Supreme Court dismisses appeal on professional negligence where no evidence supports factual allegations against solicitor and doctor.

THE SUPREME COURT

[Appeal No: 227/2008]

Clarke J.

Laffoy J.

Dunne J.

Between/

ANTONIO CASIMIRO LOPES

Plaintiff/Appellant

and

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Defendant/Respondent

Judgment of Mr. Justice Clarke delivered on the 27th March, 2014.

1. Introduction

1.1. Just over a quarter of a century ago, a road traffic accident occurred. Surprisingly, legal issues arising out of that accident

remain before the courts. The plaintiff/appellant (“Mr. Lopes”) was injured in the accident. He instructed solicitor and counsel to bring

a claim for damages for negligence arising out of the accident and those injuries. Those proceedings were heard in the Circuit Court

and resulted in an award of IR£12,000 (IR£10,000 for general damages and IR£2,000 for special damages). Mr. Lopes was not happy

with his legal representation in that case and has pursued the remainder of the litigation, which I will briefly outline, on his own behalf

as a litigant in person.

1.2. First, Mr. Lopes brought professional negligence proceedings against the solicitor who acted for him in his personal injury action

and against one of his medical advisors, a consultant neurologist. In 1995, Morris J., in the High Court, dismissed both claims. While it

will be necessary to say a little more about the basis of the claim brought by Mr. Lopes in professional negligence in due course, in

simple terms, his allegation against his solicitor was that, as a result of instructions given by Mr. Lopes to the solicitor concerned, the

general evidence available and the prospect of obtaining further evidence, an application should have been made to remit the case to

the High Court and an expanded claim for damages, including, in particular, damages for loss of earnings, should have been pursued.

1.3. In 1996, this Court (O'Flaherty, Barrington and Murphy JJ.) dismissed an appeal brought by Mr. Lopes against that aspect of the

order of Morris J. which dismissed his negligence claim against his consultant neurologist. However, this Court (Murphy, Lynch and

Barron JJ.) allowed, in 1997, an appeal by Mr. Lopes against the dismissal of his claim against his solicitor and, in terms which remain

relevant to what now has to be decided, remitted the question of damages back to the High Court for assessment.

1.4. That assessment hearing was tried before Geoghegan J. in June and July, 1998. The Court's assessment of the full value of Mr.

Lopes' original injury claim (excluding special damages) was IR£52,125.47 (the equivalent of €66,185.69). That sum included the

IR£10,000 initially awarded in the Circuit Court for general damages but was in addition the sum of IR£2,000 awarded in the Circuit

Court for special damages. The High Court award was broken down as to IR£5,000 for loss of earnings, IR£7,125.47 for other special

damage together with IR£20,000 for pain and suffering to date and IR£20,000 for pain and suffering in the future together with loss of

earning capacity.

1.5. Mr. Lopes again appealed to this Court, this time against the award of Geoghegan J. The appeal was initially heard before

O'Flaherty, Lynch and Barrington JJ. However, for reasons which it will be necessary to address in due course, a second hearing was

required at which this Court (Hamilton C.J., Lynch and Barrington JJ.) allowed his appeal and substantially increased his damages to a

sum of IR£155,000. This was broken down as to IR£80,000 for past, continuing and future pain and suffering, IR£25,000 for past

special damages, principally if not exclusively loss of earnings, and IR£50,000 for future special damages, being loss of earning

capacity. Thus, the total sums recovered by Mr. Lopes were IR£157,000 or just short of €200,000.

1.6. It is necessary to comment that Mr. Lopes has, therefore, by diligence and the acquisition of no small knowledge of the law,

managed on two occasions, against the opposition of experienced counsel, to persuade this Court that decisions of the High Court

were wrong.

1.7. However, these proceedings involve a claim, commenced on the 26th March, 2007, brought by Mr. Lopes for damages under E.U.

law, under the European Convention of Human Rights (“ECHR”) and under the Constitution arising out of what he alleges was

discrimination against him by the courts in the various cases which he has brought. Certain more detailed claims are also made. The

particular focus of his allegation is that he was not, he argues, properly or adequately compensated, even after the substantial

increase in the award made to him by this Court on appeal, for future loss of earnings. He says that this result was due to bias and

discrimination against him and/or corruption and that the defendant/respondent (“the Minister”) is responsible in law for such losses.

1.8. The basis of Mr. Lopes’ claim that he was not properly or adequately compensated for future loss of earnings in the proceedings

against his solicitor as pleaded by him in the general endorsement of claim on the plenary summons issued in these proceedings on

26th March, 2007, and in the statement of claim subsequently delivered by him, following reference to the High Court proceedings

determined in 1995 and the appeal in the Supreme Court determined in 1997, is set out as follows:

“The issue here was whether the defendant was negligent for not having claimed claimant’s loss of earnings, in personal

injuries Claim in which he represented him following a Road Traffic Accident which left the claimant permanently disabled

to resume his career.

The defendant contested that he did not claim claimant’s loss of earnings because at the time of the accident he had

been sometime without exercising that job (for two or three years). The claimant argued that it does not matter

whether or not he was working at the time; the fact is that he is fully qualified as a navigator on ocean going vessels

therefore, if someone has permanently disabled him from resuming his career he is entitled to compensation. When the

appeal was heard in the Supreme Court in 1997, the Court found the defendant 100% negligent.

The Supreme Court judges decided that regardless whether or not the claimant had indicated his intention to resume his

career, the fact remains that he is fully qualified to do that job, therefore, it is obvious that if he had been in good

health he would have resumed his career as a navigator.

The Supreme Court then, remitted the case to the High Court to be dealt on the issues of damages only. The High Court

judge overruled the Supreme Court decision on the grounds that he believed that the claimant wouldn’t have resumed

his career anyway, and he refused to allow him any compensation for his loss of earnings.

Then, the claimant went back to the Supreme Court and the High Court trial judge decision was held, on the following

grounds: that the trial judge views that the claimant wouldn’t have resumed his career would stand.”

1.9 The primary relief which Mr. Lopes sought on the plenary summons was formulated as follows:

“The claim in this case is the difference between what the claimant would have received if he had not been

discriminated on the grounds of his nationality and the amount he was awarded on grounds of discrimination and in

particular his loss of earnings as a navigator on ocean going vessels.”

In the statement of claim, Mr. Lopes included an additional claim framed as follows:

“In addition to the claimant’s additional claim, the claimant seeks compensation of €1,500,000 Euros for inconvenience,

trauma and hardship sustained by him and his family during this period of uncertainty for him and his family future, due

to injustice and discrimination practiced (sic) against him by the judges who dealt with his cases, on the grounds given

above.”

Both the plenary summons and the statement of claim also included a claim for “payment for the work he did regarding

the case”.

1.10 Thus, the claim which Mr. Lopes brings in these proceedings in effect asserts that, had his original personal injury claim been

properly conducted he would have been awarded the full actuarial value of those earnings which he asserted he would have obtained

by returning to sea. His claim against his former solicitor suggested that the negligence of that solicitor led to him not obtaining

proper compensation for those lost earnings so that the measure of the damages to which he claims to have been entitled as against

his solicitor was said to include those same lost earnings. Thus, he claimed the full value of loss of earnings attributable to not being

able to return to sea as against his solicitor. In these proceedings, he asserts that a failure to award him that full value in those

proceedings was due to discrimination.

