Irish Small and Medium Enterprises Association: Twomey Personal Injury Judgement

DUBLIN, Ireland, Sept. 23 -- The Irish Small and Medium Enterprises Association issued the following news release:

The reporting of the Twomey judgment by Charlie Weston in the last Saturday's Irish Independent raises a number of fundamental issues which are not being addressed in the current insurance reform process.

Firstly, the Twomey judgment torpedoes the continuous propaganda from the Law Society that the insurance issue is exclusively down to profiteering by insurers. The judgment makes explicitly clear what policy holders have known for a very long time: a minority of solicitors are actively engaged in the production of fraudulent or actively exaggerated claims before our courts. The claim in this case went to court because the defendant contested a sum of Euros400 to settle what she felt was effectively a no-damage collision between vehicles. Yet this Euros400 fender-bender morphed into two circuit court personal injury claims, both of which were appealed to the High Court. Furthermore, and despite the fact that the Circuit Court found that one of the cases was fraudulent, the plaintiff's lawyers sought exemplary damages in the High Court because the defendant raised the issue of fraudulence. This is lunacy.

Justice Twomey also noted the referral of both plaintiffs directly to medical consultants, for reasons he concluded were medical, not legal, in nature.

The Twomey judgment raises a number of professional conduct issues which the Law Society, and to a lesser extent the Bar Council, should be investigating as a matter of urgency:

* Are solicitors acting on behalf of clients incurring personal or legal responsibility for the fees and/or expenses of professional or other service providers, such as medical consultants, engaged on behalf of their client?

* Are solicitors taking any steps to verify the veracity of personal injuries claims before they ask their client to sign an affidavit of verification?

* Are solicitors instructing counsel to appeal to a higher court cases thrown out for fraud or lack of evidence, with the intention of forcing a blameless defendant into a settlement?

* Are solicitors contacting defendants who have been exonerated in court with a threat, explicit or implied, to appeal to a higher court if they do not make a cash settlement with the plaintiff?

* Are solicitors transacting 'referral fees' or any other form of payment, benefit, gift or emolument with medical professionals in exchange for referring personal injuries cases to them?

* Are solicitors transacting 'referral fees' or any other form of payment, benefit, gift or emolument with insurance brokers in exchange for information on potential personal injuries cases?

* Does the Law Society intend to revisit or remove the rule that solicitors may not sue each other for costs, even though such an action would be justifiable where one solicitor may be a party to a fraudulent action by an impecunious plaintiff?

The Twomey case is no outlier. The professional conduct noted in this case occurs on a daily basis in our personal injuries litigation system. What is unusual about the case is that it went through the Circuit and High Courts, with judgments in both. And Mr Justice Twomey has been unusually blunt in his opinions on the professionals involved.

ISME has reported the solicitor, the barrister, and the orthopaedic consultant in this case to their respective regulators for possible professional misconduct; we await with interest the outcome of those investigations. ISME has also referred the judgment to the Director of Public Prosecutions to investigate criminal actions by at least two parties involved in the case.

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- Fundamental issues in the current insurance reform process not being addressed.

- Twomey judgement makes clear that a minority of solicitors are involved in fraudulent claims.

- The Law Society must investigate these professional misconduct issues as a matter of urgency.

- ISME has reported the solicitor, the barrister, and the orthopaedic consultant in this case to their respective regulators for possible professional misconduct.