment addresses a disagreement in earlier High Court decisions about section 343R(2) of the Social Welfare (Consolidation) Act 2005. That provision limits a compensator’s liability for recoverable benefits where the relevant compensation payment exceeds the amount ordered by a court or assessed by the Personal Injuries Assessment Board. Mr Justice Coffey preferred the reasoning of Cross J in Matthews v Eircom to the contrary approach taken by Twomey J in Kuczak v Tracy Tyres (Portumna) Limited (No. 2).
Mr Justice Coffey concluded that courts had jurisdiction to make consent orders apportioning liability before section 343R took effect in August 2014, and that the provision did not remove that jurisdiction. He also held that an order can be made by consent for the purpose of section 343R(2), without a fully contested hearing. The judge said the section gives legal effect to an existing court order but does not change the process by which the order is made.
The court was informed of the factual and legal basis for the agreed apportionment. The judge said practitioners should provide that information when applying for such orders, describing transparency as desirable. He added that a court retains discretion to refuse a consent order if no reason is given or the reason is unsatisfactory.
The defendant was directed to notify the Minister for Social Protection, who may seek to join the proceedings to correct a calculation error or challenge the jurisdictional basis of the order on appeal. The judgment did not decide whether this particular order qualifies as an order with the legal effect set out in section 343R(2); Mr Justice Coffey said that question can be decided only in appropriate proceedings in which the Minister is a party.