1.11 As appears from the relief claimed by him, as already cited, in substance what he sought was the difference between what he

says he should have been awarded were he not discriminated against and what he was actually awarded. In that context, it is

necessary to note what Mr. Lopes was actually awarded in that regard. In that context Lynch J. stated (at p. 20 of his judgment)

the following:-

“. . . I think it unlikely that the plaintiff would ever be fit to return to work as a seaman. While the finding of the learned

trial Judge that the plaintiff would not have returned to sea if he had not had the road traffic accident must stand, the

amount to be awarded for the loss of the opportunity of returning to sea in the event of unforeseen circumstances

arising must nevertheless be substantial.”

Later in the judgment, Lynch J. stated that the assessment of IR£50,000 for future special damages included “loss of opportunity to

work and to return to the sea”.

1.12 Finally, it should be noted, although this is a matter which will need to be addressed in more detail in due course, that the claim

which was put forward by Mr. Lopes against his solicitor sought the full actuarial value of what he asserted would have been the

earnings up to retirement date which he would have achieved had he returned to sea. Actuarial evidence was called in that regard.

1.13 Against the background of that claim, the Minister brought a motion before the High Court in which he sought either an order

under Order 19, Rule 28 of the Rules of the Superior Courts dismissing or striking out Mr. Lopes' claim on the grounds that it discloses

no cause of action, or, alternatively, an order under the inherent jurisdiction of the court dismissing Mr. Lopes’ claim on the basis that

it is an abuse of process and has no reasonable prospect of success or is bound to fail.

1.14 For reasons which it will be necessary to address, Hanna J., in a judgment delivered on the 11th June, 2008 (Lopes v. Minister

for Justice, Equality and Law Reform [2008] 4 I.R. 743), came to the view that the Minister’s application was well founded and

dismissed the proceedings. Mr. Lopes has appealed to this Court against that finding. As in all previous relevant proceedings, save the

initial Circuit Court personal injury action, Mr. Lopes represented himself on this appeal. He filed detailed written submissions and made

extensive oral argument. Much material was placed before the Court which it will be necessary to consider. However, before going on

to deal with the specifics of that argument, it is appropriate to start by referring to the jurisdiction of the Court to dismiss in cases

such as this. I, therefore, turn to that question.

2. The Jurisdiction to Dismiss

2.1 Applications to dismiss at an early stage of proceedings are, when brought, frequently based alternatively on the provisions of

O.19, r.28 of the Rules of the Superior Courts ("RSC") and the inherent jurisdiction of the Court. It is important to emphasise that the

inherent jurisdiction of the Court should not be used as a substitute for, or means of getting round, legitimate provisions of procedural

law. That constitutionally established courts have an inherent jurisdiction cannot be disputed. That the way in which the ordinary

jurisdiction of those courts is to be exercised is by means of established procedural law including the rules of the relevant court is also

clear. The purpose of any asserted inherent jurisdiction must, therefore, necessarily, involve a situation where the Court enjoys that

inherent jurisdiction to supplement procedural law in cases not covered, or adequately covered, by procedural law itself. An inherent

jurisdiction should not be invoked where there is a satisfactory and existing regime available for dealing with the issue under

procedural law for to do so would set procedural law at nought.

2.2 Against that background, it is important to distinguish between the jurisdiction which arises under O.19, r. 28 of the RSC and the

inherent jurisdiction often invoked. The inherent jurisdiction can be traced back to the decision of Costello J. in Barry v. Buckley

[1981] I.R. 306. However, that jurisdiction needs to be carefully distinguished from the jurisdiction which arises under the RSC,

precisely because it would be inappropriate to invoke the inherent jurisdiction of the Court in circumstances governed by the rules. In

that context, I said, at para. 3.12. of my judgment in the High Court in Salthill Properties Limited & anor v. Royal Bank of Scotland plc

& ors [2009] IEHC 207, the following:

"3.12 It is true that, in an application to dismiss proceedings as disclosing no cause of action under the provisions of

Order 19, the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that

they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim. However, I

would not go so far as to agree with counsel for Salthill and Mr. Cunningham, to the effect that the court cannot engage

in some analysis of the facts in an application to dismiss on foot of the inherent jurisdiction of the court. A simple

example will suffice. A plaintiff may assert that it entered into a contract with the defendant which contained certain

express terms. On examining the document the terms may not be found, or may not be found in the form pleaded. On

an application to dismiss as being bound to fail, there is nothing to prevent the defendant producing the contractual

documents governing the relations between the parties and attempting to persuade the court that the plaintiff has no

chance of establishing that the document concerned could have the meaning contended for because of the absence of

the relevant clauses. The whole point of the difference between applications under the inherent jurisdiction of the court,

on the one hand, and applications to dismiss on the factual basis of a failure to disclose a cause of action on the other

hand is that the court can, in the former, look to some extent at the factual basis of the plaintiff’s claim."

2.3 The distinction between the two types of application is, therefore, clear. An application under the RSC is designed to deal with a

case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as asserted, the case

nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in Barry v Buckley, an inherent

jurisdiction exists side by side with that which arises under the RSC is to prevent an abuse of process which would arise if

proceedings are brought which are bound to fail even though facts are asserted which, if true, might give rise to a cause of action.

If, even on the basis of the facts as pleaded, the case is bound to fail, then it must be vexatious and should be dismissed under the

RSC. If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus,

the proceedings are bound to fail on the merits, then the inherent jurisdiction of the Court to prevent abuse can be invoked.

2.4 It is important to keep that distinction in mind. It is also important to note the many cases in which it has been made clear that

the inherent jurisdiction of the court should be sparingly exercised. This was initially recognised by Costello J. in Barry v Buckley and

by the Supreme Court in Sun Fat Chan v Osseous Ltd [1992] 1 I.R. 425. In the latter case, McCarthy J. stated that “generally the

High Court should be slow to entertain an application of this kind”. This point has been reiterated more recently in Kenny v Trinity

College Dublin [2008] IESC 18 at para. 35 and in Ewing v Ireland and the Attorney General [2013] IESC 44 at para. 27.

2.5 It is also important to remember that a plaintiff does not necessarily have to prove by evidence all of the facts asserted in

resisting an application to dismiss as being bound to fail. It must be recalled that a plaintiff, like any other party, has available the

range of procedures provided for in the RSC to assist in establishing the facts at trial. Documents can be discovered both from

opposing parties and, indeed, third parties. Interrogatories can be delivered. Witnesses can be subpoenaed and can, if appropriate, be

required to bring their documents with them. Other devices may be available in particular types of cases. In order to defeat a

suggestion that a claim is bound to fail on the facts, all that a plaintiff needs to do is to put forward a credible basis for suggesting

that it may, at trial, be possible to establish the facts which are asserted and which are necessary for success in the proceedings.

