The Role of Professionals in the Twomey Judgement

DUBLIN, Ireland, Sept. 24 -- 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 serious peripheral issues with the current insurance reform process, especially regarding the roles of professionals such as medical experts and insurers.

Some of the most serious commentary in Mr Justice Twomey's ruling is reserved for the consultant surgeon who produced three reports for a plaintiff whose case was, in the view of both the Circuit and High Courts, fraudulent.

The role of expert witnesses has been discussed ad nauseum throughout the current insurance reform process, but any suggestion that Ireland would employ independent expert witnesses has been rejected by the Personal Injuries Commission. In its first report, it stated:

'Legal advice received by the Department of Justice and Equality and the Department of Jobs, Enterprise and Innovation from the Office of the Attorney General in relation to use of such an expert panel was that the proposal to prohibit parties from using their own witnesses would affect a claimant's right to fair procedures and access to the courts, and also their rights to present their own evidence and challenge that presented by the opposing party. The introduction of a mandatory panel of expert witnesses would be an impermissible interference with a claimant's constitutional rights.'

It is a fascinating observation of the entire Cost of Insurance Working Group and Personal Injuries Commission processes, that any suggested interference in the rights of parties to conduct civil litigation without end is considered to be unconstitutional. ISME takes the opposite view: it is clear that allowing parties to endlessly litigate irrespective of the merits of that litigation inevitably disadvantages those of limited means, or those without access to no-foal-no-fee lawyers. We therefore call on the Government to release this legal advice from the Attorney General.

The Twomey judgment explicitly shows the limits of the 'adversarial expert witness system' which has been defended by Irish jurists as a cornerstone of our justice system. The failings in this case clearly outweigh the advantages of adversarial expert witnesses.

This is not news. The Law Reform Commission carried out an exhaustive (392 page) consultation on Expert Evidence in 2008 which concluded, in its chapter on Adversarial Bias, Partisanship and Conflicts of Interest that, 'It is clear from the foregoing that bias has proved to be a real and tangible problem in the giving of expert testimony in this jurisdiction.' This is more commonly known as the 'hired gun' problem, where experts deliver the evidence their party wants delivered, not evidence that is impartial, factual and truthful. This problem remains unaddressed in the current stalled reform process; it adds very significantly to the costs of litigation, and it must be fixed by the Justice Minister.

The Twomey judgment also raises issues for the conduct of insurers defending exaggerated and fraudulent claims. While the insurer is to be congratulated and commended for mounting a full defence in the O'Connell -v- Martin case in both the Circuit and High Courts, it is important for us to know:

* Has the insurer registered its judgment for costs against Ms O'Connell?

* Has the insurer instructed its lawyers to pursue Ms O'Connell's solicitor for costs incurred in defending a fraudulent action in the High Court?

* Has the insurer referred the case, and their own internal investigation, to the Garda Divisional Chief Superintendent in Limerick for criminal investigation?

* In the event that the insurer has referred the case to the Gardai, and the latter has decided not to proceed, has the insurer considered mounting a private prosecution of Ms O'Connell?

* Has the insurer made complaints to the relevant professional regulators about the conduct of the solicitor, barrister and medical consultant in this case?

Unless insurers take aggressive action against exaggerated and fraudulent claimants, we will not see an end to such claims. Insurers are duty-bound to follow every line of remedy available to them in tackling criminal behaviour. It is also incumbent upon the authorities to ensure our civil litigation system is run in a just and fair manner. Mr Justice Twomey comments on the legalised extortion permissible by our current system when he says: 'Real power is not merits of case, but legal costs inflicted by impecunious plaintiff.' In other words, a fraudster tried to extort settlement from an innocent driver by threatening Her with high Court costs. Nine times out of ten, this succeeds. The United States has introduced legislation specifically designed to prevent such fraudulent actions in the Lawsuit Abuse Reduction Act. Minister Charlie Flanagan is honour-bound to address this injustice here with similar legislation.

Finally, Mr Justice Twomey very explicitly restates the position of the Court of Appeal regarding Court of Appeal to award 'modest damages' for 'minor injuries'. In doing so, he reduced the award of the second plaintiff from Euros17,500 to Euros3,000, and asserted that the Circuit Court was obliged to follow the findings of the Court of Appeal in this regard. This is a significant finding by the High Court, which we hope will now be observed by all judges of the District, Circuit and High Courts.

* * *

- Serious peripheral issues with the current insurance reform process raised.

- Twomey judgment shows the failures of the adversarial expert witness system.

- Experts deliver evidence their party wants, not evidence that is impartial, factual and truthful.

- The Twomey judgment also raises issues for the conduct of insurers defending exaggerated and fraudulent claims.

- ISME hopes Judge Twomey's findings be observed by all judges of the District and Circuit Courts.