Only last month personal injuries practitioners were thrown into a spin with the decision of Judge Twomey in Kuczak v Treacy Tyres [Portuma] Limited (No2)  IEHC 619. In that decision Judge Twomey criticised the use of consent order to deal with certificates of recoverable benefits (often referred to as RBAs). We commented on this in our recent blog Who Benefits now?.
The decision left defence practitioners and insurers in a dilemma as to how to deal with cases where there was a large RBA that they would say should have been reduced for genuine reasons; for example as a result of a dispute on liability or if there was a dispute about whether the benefits were as a result of the accident or not.
The Court's reaction
The decision was to talk of the Four Courts and lead to many articles questioning what is next?
Well the answer was not long in coming!
Mr Justice Barr in Wilson v Leonard and Anor.  IEHC 670 and Mr Justice Coffey in Jarmula v DSG Solutions Limited  674 have questioned the approach taken by Mr Justice Twomey in the Kuczak case.
Mr Justice Barr in Wilson considered that it was appropriate for a court to grant a consent order "provided there was some rational and fair basis for making those determinations" using the analogy of infant rulings. He was far from convinced in the evidence that Mr Justice Twomey had referred to when suggesting the taxpayer was facing a €20 million shortfall due to the practice of seeking consent orders. In fact, he went so far as to suggest that the evidence amounted to "triple hearsay".
Mr Justice Coffey doubled down on this position in Jarmula. The practice of consent orders meant that parties could agree positions on negligence, causation and quantum. Mr Justice Coffey did not think it was for the courts to compel parties to litigate on specific issues. Similarly, to the position in Wilson, the judge was informed of the factual and legal basis upon which the apportionment was agreed and was content to grant the order. He did not consider a consent order did not fall under the terms of section 343R of the Social Welfare (Consolidation) Act 2005 and there was some requirement for some sort of adversarial hearing.
We consider that the decisions of both Judges represent a balanced and fair position for all parties including the state. It is correct that parties should be made to stand over how they have agreed such consent orders in a matter a kin to a Ruling in an infant manner as sort of check, but the suggestion that every time there was a RBA there required to be some sort of adversarial hearing to grant such an order was an impractical and unworkable position. In effect, it would have increased the Court's workload at a time where there is already pressure on Judge's time. It would be hoped that the ways of Mr Justice Barr and Mr Justice Coffey will be adopted in the Courts and accepted by the Department an reasonable manner in which to proceed.
Written by Neil Cahill.
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