Any assessment of the credibility of such an assertion has to be made in the context of the undoubted fact, as pointed out by

McCarthy J. in Sun Fat Chan (at p. 428), that experience has shown that cases which go to trial often take unusual turns on the

facts which might not have been anticipated in advance.

2.6 At the same time, it is clear that certain types of cases are more amenable to an assessment of the facts at an early stage than

others. Where the case is wholly, or significantly, dependent on documents, then it may be much easier for a court to reach an

assessment as to whether the proceedings are bound to fail within the confines of a motion to dismiss. In that context, it is important

to keep in mind the distinction, which I sought to analyse in Salthill Properties, between cases which are dependent in themselves on

documents and cases where documents may form an important part of the evidence but where there is likely to be significant and

potentially influential other evidence as well.

2.7 The allegation made by Mr. Lopes in these proceedings is, of course, one of fact. He asserts that the outcome of his litigation

was unjustly determined to his disadvantage by reason of bias, discrimination or corruption on the part of judges. There are a range

of legal issues which arise in that context, not least the question of whether judicial immunity from action would afford a defence and

whether, even if it does not, the Minister is vicariously liable for the actions of judges. Those questions raise important legal issues

but, before coming to those issues, it is necessary that there be a credible case on the facts as to bias, discrimination or corruption.

2.8 It seems to me, therefore, that this case is more appropriately considered under the inherent jurisdiction of the Court rather then

under the RSC. There is an allegation of bias, discrimination or corruption. If it is made out, then those difficult legal questions which I

have just mentioned will arise. But the necessary facts are pleaded and, therefore, for the purposes of an application to dismiss under

the RSC as vexatious, it would have to be assumed that those facts could be established.

2.9 On the other hand, so far as the inherent jurisdiction of the Court to protect against abuse of process is concerned, the Court

can at least consider whether there is a credible basis for suggesting that Mr. Lopes might be able to establish the facts which he

asserts. If there is no such basis, then these proceedings are bound to fail and their maintenance must, therefore, be an abuse of

process, such that the proceedings ought now be dismissed. It is true that Hanna J., in dismissing the proceedings, had regard to

some of the legal issues which might potentially arise in a claim such as this. However, for reasons which I hope to address, I am

satisfied that it would not be appropriate, in all the circumstances of this case, to dismiss the claim sought to be brought by Mr.

Lopes by virtue of forming a view that his claim was bound to fail on the law. Rather, it seems to me that the judgment of Hanna J.

should only be upheld if it is appropriate to agree with the conclusions which he reached to the effect that there was no credible

basis, on the facts, on which Mr. Lopes could hope to establish bias, discrimination or corruption. It is to that question that this

judgment is directed. As the principal complaint which Mr. Lopes makes centres on the way in which his claim for damages for loss of

earnings was assessed, I would, before going on the consider the credibility of his accusation of bias, feel it appropriate to make some

general observations about the way in which claims for damages for loss of earnings are dealt with in the Irish legal system.

3. Damages for Loss of Earnings

3.1 Claims for loss of earnings are commonplace in personal injury litigation. That is hardly surprising. Persons who suffer even

relatively modest injuries are often prevented from working for a period of time and may, as a result, suffer losses. At one end of the

scale, a claim may simply be for losses incurred over a short period when the relevant claimant was out of work and not paid. In such

cases, the claim is likely to be supported by medical evidence to suggest that it was reasonable for the claimant to be absent from

work, as a result of injury suffered in the accident the subject matter of the proceedings, for the period in question, together with

evidence (for example from the claimant's employer) as to the amount of salary lost. Indeed, in the experience of this Court, in

routine cases, such amounts are often agreed (without admission of liability) between the parties without the need to produce any

evidence. If the claimant succeeds on liability, the agreed amount is then included in the damages awarded.

3.2 At the other end of the spectrum, there are, however, cases where it is asserted that a claimant, because of their injuries, will

suffer future long-term financial loss. Such a claimant may contend for a complete incapacity to work or alternatively may maintain

that they have a permanently reduced working capacity. The latter type of claim may be based on an alleged inability to work full

time or alternatively on the grounds that, because of their injuries, they will in the future only be fit to do a less demanding and less

well paid job. It is important, in that context, to set out the evidence which as a matter of common practice, is tendered in such

cases in order to justify any such a claim.

3.3 In all cases where any significant future loss of earnings claim is made, it is necessary for the claimant to produce medical

evidence to support the claim they make in respect of their inability to work. However, while doctors are well qualified to detail their

views as to the extent of a claimant’s injuries and to advise as to whether these are likely to improve in the future, they are not best

qualified to give evidence as to whether those injuries should necessarily preclude their patient from doing the job they had when

they were injured nor advise on their potential ability to carry out other types of work. There will be exceptions to that proposition.

The hand surgeon will be able to conclusively state that his patient, a concert pianist, who has lost his index finger, will not be able

to work in that capacity for the rest of his life. But he will not be able to advise the court as to what if any other type of employment

he may be able to do in the future having regard to that injury.

3.4 What type of future employment a claimant may be able to undertake in the future, having regard to their injuries, is extremely

important because all claimants must seek to mitigate their losses. They are under an obligation to do such work as might reasonably

be expected of them notwithstanding their injuries and thus reduce the amount of their loss of earnings claim. Once a claimant has a

capacity to work at any level into the future, the maximum they will be able to recover is the difference between what they would

have earned but for their injuries and what they will be able to earn having regard to their injuries.

3.5 In these circumstances, it is the invariable practice in this jurisdiction for claimants who make any substantial claim for future loss

of earnings not only to call medical evidence to endorse the extent of their injuries but also to call an expert in vocational/

occupational assessment. This expert witness will advise the court as to progression that the claimant was likely to enjoy in their

career had they not been injured and as to how this progression would have impacted on their earnings. They will advise as to the

age at which the claimant might have expected to retire, the type of pension they would have enjoyed and as to the likely continuity

of that employment. Such a witness will also give expert evidence as to the type of employment, if any, which the claimant ought to

be able to carry out in the future having regard to their injuries, and they will advise the court as to the rates of pay that pertain to

that particular type of job. They will also advise on matters such as the availability of work of a type that would suit a particular

claimant having regard to their injuries, and the volatility of any particular type of employment, including that which the claimant was

working at prior to their injury.

3.6 The focus of the vocational evidence is to try to work out the likely annual net earnings that a claimant would have enjoyed for

the rest of their working life were it not for their injury and to establish how much money, if any, they are likely to earn in the future

having regard to their injuries. The claimant, if their evidence withstands attack, will expect to recover something close to the

difference in these sums, subject to a further deduction which will be made to reflect the risk that, for a whole range of reasons, no

one can be certain that they will be able to work until normal retirement age. They may for example get something such as cancer or

may have a sick child who will need their full time care and they may have to leave the workforce prematurely.

3.7 The aforementioned evidence is almost always extremely contentious with competing expert views, from both medical and

occupational experts, on the precise extent to which it can properly be said that a plaintiff is unable to work and the extent to which

it might be reasonable to expect the plaintiff concerned could obtain other, although sometimes less remunerative, work.

