Michael Twomey: The High Court judge seen as a ‘crusader’ to cut litigation costs

If a poll was carried out to identify the High Court judge most popular with lawyers, particularly those involved in personal injuries litigation, it would be unlikely to be topped by Mr Justice Michael Twomey.

Referred to as “Tombstone” in some legal circles, the judge is perceived as being on a “crusade” to cut litigation costs across several High Court lists and to weed out what he considers to be unmeritorious or undeserving claims.

Along the way, he has at times been sharply critical of certain litigants, lawyers and professional experts, an approach that has attracted positive and negative responses.

In a judgment last December dismissing personal injury claims by two sisters over what he described as “a minor tip” where a man’s car bumped into the back of theirs, Mr Justice Twomey criticised the “inappropriate practice” of solicitors – rather than GPs – referring their clients to medical professionals.

Maureen Dowd: Trump’s line about being martyred always seemed risible but I guess it works with some people

---

Breda O'Brien: Are the mistakes of Junior Cycle reform about to be repeated in the Leaving Cert?

---

Kevin Barry: ‘I didn’t publish a book till I was 37. I thought I must have been an awful f*cking waster’

---

That drew the ire of well-known solicitor Cian O’Carroll, who said he was “shocked” at the judge’s comments. Failure to document a client’s injuries would amount to professional negligence on his part, the solicitor said.

Mr O’Carroll is not the only lawyer unhappy about the judge’s approach but few are prepared to go ‘on the record’ to voice criticism.

One senior counsel with decades of experience of personal injuries litigation said there is “a definite perception that the judge sees himself as on a crusade to tackle all the ills in the legal world”.

When Mr Justice Twomey is allocated to hear cases in provincial venues, that can spark “a flood” of applications by plaintiffs’ lawyers to have their cases listed in those venues adjourned to another date when they might be heard by a different judge, he said.

Other lawyers describe themselves as fans of the judge’s approach, with several describing it as a “common-sense” one.

Among the best known of Mr Justice Twomey’s decisions was his trenchant dismissal in November 2021 of separate damages claims by two women against Tipperary County Council over ankle injuries allegedly sustained after they fell, on different occasions, from a bird’s nest swing in a children’s playground.

The accidents, he said, were caused by two adults deciding to use equipment not designed for adult use. He said “common sense” would tell any adult they should not use a swing designed for use by children.

Not for the first time, he expressed concern about the “chilling” impact of such litigation, even when it fails, for the provision of play facilities for children and for the freedoms of all citizens. Such cases, he said, are more appropriately brought in the District Court where legal costs are much lower than in the High Court.

That judgment, welcomed by small business and insurers, was overturned last November, and a full retrial ordered, after the Court of Appeal ruled some of the judge’s findings were not supported by evidence.

Lawyers, with the ongoing approval of successive governments, were continuing to refuse to settle compensation claims before they got to court, Mr Justice Twomey said

All High Court judges are subject to having their decisions scrutinised by the Court of Appeal and, as is the situation with all judges, Mr Justice Twomey has had some decisions upheld and some struck down.

In an earlier decision in July 2021, the judge again voiced concern about litigation costs.

After dismissing a claim for damages by a man who sued his local authority and a householder after falling on a ramp, the judge said there was an inevitable injustice for defendants who do not “buy off” what they believed to be unmerited claims.

He awarded costs against the unemployed plaintiff but remarked it is a “win and no lose” situation for plaintiffs with little or no money and a “lose-lose” situation for defendants in such cases.

That case was brought by Edward Ronan, aged in his sixties, from Tincurry, Cahir, Co Tipperary, who sought damages for back injuries allegedly suffered after he fell on a concrete ramp between a road and footpath when he was visiting his sister in 2015. His case was against Tipperary County Council and Joanne Barrett, a neighbour of his sister and tenant of the council.

Many lawyers take the view that consent settlement orders are preferable to the alternative, having cases run, incurring costs and potentially further reducing the sums reimbursable

The defendants denied negligence and claimed the back injuries were suffered five years earlier when Mr Ronan fell down some steps outside a pub.

Based on various authorities, the judge set out the important principles in slip and fall claims – a plaintiff’s obligation to look where they are going, duty to take reasonable care for their own safety and the application of ‘common sense’ in personal injury claims.

The judge was not convinced by Mr Ronan’s evidence he had not seen the ramp on previous visits to his sister and said he did not believe Mr Ronan’s memory was “reliable”.

In an article about that decision, solicitor Richard Grogan, since deceased, described this as “a very common sense approach”.

