Court of Appeal: Court identifies lacuna in legislation dealing with bogus evidence

About this case:

• Citation:
  [2026] IECA 95
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Charles Meenan

Delivering judgment for the Court of Appeal, Mr Justice Charles Meenan considered that s.26 of the Civil Liability and Courts Act 2004 “has its limitations in that it does not provide for a situation where a bogus claim is made without an affidavit of verification but then withdrawn”, noting: “This ought to be a matter that is addressed by way of making suitable provision by statute.”

Background

The respondent was involved in a road traffic accident with an unidentified driver in July 2015, from which he claimed to have sustained personal injuries.

At the time of the accident, the respondent was 49 years old. He originally operated as a stonemason until he encountered serious financial difficulties arising from the economic crisis, following which he began working in a Community Employment Scheme from 2012 and thereafter, set up a business bringing tourists on hunting trips.

At trial, a question arose as to whether the respondent’s change in employment arose out of injuries sustained in the accident which affected his ability to work as a stonemason, or by reason of economic circumstances.

In maintaining his claim for loss of earnings, the respondent furnished incorrect information to medical experts and his solicitors served particulars of special damage claiming loss of earnings in the sum of €621,388 based on the respondent working and continuing to work as a stonemason, which claim was abandoned the day before the trial.

The appellant, the Motor Insurers’ Bureau of Ireland (MIBI) had video evidence which appeared to show the respondent engaging in physical labour without any apparent difficulty.

The manner in which the respondent pursued his claim led to the appellant making an application to the trial judge pursuant to s.26 of the Civil Liability and Courts Act 2004 to dismiss the respondent’s action on the basis that the respondent supplied false or misleading information to the medical experts and had withdrawn his particulars of loss of earnings.

The High Court

The High Court dismissed the s.26 application, but was not persuaded as to the extent and effects of the respondent’s injuries and was unconvinced that many of the respondent’s symptoms were caused by the accident.

In the circumstances, the trial judge ordered the appellant to pay to the respondent the sum of €45,000 and made a differential costs order in favour of the defendant.

The appellant appealed to the Court of Appeal, with the grounds of appeal being focused on the trial judge’s refusal to accede to the s.26 application.

The Court of Appeal

Mr Justice Meenan analysed s.26 of the 2004 Act, noting that the section firstly concerns “evidence” given or adduced or dishonestly given or adduced by a party, and that secondly, the court must be satisfied that the evidence is false or misleading in any material respect, and that the party knows it to be false or misleading.

The judge explained that thirdly, even if the first and second elements of the application are satisfied, the action is not automatically determined and will not be dismissed if “for stated reasons, the court concludes that the dismissal of the action would result in injustice being done.”

The court also found it clear from the wording of s.26 that in deciding whether a plaintiff has given or adduced evidence or sworn a verifying affidavit that is false or misleading or acted dishonestly, “the test is subjective not objective.”

Emphasising the need for the trial judge to make an assessment of a plaintiff on a s.26 application, Mr Justice Meenan outlined that for an appellate court, this inevitably involves the application of Hay v O’ Grady [1992] 1 IR 210 which states inter alia that in circumstances where the appellate court does not have the opportunity to observe the demeanour of witnesses, if the findings of fact made by the trial judge are supported by credible evidence, the appellate court is bound by those findings.

Mr Justice Meenan remarked: “Without in any way questioning the trial judge’s conclusion, I have serious doubts about the reality of a trial judge reaching conclusions as to the veracity or reliability of evidence based on the “manner” and “demeanour” of the witness giving the evidence. Persons are appointed judges based, to a large extent, on of their knowledge and application of the law.”

The judge continued, “terms pertaining to the of the ‘manner’ and ‘demeanour’ of witnesses are used so as to reflect the dicta of McCarthy J. in Hay v O’Grady…but the fact is that such observations are rarely of assistance in determining whether any particular conclusion has been reached on the basis of credible evidence. The use of such terms as ‘manner’ and ‘demeanour’ may have the unfortunate effect of putting judgments beyond the reach of appellate courts.”

Being satisfied that the trial judge’s conclusions were reached following a rigorous assessment of the evidence, Mr Justice Meenan turned to the second aspect of the s.26 application, which concerned the respondent’s withdrawal of his particulars of loss of earnings.

The Court of Appeal agreed with the trial judge that while the respondent knew that there was no basis for the figures advanced, the claim had been withdrawn prior to trial and as such, there was no ‘evidence’ for the purposes of s.26(1) and no verifying affidavit for the purposes of s.26(2) in reliance on which the proceedings could be dismissed.

Mr Justice Meenan opined: “It is clear from the foregoing that s. 26 has its limitations in that it does not provide for a situation where a bogus claim is made without an affidavit of verification but then withdrawn” and that “This ought to be a matter that is addressed by way of making suitable provision by statute.”

The court expressed its agreement with the trial judge’s view that the service of incorrect particulars is not necessarily cured by their abandonment, as the appellant could have been seriously misled by the particulars and the actuarial report in determining whether to make a lodgement or settlement offer.

The court further determined that the trial judge was correct not to accede to the appellant’s submission that by discovering the respondent’s actuarial report, this amounted to an affidavit of verification. 

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Lynch v Motor Insurers’ Bureau of Ireland [2026] IECA 95