3.8 The reason for such disputes is obvious. To take a case at one end of the spectrum, one might envisage a claimant who was in

permanent and secure employment prior to the accident giving rise to a claim. In order to be able to maintain a claim for the full

actuarial value of the salary which that claimant was enjoying prior to the accident in question, a range of issues are likely to arise. A

claim for the full actuarial value of lost salary necessitates actuarial evidence concerning life expectancy and mathematical

calculations based on appropriate assumptions. In many cases, it will be necessary to present evidence of fact to substantiate at

least some of those assumptions. In typical cases, these may include any or all of the following:-

a. Was the loss of the claimant's existing job truly attributable to the accident;

b. What was the likelihood of the plaintiff being able to remain in such permanent and secure employment up to normal

retirement age? In that context, the courts have consistently recognised that, depending on the security of the

employment concerned and any other relevant factors, it may be appropriate to make a reduction from the full actuarial

value to reflect the risk that the person concerned might not, even had there been no accident, have remained in full

employment for the duration of their normal working career;

c. Whether there was any employment which, having regard to any medical condition attributable to the accident, it

might be reasonable to expect the claimant to obtain, and whether it is appropriate to make a further deduction (often

significant) to reflect the fact that the plaintiff has not lost the entire value of their net earnings but rather only a portion

of same? In that context, not only other types of employment not impaired by what ever injuries may have been suffered

but also less strenuous (including part-time) employment needs to be considered. It is incumbent on a claimant, who

wishes to assert the full value of an actuarially calculated loss of income, to satisfy the Court that they have truly lost

that full value.

3.9 All of those considerations apply even in the straightforward case where a person was in permanent and secure employment at

the time of the accident in question. Where a person was not in such employment, then the question of calculation of damages for

loss of earnings becomes even more problematic. In such circumstances, it is incumbent on the plaintiff to put forward evidence to

allow the Court to estimate the likelihood of them obtaining employment of any particular type had it not been for the accident.

3.10 In addition, other factors can loom large on the facts of any individual case. It is, however, important to emphasise that issues

of the type just identified are commonplace in significant personal injury litigation in this jurisdiction where the claim put forward

suggests that the plaintiff is entitled to the full actuarial value of lost income.

3.11 One further important aspect of the way in which such cases are typically assessed needs emphasis at this stage. There

frequently is an issue as to whether it is appropriate to permit actuarial evidence at all. In order for actuarial evidence to be

admissible, it is necessary that the plaintiff lay the ground for same. In general terms, the Court will only engage in an actuarial

assessment where there is a sufficient level of certainty, both concerning the income lost and any income which might be expected

to replace it in the light of the plaintiff's obligation to mitigate damage, to justify an actual and detailed calculation. In other cases,

where the requisite level of certainty cannot be established, the Court approaches the question of future loss of earnings on a

different basis by attempting to award a round sum in general damages to reflect the loss of opportunity to earn which the relevant

plaintiff has suffered. The reason for the difference in approach is simple and straightforward. In some cases, the calculation is

capable of being done with a sufficient level of precision to make it meaningful to approach it as a relatively precise calculation,

capable of actuarial assessment, even though it may be necessary to make appropriate reductions for matters such as the risk that

someone might not have, even in the absence of the relevant accident, worked for the entirety of their life up to normal retirement

age or the like. In other cases, such a calculation is simply fraught with so many imponderables and variables that it is unrealistic, and

ultimately, therefore, unjustified, to attempt to do a rigorous calculation, for to do so would be to imply that the losses were capable

of being determined with the requisite degree of precision.

3.12 Finally, it needs to be noted that, in some cases, the actuarial evidence is not admitted at all, even though sought to be led on

behalf of the plaintiff, because the Court is not satisfied that, even taking it at its height, the plaintiff's other evidence could be

sufficient to justify an actuarial calculation. In other cases, the court admits the actuarial evidence but, when it has had the

opportunity to review the totality of the evidence, finds that it should not carry out an actuarial calculation for the range of

imponderables are such as make such a course of action unjustified.

3.13 Against that background, it is necessary to consider the evidence, or potential evidence, on which Mr. Lopes seeks to rely in

order to establish that his claim for bias is not bound to fail. I will start by making some general observations on the way in which Mr.

Lopes suggests he can establish his claim.

4. Some General Observations

4.1 Mr. Lopes put forward, at least before this Court, a significant volume of documentation together with written commentary. The

documentation referred to includes extracts from the transcripts of various hearings and, in particular, the assessment of damages

trial conducted by Geoghegan J. In addition, documents relevant both to the conduct of the various hearings and the assessment of

damages itself were made available. Mr. Lopes filed a lengthy document setting out the basis on which it was asserted that Hanna J.

was incorrect in dismissing his claim. For reasons which I hope will become obvious, I propose to pass over some parts of the ruling of

Hanna J. and the submissions made in respect of same.

4.2 First, insofar as there was a question that the claim which Mr. Lopes sought to bring at this stage might be statute barred,

counsel for the Minister indicated that the Minister made no such assertion and, therefore, I do not consider it appropriate to

determine, on this application, whether the claim is statute barred. This appeal must progress on the assumption that Mr. Lopes' claim

is not barred by any limitation period. Second, Hanna J. placed reliance on the immunity of judges from suit. This question, coupled

with the issue as to whether the Minister can be vicariously liable for the acts of judges, raises important legal questions both under

the Constitution, Irish law generally, and, perhaps, under the ECHR (although the question of whether any rights which Mr. Lopes may

enjoy under the ECHR can be pursued in this case in Irish domestic law, by virtue of the fact that any events of which he complains

predates the European Convention on Human Rights Act 2003, is highly problematic). However, precisely because of the complex legal

issues raised under this heading, I do not feel that it would be an appropriate exercise of the Court's jurisdiction (to dismiss on the

grounds of being bound to fail), to dismiss these proceedings on those legal grounds. If there were a credible or stateable basis for

suggesting that bias, discrimination or corruption could be made out, then it would, in my view, be appropriate to allow the case to go

to a full trial at which there could be a detailed consideration of the facts and a determination of those complex legal issues in the

light of whatever facts might be established.

4.3 For those reasons I propose only to consider whether Hanna J. was correct in deciding that there was no credible basis for

suggesting that Mr. Lopes could be able, at a full hearing, to establish the bias, discrimination or corruption which he alleges.

4.4 In that context the question of the extent to which this may be said to be a documents case is of some relevance for if the case

were to turn significantly on the credibility of oral evidence to be tendered, then that would be a material factor which would weigh

against the Court attempting to reach any view on the likelihood of the case being capable of being established on the facts. As

noted earlier, a distinction is noted in Salthill Properties between the type of documents case where the legal rights and obligations of

the parties depend on the documents themselves (such as contract cases where the contract is in writing) and the type of

documents case where the documents do not define legal rights and obligations but may be important in determining the facts. This

case is, in my view, something of a hybrid between those two positions but is towards the end of the spectrum where it can properly

be said that the case will actually turn on the documents rather than on any oral evidence. This is so because the great majority of

the complaints made by Mr. Lopes and the evidence or materials on which he relies to support his allegations involve references to

transcripts, the record of proceedings, and documents referred to in those proceedings. This is not, or at least not to any material

extent, a case where a determination of the facts depends on hearing oral evidence and assessing the credibility of witnesses. Rather

it is a case where the factual allegation is dependent on what actually occurred during various court hearings. What occurred is to be

found in the court record and in the transcripts. Either that record and those transcripts are sufficient to provide Mr. Lopes with a

case which is not bound to fail on the question of bias or they do not. That question can be assessed by considering the

documentation concerned in the light of the submissions and arguments made both by Mr. Lopes and the Minister.