In 2019, Mr Justice Twomey issued a practice direction aimed at reducing unnecessary litigation costs in Garda compensation cases. That was prompted by his concern about a “zero settlement rate” in those cases compared to a 90 per cent settlement level in other personal injury claims.

Lawyers, with the ongoing approval of successive governments, were continuing to refuse to settle compensation claims before they got to court, he said.

When case managing lengthy and expensive private commercial litigation arising from the activities of US fraudster Bernie Madoff, Mr Justice Twomey wondered aloud whether it was necessary to have so many lawyers involved in some pre-trial applications.

The “depth of the pockets” in the case was perhaps best illustrated by the fact one set of legal submissions had seven barristers - four seniors and three juniors - listed as co-authors of those submissions, he remarked.

In another commercial case last October, the judge stressed the privilege of being a limited liability company, “an idea first introduced to encourage enterprise and risk-taking”, should not be used to impose massive irrecoverable costs on defendants, irrespective of the outcome of litigation.

A judgment of Mr Justice Twomey’s in March 2022, in a case by Word Perfect Translation Services Limited v the Minster for Public Expenditure and Reform, has provided food for thought for lawyers.

It reiterated his concern, when the courts are dealing with both a shortage of judges and case backlogs, that scarce court resources should be only used when necessary “and only to the extent necessary”. He referred to the use of mediation and the desirability of confining litigation to the issues necessary to decide the disputes between parties.

When cases do not fall within those two categories, he signalled there may be “negative costs consequences” for the parties involved. The Court of Appeal has ruled, in another case, that a refusal by one party of an invitation to mediate the dispute should be met with costs award penalty of 10 per cent, he noted.

Having found inefficiencies in the approach of both Word Perfect and the State to the litigation before him, he concluded the State should be awarded 50 per cent of its costs in successfully defending Word Perfect’s case.

Lawyers have interpreted the decision as meaning alternative dispute resolution should be carefully considered before resorting to litigation, a winning party cannot depend on getting 100 per cent of its legal costs and the court will have regard to whether both sides conducted the proceedings in a cost-effective manner.

While many superior court judges have regularly stressed the need to avoid unnecessary costs, one of Mr Justice Twomey’s costs interventions has been publicly disagreed with by some of his High Court colleagues. That concerns his view that a 2005 law impedes the courts’ ability to make certain consent orders when personal injuries claims settle.

Consent settlement orders can have the effect of reducing the amount that insurers must reimburse the State for benefits paid to plaintiffs arising from their injuries. Many lawyers take the view that such orders are preferable to the alternative, having cases run, incurring costs and potentially further reducing the sums reimbursable, purely for the court to decide that discrete issue.

Mr Justice Twomey, having voiced concern in a judgment in late 2021 about consent orders, refused in another judgment in late 2022 to make a consent order as agreed between the parties.

The effect of the consent order meant the defendant insurer was only 50 per cent liable for the recoverable benefits.

The judge considered such an order resulted in the taxpayer footing the bill for what he said are essentially the “business expenses” of insurers.

Mr Justice Paul Coffey, who manages the High Court personal injuries list, and Mr Justice Anthony Barr have publicly disagreed with Mr Justice Twomey on the consent orders issue. Mr Justice Coffey has said Mr Justice Twomey’s interpretation of the 2005 legislation would have the “alarming” consequences of requiring parties to litigate for days or weeks in relation to cases or issues that had been lawfully and properly agreed between them.

There is no sign of the judge’s “crusade” tapering off.

In a judgment last month, he refused to grant an application from Michelle Hayes, a solicitor and president of Environmental Trust Ireland, to have the Environmental Protection Agency (EPA) and State pay her substantial legal costs of her failed bid to overturn a revised emissions licence granted by the EPA to Irish Cement Limited concerning a controversial waste incinerator at Mungret cement factory in Limerick city.

Because she brought the case on environmental grounds, Ms Hayes was entitled to a protective costs order (PCO), under the Planning and Development Act 2000, which meant she did not have to pay the costs of the EPA and State if she lost.

She argued she was also entitled to have the EPA/State pay her own substantial costs but the judge held against her on the basis of his view that she had abused the privilege of having costs protection by “wasting” court time, albeit unintentionally, in arguing some points not formally pleaded.

Ms Hayes has described the ruling as an “attack” on those seeking to protect the environment and an “attack” on legal professionals. She and her legal team are considering “the best way forward”, whether by an appeal or by involving the European Commission.