The High Court has ordered FBD Insurance to pay the plaintiff’s and South Dublin County Council’s costs after finding the insurer had not carried out a sufficiently thorough investigation before instructing solicitors for two co-defendants in a personal injury case.
In a decision on costs delivered on 5 June 2014, Mr Justice Hedigan said the insurer should have made further enquiries into alterations to the defendants’ home and the adjoining footpath. The court found that the changed appearance of the house, a new ramp and the pleaded case that the defendants had altered the footpath should have put the insurer on inquiry.
The underlying judgment, delivered on 14 March 2014, found for Elizabeth Berney against Des Gallagher and Emma Hutchinson, and dismissed her claim against South Dublin County Council. The court found that the accident was caused by misuse of the footpath as a vehicle entrance, together with heavy vehicles involved in construction of an extension. A footpath plate outside the defendants’ second entrance bowed, creating the lip over which Berney tripped.
Berney had initially sued the council alone and later joined Gallagher and Hutchinson. The council’s defence alleged that works by or for the couple, including creating a vehicular entrance without the council’s consent, had caused the footpath defect. The judgment records evidence from engineers about recent building work, a lowered kerb and heavy vehicles using the entrance. Hutchinson confirmed that construction traffic had used it over seven months.
FBD’s solicitors came off record for Gallagher and Hutchinson by order of Ryan J on 27 January 2014, after the insurer said it learned that Gallagher had altered the footpath, contrary to his earlier assertions. The costs judge said FBD had accepted his assurance that no work had been done between the footpath and roadway despite evidence that should have prompted further investigation. The judgment also records that the defendants did not respond to an insurer’s letter about the works; the court treated that as acceptance that they had misled their insurers.
The court ordered FBD to pay the full costs of defending the action for both Berney and the council, the costs of the application to come off record, and the costs of the costs application. It made no order for costs for an abortive application on 1 April 2014, which had not proceeded because Gallagher and Hutchinson were absent. The decision concerned costs arising from the solicitors’ withdrawal and did not alter the earlier findings on liability.