4.5 For completeness, it is also important to observe that, to the extent that there might be any evidence (as opposed to argument)

put forward by Mr. Lopes himself, then any assessment of whether his claim is bound to fail must, of course, take that evidence at its

high water mark. In the light of those observations, it is necessary to refer to the specific aspects of the hearing before Geoghegan J.

and the appeal to this Court which Mr. Lopes asserts provides evidence of bias, discrimination or corruption. It is also important to

emphasise, in that context, that this Court is not now concerned with whether those allegations are made out but rather is only

concerned with whether any or all of the arguments and materials put forward are such as lead to a credible basis for the possibility

that Mr. Lopes might succeed in establishing those allegations so as to render it impossible to say that his claim is bound to fail.

5. The Basis for the Allegations

5.1 It is important to start by recording the materials which were placed before the Court on this appeal by Mr. Lopes in addition to

the pleadings and the motion papers. These materials included two Books of Appeal, “Supreme Court/Book of Appeal” and “Supreme

Court/Book of Appeal No.2” (containing inter alia the pleadings, transcript extracts from the High Court hearing before Geoghegan J.,

correspondence between Mr. Lopes and various Government departments and the office of the President, correspondence from Mr.

Lopes to Geoghegan J., relevant certificates of disability; references to various provisions of the European Treaties and the Charter of

Fundamental Rights, and extracts from European case-law); the High Court Book of Pleadings; two booklets of case law (to

supplement the joint book of authorities); the full transcript of the High Court hearing before Hanna J.; and an 81-page “Written

Submission” with an accompanying “Book of Evidence” of 78 pages to substantiate it (which again included transcript extracts and

authorities). Although sometimes difficult to pinpoint, Mr. Lopes’ points of legal argument are contained in the pleadings and his

written submissions, and are supported by the case-law he relies upon in the various books of authorities and Books of Appeal. The

relevant evidence in support of his legal arguments is primarily to be found in his Book of Evidence and the transcript extracts

contained in the Books of Appeal.

5.2 While a significant number of separate points were put forward by Mr. Lopes, it is important to consider, at least initially, each of

them on an individual basis. It is, of course, the case that a range of individual occurrences, no one of which taken by itself might be

sufficient to warrant a finding of bias, discrimination or corruption, may nonetheless cumulatively allow a court to reach a conclusion

that such allegations have been made out. On the other hand, it also needs to be acknowledged that, as Denham J. pointed out in

Bula Ltd v Tara Mines Ltd (No.6) [2000] 4 I.R. 412 at p.462, “seventeen noughts are still nothing”. Thus the fact that there may be a

large number of allegations, or that attention is drawn to a large number of separate items which are said to give rise to an inference

of wrongdoing, cannot, as a matter of logic, in itself, demonstrate that a claim is not bound to fail. If none of the instances put

forward are capable of giving rise to an appropriate inference, then the fact that there may be many of them is neither here nor

there. The proper approach is, therefore, to look at each of the materials which, it is suggested, might lead to a conclusion of bias,

discrimination or corruption. Each needs to be assessed as to whether any weight can be attached to same. To the extent that some

weight may be attached to all or some of them, then, but only then, should the Court assess the cumulative effect of such matters

keeping in mind, of course, that, on this application, the threshold which Mr. Lopes would require to pass is a very low one, being

simply that his allegation is not bound to fail.

5.3 As noted earlier, the materials placed before the Court by Mr. Lopes are somewhat disparate. However, I have attempted to distil,

from those materials, and from the oral submissions made before the Court by Mr. Lopes, the points which he urges provide, or at

least potentially provide, a basis for suggesting that his factual allegations are not bound to fail.

5.4 However, I will first turn to what was, in the oral submissions made by Mr. Lopes, the single most significant point relied on and

one which influenced some of the other contentions which he made. That allegation is that Geoghegan J. ignored the previous

judgment of the Supreme Court which remitted the matter back for assessment of damages. It is said that such a course of action is

so inappropriate on the part of a High Court judge that it bears the inference that the judge must have been biased or corrupt to

adopt such a course of action. However, the starting point has to be to consider whether, on the facts, there is any credible basis

for suggesting that Geoghegan J. ignored or went against the earlier ruling of this Court.

6. Did Geoghegan J. "overrule" the previous judgment of the Supreme Court?

6.1 The starting point has to be to recall the sequence of events. Mr. Lopes had lost his claim on liability in his negligence claim

against his solicitor in the High Court. He succeeded on appeal to this Court. This Court, on the occasion in question, consisted of

Murphy, Lynch and Barron JJ. Each delivered a judgment. Not surprisingly much of each of the judgments was concerned with the

question of whether the High Court was wrong in finding that Mr. Lopes' former solicitor was not guilty of negligence. Barron J., at p.

20 of his judgment, did note that a central problem was "the failure to claim loss of earnings as special damage". It is also clear from

the judgment of Barron J. that it was accepted that Mr. Lopes had given instructions to his solicitor to have the case transferred from

the Circuit Court to the High Court. Barron J. noted that the solicitor concerned should either have carried out those instructions by

gathering additional medical evidence and evidence to support a claim for loss of earnings or else withdrawn from the case. Barron J.

also noted that the reality of the loss of earnings was never properly explored.

6.2 Mr. Lopes places special reliance on the way in which Barron J. dealt with the question of loss of earnings. It is appropriate to

quote the full relevant passage which commences at p. 17 of the judgment:-

"There was not originally nor was there ever any particulars of special damage given as to loss of earnings. Why this is

so has never emerged in the evidence that was given at the trial. It was clear to the defendant and to the plaintiff's

former solicitor that he had been unable to keep his newsagent shop open and that he had lost income as a result. I am

aware that it is said that no claim could be made because there were no records. Again the evidence is that the plaintiff

offered records and the defendant said that he did not require them for the present. Even if no records had been

available this of itself did not mean that the Court or such court that would hear the matter could not do its best to

arrive at a fair result. Even if the plaintiff had never expressed, prior to the accident, any intention of returning to sea

and the view was taken that the business would have failed any way the fact would still have remained that had he been

in full health and his business had failed for economic reasons he would have been in a position to return to sea.

Accordingly, as a result of the failure of his business he was either entitled to the loss of profits which he was earning

from his business or the loss of profits which he would have obtained had he been physically fit to return to sea. There

was also evidence to the effect that he had bought what is commonly known as a chipper. This however was being run

by somebody else so that he did not have all the profit of that enterprise as a substitute for the profits of his shop.

