Trials and tribulations

There are many tactics employed in personal injuries litigation by both sides for the benefit of their clients. The tender offer, or lodgement is one of the most common defence litigation tactics and it can have serious consequences for the Plaintiff. A tender offer or lodgement is a formal offer made by the defendants setting out their settlement terms. If the Plaintiff accepts the tender offer the case is settled but should they choose to reject it and proceed to trial, and were the Court to award less than the tender offer, the Plaintiff would be liable for the defendant’s legal fees as well as their own from the date the tender offer or lodgement was made. Trials are generally costly affairs, particularly in the higher courts therefore the Plaintiff could be left with a substantial bill to pay from any damages they might be awarded. Lodgements are a commonly utilised tactic on both sides of the Irish border and the effect is the same across the board.

In October 2017 the High Court in Dublin awarded a woman €260,111 after she had to have a kidney removed following an operation at Aut Even Hospital in Kilkenny in April 2010. The women underwent a hysterectomy operation and sutures were inserted into the ureter leading from her bladder to her left kidney which caused damage to her kidney resulting it becoming necessary for it to be removed several years later. The woman pursued a medical negligence claim against her gynaecologist and the hospital. Liability was conceded and the case was before the court as assessment only.

Following the award of damages it was revealed that the defendants had twice made lodgements into court, declined by the Plaintiff, in excess of the sum awarded. Mr Justice Barr ordered that the Plaintiff was entitled to recover her costs up to 27th September 2016 when the first lodgement was made, but that the defendants were entitled to recover their costs from her from 28th September 2016 onwards. Both lodgements were for sums in excess the damages ultimately awarded by the Court with the first lodgement being €280,000 and this was subsequently increased to €450,000. Mr Justice Barr directed that both sets of costs should be taxed in default of agreement and offset against one another with the Plaintiff being responsible for any shortfall due to the defendants.

Litigation can be fraught with many pitfalls, even in cases where liability has been conceded therefore it is imperative that any potential claimant secures expert legal advice at an early stage. The lodgement or tender offer is a skilful tactic designed to apply pressure to the Plaintiff and the decision to accept or reject such an offer should only be made following expert advice. It is important to note however that there can be no guarantees in litigation and the damages awarded in Court can be affected by many factors, not least the evidence presented on the day and the trial judge drawn.

If you require advice on any litigation matter in Northern Ireland or the Republic of Ireland do not hesitate to contact one of our litigation team to look at your options.