Whatever may have been the realities of the situation it is strange that no effort was ever made to set out the loss of

earnings as a particular of special damage."

6.3 However, it is also important to refer to the final conclusions of Barron J., which start on p. 24 of his judgment, in which he

indicates that he "would allow the appeal and remit the matter to the High Court to assess damages upon the basis of the evidence

to be adduced". In that context Barron J. indicated the Mr. Lopes should have liberty to amend the details of his claim.

6.4 While Mr. Lopes places particular reliance on the judgment of Barron J., it is also important to note that both of the other judges

gave separate judgments.

6.5 Lynch J., in setting out his reasons for finding that Mr. Lopes' former solicitor was negligent, concluded that, rather than allowing

the original trial of Mr. Lopes' claim for damages to go ahead in the Circuit Court, an adjournment should have been sought which

would, in the words of Lynch J., "have enabled up to date medical reports to be obtained; the issue of negligence to be clarified; and

the question of loss of earnings to be properly considered and pleaded" (see p. 9). In conclusion, Lynch J. indicated that he would

allow the appeal and "send the matter back to the High Court for trial on the issue of damages only" with permission to Mr. Lopes to

amend his statement of claim.

6.6 There is absolutely nothing in the judgment of Lynch J. to suggest that he made any finding to the effect that Mr. Lopes was

necessarily entitled to recover damages attributable to loss of earnings in the context of his claim in negligence against his solicitor.

Rather what Lynch J. found was that the solicitor in question was negligent in not exploring properly the question of the extent to

which loss of earnings might be capable of being recovered. It obviously follows that, in Lynch J.'s view, any claim for loss of earnings

which might have been capable of being pursued was lost due to the negligence of the relevant solicitor and could, if it be

established, be recovered in damages against that solicitor. However, he made no finding that such losses necessarily did arise and

clearly referred back, to the High Court, the question of whether such damages were, in fact, lost.

6.7 Murphy J. was in a minority in holding that Mr. Lopes' appeal should be dismissed. He placed particular reliance on the evidence

which had been given at the trial before Morris J. from the experienced counsel who had acted on Mr. Lopes' behalf in his personal

injury action. Because of the views which Murphy J. took on the question of negligence, he did not express any direct view on the

question of an entitlement to damages for future loss of earnings. However, given that Murphy J. was of the view that there was no

negligence in the way in which the original claim for damages as a whole was put forward, it must necessarily follow that Murphy J.

did not consider that Mr. Lopes was necessarily entitled to damages for future loss of earnings even if negligence were established.

6.8 That review of the judgments of this Court makes clear that there was no finding to the effect that Mr. Lopes was entitled to

recover from his solicitor damages based on a loss of earnings claim attributable to such earnings as he might have obtained had he

returned to sea. There is no mention of any such finding in either the judgments of Lynch J. or Murphy J. While Barron J. does, in the

passage already quoted, make mention of the fact that Mr. Lopes would be entitled to loss of profits from business or loss of profits

which he would have obtained had been physically fit to return to sea, those comments are clearly made in the context of dismissing

arguments put forward on behalf of the defendant solicitor to the effect that there was no point in pursuing such claims because of

the fact that there were no records of the business and that Mr. Lopes had not expressed, prior to the accident, any intention of

returning to sea. In substance, I do not read the comments of Barron J. as going further than making clear that, at the level of

principle, neither the absence of such records or prior comments concerning return to sea would have been fatal to any claim to loss

of earnings which Mr. Lopes might want to pursue.

6.9 On that basis, and as part of the analysis as to why his former solicitor was found to be negligent, it was held that the relevant

solicitor ought to have investigated the extent to which such a claim for future loss of earnings could have been pursued. It is reading

far too much into a single sentence from the judgment of Barron J., taken out of context, to suggest that it represents a formal

finding of even that judge to the effect that Mr. Lopes was necessarily entitled to recover loss of earnings on the basis of a return to

sea. Indeed, Barron J. himself went no further than commenting that Mr. Lopes might be entitled to either those losses or losses

arising from the collapse of his business. If there could be any doubt about this matter, it is, in my view, resolved by the final

conclusions reached by Barron J. which must be taken to form the operative part of his judgment. The order suggested by Barron J.

was that the matter be referred back to the High Court to be decided on the evidence. There is nothing in that section of the

judgment which suggests that Mr. Lopes was other than obliged to put before the High Court any evidence which he might have

concerning his losses, that the High Court was to come to its conclusion on that evidence, and that there was no predetermination as

to the way in which the High Court should approach that evidence.

6.10 In addition, even if it were possible to read into the judgment of Barron J. an indication that, in his view, there should be a

binding decision of this Court to the effect that Mr. Lopes must be entitled to recover for loss of earnings (which it is not), it is

absolutely clear that Barron J. would, in that eventuality, have been in a minority on the Court and his judgment could not, in those

circumstances, even if it were to be construed in that way, amount to a judgment of this Court.

6.11 In that context, Mr. Lopes suggested that it would, even in that eventuality, be wrong for Geoghegan J. to have come to a

different view than that of Barron J. by virtue of the fact that Geoghegan J. was, at that time, a judge of the High Court, while

Barron J. was a judge of the Supreme Court. That is, unfortunately, a complete misunderstanding by Mr. Lopes of the legal position. It

is true that lower courts, in our system and in many others, are bound by the decisions of higher courts. It is, however, the actual

decision of the higher court itself (rather than the views of individual judges of those higher courts - where the court concerned

consists of more than one member) to which that principle applies. A judge of a lower court is not, in any way, bound by the views of

a judge of a higher court which does not represent the majority view of that court (and thus form part of the decision of that court).

6.12 In those circumstances, it seems to me that there is just no factual basis for the suggestion made by Mr. Lopes to the effect

that Geoghegan J., in any way, disregarded or disapplied the previous judgment of the Supreme Court. The suggestion that such

occurred is based on a misreading and misunderstanding of what the Supreme Court said. In that context, it is striking that the only

quotations made by Mr. Lopes in the significant volume of documentation from the previous judgment of this Court which he placed

before the Court in the Books of Appeal were taken from the judgment of Barron J. Mr. Lopes appears to have totally ignored the

other judgments of the Court while describing the reasoning of the Court as to be found in the judgment of Barron J. As indicated

earlier, I am not, in any event, satisfied that Barron J. was in significant disagreement with the other members on the future loss of

earnings question. However, even to the extent that Barron J. might have expressed a different view from the other members of the

Court, this cannot, as Mr. Lopes sought to argue, therefore, represent the ratio of the Court. That deals with para. 5, ground (b) in

the submissions made by Mr. Lopes to this Court. The factual basis for that submission is unsustainable and the legal issues which he

seeks to raise do not, therefore, arise.

6.13 While still on this general topic, I propose to deal with a related point whereby Mr. Lopes seeks to raise, at para. 5, ground (c),

what he suggests is a claim that Geoghegan J. "deviated from a proper course" and, indeed, changed his mind in the course of the

action being at hearing. Reference is made to p. 26 of the Book of Evidence where Geoghegan J. made a ruling admitting actuarial

evidence following an objection by counsel for the defendant to Mr. Joseph Byrne, actuary, being called as a witness. I have

explained earlier in this judgment the circumstances in which there may be a debate concerning the admission of actuarial evidence.

Such evidence may be excluded when the relevant plaintiff has not put forward an arguable case for the proposition that future loss

of earnings, capable of being calculated with some degree of precision, might be allowed. The fact that such actuarial evidence is

admitted is no more than a decision by the trial judge that it is possible that actuarially calculated future loss of earnings may be

allowed. It does not amount to a finding that actuarially calculated future losses will, in fact, be allowed. Indeed, this is all that

Geoghegan J. said at p. 26 of the Book of Evidence. Geoghegan J. pointed out that Mr. Lopes had made out an arguable case for the

admission of actuarial evidence. He did no more than that. The fact that, when all the evidence had been heard, that case was not

accepted is not unusual. Events such as that are common place. Evidence is permitted on the basis that there is an arguable case for

a proposition but ultimately the proposition, in the light of all the evidence, is not accepted. The point made at ground (c) is,

therefore, misconceived. Having dealt with those two points, being grounds (b) and (c) in para. 5 of Mr. Lopes' written submissions, I

now propose to turn to the remaining bases put forward for suggesting that there is a credible case to the effect that Mr. Lopes

might be able to establish bias, discrimination or corruption at a full trial.

7. The remaining grounds on which it is asserted that Geoghegan J. committed fraud upon the court

7.1 In an endeavour to deal with each of the grounds which Mr. Lopes has put forward in para. 5, I propose to start with the bases

which he advances in his written submissions document for suggesting that it might be possible to establish the wrongdoing which he

alleges. I have already addressed what seemed to me to be somewhat overarching grounds being those specified at grounds (b) and

(c). For clarification, ground (a) deals with the fundamental question before the court as to whether Hanna J. was correct to strike

out Mr. Lopes’ claim. This point is obviously dependent on the other grounds and factual allegations already addressed or addressed

below, and determined later in this judgment. I also propose to consider certain additional materials or arguments in favour of the

contention that wrongdoing might be made out which can be derived not from those written submissions but from other materials

submitted by Mr. Lopes to the Court or from the oral argument. However, before commencing with the task of considering the

materials and issues referred to in the written submissions document, I feel it is appropriate to make some general observations about

the way in which Mr. Lopes sought to persuade the Court that there was a credible basis for his factual allegations.

7.2 In that context, it is important to emphasise that the way in which Mr. Lopes sought to make his case was to point to various

aspects of the trial process which he says could only have occurred if there was bias, discrimination or corruption on the part of the

relevant judge or judges. Mr. Lopes does not suggest any basis for putting forward any direct evidence of such corruption, bias or

discrimination. It is, thus, necessary to examine the events at the High Court trial before Geoghegan J. on which he places reliance.

Grounds (d) to (g)

7.3 Ground (d) concerns the legal issue, on which Hanna J. placed some reliance, as to judicial immunity. As noted earlier, I am not of

the view that this motion to dismiss as being bound to fail should be determined on that issue. I am prepared to assume, for the

purposes of this application, that, if bias could be made out, Mr. Lopes would have some prospect of succeeding.

7.4 Ground (e) suggests that the trial judge "conspired to pervert the course of justice" with the key witness called by Mr. Lopes. Mr.

Lopes draws attention to a passage from the transcript of the trial where Mr. Lopes expressed concern that the relevant medical

witness was giving a different view in oral evidence than he had in a previous medical report. Clearly Mr. Lopes sought to argue that

the relevant medical witness was going back on a previously held view. The consultant doctor concerned gave an explanation which

Mr. Lopes does not consider to be satisfactory. However, the only point made by Mr. Lopes which touches on the trial judge is to

draw attention to the fact that the trial judge said the following:-

"Mr. Lopes, you can't cross-examine (the medical consultant) and I have given you a good deal of latitude because you

are a lay man, but please remember this is your witness."

Mr. Lopes then says, in relation to the medical report, that it is in "his (the doctor's) report and it is as clear as day in the report". I

frankly find it impossible to see how that intervention on the part of the trial judge provides any evidence of the serious allegation

made by Mr. Lopes to the effect that it could establish a conspiracy between the trial judge and the doctor concerned. Likewise

grounds (f) and (g) of his submissions are concerned with further evidence given by the same doctor. Again this single intervention of

the trial judge does not in itself provide any basis for suggesting any improper involvement on the part of the trial judge.

7.5 The witness was giving evidence having already been called by Mr. Lopes. The witness had already produced a medical report

which was before the Court. Mr. Lopes was concerned that the witness was giving evidence which was unfavourable to him and

which was said to be at variance with the views contained in his medical report. Whether Mr. Lopes had a legitimate complaint about

the witness or not is an entirely separate question. The trial judge was under an obligation to be fair to both sides. Requiring that the

case be conducted in accordance with the rules of evidence, and requiring, despite giving some leeway, that Mr. Lopes act in

accordance with procedural law, cannot amount to evidence of impropriety on the part of the trial judge. In that and other extracts

from the transcript, the trial judge is at pains to point out to Mr. Lopes that the doctor was his witness.

7.6 It was for Mr. Lopes to prove his damages. He bears the burden of proof. If his witness did not appear to be giving evidence

which he liked, then that may cause a difficulty for his case. But there is absolutely no basis put forward for a sustainable suggestion

that any difficulties which Mr. Lopes may have had with his witness could be attributed to the trial judge. All that the trial judge did

was to require Mr. Lopes to keep within procedural law. In addition, it must be recalled that what we now have is a transcript of an

oral hearing. Words spoken at an oral hearing cannot be parsed and analysed like a carefully drafted contract. It must also be recalled

that trial judges can be wrong both in their previous recollection of individual items of evidence as the case progresses, in their

assessment of the evidence at the end of the case and in their application of the law to that evidence. That is why there are

appeals. However, to suggest that a minor error, even if there be one, is evidence of impropriety is, frankly, so unstateable as to

amount to an abuse of process.

7.7 Finally, it should be recorded that Mr. Lopes has suggested that, subsequent to the trial, he sought the advice of a neurologist in

Portugal as a result of which he had further surgery. On that basis, it would appear it is suggested that the assessment given by his

consultant doctor of his condition at the trial was incorrect. It would, of course, be impossible for this Court, at this stage, to reach

any view as to the merits or otherwise of such a suggestion. But even if it could be shown that the evidence given by the relevant

consultant at the trial before Geoghegan J. was incorrect, same would not, without much more, provide any basis for the serious

accusations which Mr. Lopes makes in these proceedings. In adversarial proceedings, conflicting medical opinion is frequently

addressed to the Court by way of evidence. Almost by definition, in such cases, some of the medical evidence will be wrong. The

Court's job is to assess the evidence as best it can and determine the facts on the balance of probabilities. The fact that subsequent

experience may show that a medical opinion given in evidence may not have been correct will not even provide a basis for reopening

the case between the parties for the principle of finality requires that the proceedings come to an end and cannot be reopened in the

absence of fraud. Even if it could be shown that a judge accepted evidence which turned out to be incorrect, same does not even

establish that the judge was wrong, let alone guilty of bias or discrimination or corrupt, for the judge may well have been more than

entitled, on the basis of the evidence available at the trial, to accept the evidence over which a question mark might subsequently

hang.

Grounds (h) and (l)

7.8 That leads to ground (h). This ground is based on a fundamental misunderstanding by Mr. Lopes of the way in which evidence is

assessed in the common law system. He presupposes that, because the defence did not call evidence of fact on the question of his

intentions concerning a return to sea, the Court was obliged to accept his evidence. That is simply and plainly wrong. It is the duty of

any court to assess the credibility of any evidence presented. That assessment is, in civil cases, made on the balance of probabilities.

It is particularly important to emphasise that, in cases where there could not be, or is unlikely to be, contradictory evidence (such as

evidence given by a person about their own intentions), there is a particular duty on the Court to carefully scrutinise such evidence

with a view to forming a conclusion as to whether it can be regarded as sufficiently credible to satisfy the requirement that the facts

be established on the balance of probability.

7.9 A similar comment must be made in respect of ground (l). Mr. Lopes draws attention to the fact that no contradictory medical

evidence was called on behalf of the solicitor defendant. However, it is important to emphasise that, whether Mr. Lopes was happy

with same or not, his own witness (being his own consultant doctor) had, under cross examination, made a number of admissions

which were favourable to the case which the defendant/solicitor sought to make. Indeed, the disputes between Mr. Lopes and that

doctor which form the basis for some of the grounds already considered arose out of those very admissions.

7.10 There is no obligation on a defendant to call evidence. However, if the plaintiff's evidence goes unchallenged, then difficulties

may very well be caused for the defendant. Where, however, the plaintiff's evidence is challenged and, in particular, where admissions

are made or it is felt that the credibility of the plaintiff's evidence has been damaged, a defendant may well decide that it is

unnecessary to call its own evidence for the defendant may be happy with the state of the evidence reached at the close of the

plaintiff's case in the light of whatever admissions were made. The admissions made by Mr. Lopes' consultant doctor formed part of

the evidence on which the defendant was entitled to rely. The approach of the trial judge in assessing all of the evidence, including

those admissions, is entirely proper and a normal approach of any judge assessing evidence, whether of fact or of expert opinion, in

the common law system. There is just nothing unusual about that approach either generally or in the way in which it was conducted

in this case. No conceivable inference of any impropriety on the part of the trial judge, therefore, arises.

Grounds (i), (j) (k) and (m)

7.11 The next two grounds, (i) and (j), allege that the trial judge conspired with the defence solicitors in relation to making the

judgment not appear in the public domain and in the manner in which Geoghegan J. came to hear this case. Firstly, it is incorrect, as

Mr. Lopes suggests, that it would have been typical, in the late 1990s, for all judgments of the High Court to appear in the public

domain in the sense of a published written document. In fact, Geoghegan J. delivered an ex tempore oral judgment in open court on

the 2nd July, 1998 and a transcript of that judgment is available. Secondly, there is nothing unusual in a single judge managing and

dealing with a case in the manner in which Geoghegan J. did in this case. There is simply no factual basis for the assertion that there

was anything untoward in the way in which Geoghegan J. came to be the judge who heard this case and the way in which the

judgment was dealt with after delivery.

7.12 In ground (k), Mr. Lopes seeks to link these latter allegations with his erroneous suggestion that this Court had previously

decided that he was automatically entitled to loss of earnings. It is unfortunate that Mr. Lopes is under that misunderstanding. It may

be that it has coloured his view of many other aspects of the case. But on that question he is, for the reasons already analysed, just

plainly and completely wrong. This question is returned to in ground (m). That ground also lacks any conceivable substance for like

reasons.

8. Mr. Lopes’ arguments in relation to the acts of the Supreme Court and/or the defence team said to amount to a

perversion of justice

8.1 At para. 6 of Mr. Lopes' written submissions, he goes on to deal with the alleged deficiencies in the second appeal to the Supreme

Court. Many of the lettered grounds put forward by Mr. Lopes under this paragraph again raise the alleged failure to apply the

Supreme Court judgment of 1997, in particular, grounds (c), (d), (e). This issue has been addressed in detail in section 6 of this

judgment and, thus, there is no necessity to reiterate the relevant findings here.

8.2 In his submissions on the Supreme Court appeal, Mr. Lopes submits various reasons at grounds (a), (f), (g) (h), (i) and (j) for

suggesting that judicial immunity should not apply in this case. For the reasons already identified, I do not consider it appropriate to

determine this motion on the basis of judicial immunity. If a credible case for suggesting that a factual claim of bias, discrimination or

corruption against a member or members of the judiciary could be made out then, in my view, it would have been, as I pointed out

earlier, appropriate to allow the matter to go to a full trial at which, amongst other things, the question of judicial immunity could be

analysed. Likewise, for the reasons already set out, I do not consider it appropriate to deal with this case on the basis of the Statute

of Limitations and, thus, it is unnecessary to consider the submissions in that regard made by Mr. Lopes.

8.3 Attention is drawn in grounds (b) and (c) to the fact that the appeal had to be heard a second time because of the fact that one

of the judges who sat on the original appeal resigned before judgment had been given. It is important to emphasise that the

circumstances which led to the judge in question resigning had absolutely nothing to do with the facts of this case and also occurred

in sudden circumstances. Contrary to what Mr. Lopes suggests, there were a number of cases which had to be dealt with by different

panels of judges precisely because of that resignation. Mr. Lopes makes the suggestion in his written submissions that the trial judge

and the defence team were apparently unhappy with the way in which the first panel was likely to decide the case and contrived to

have a different panel deal with the case. There is simply no factual, or evidential, basis put forward to give rise to even the prospect

of that allegation being made out. It is a bare allegation and no more than that. There is no evidence to support any such suggestion,

nor is there any prospect put forward as to a means by which such evidence might be forthcoming. The resignation of the judge in

question was an unfortunate event which disrupted a number of cases where judgments were pending. It had absolutely nothing to

do with the case brought by Mr. Lopes.

8.4 Mr. Lopes next, at para. 7 of his submissions, makes suggestions concerning an allegation of bribery of one of his witnesses (the

same doctor to whom reference has already been made) and perjury by that witness. If an allegation of bribery of a witness could be

made out on the facts, then that might well provide a legal basis for having the original decision, which was based on the evidence of

the bribed witness, set aside on the grounds of fraud. But it provides, even if it were true, no basis for suggesting that the trial judge

or the appeal court judges who dealt with the case brought by Mr. Lopes were in any way involved. I would emphasise that I am not,

in any way, suggesting that it has been established that bribery or perjury resulting from it did, in fact, occur. I confine myself to

commenting that no basis for any connection with the judiciary has been put forward.

8.5 The remainder of the submissions made by Mr. Lopes in paras. 6 and 7 concern a variety of legal propositions concerning the way

in which a claim for bias, discrimination or corruption might lead to a cause of action under either EU law, the provisions of the ECHR

or under the Irish Constitution. Those submissions raise, potentially, many interesting questions of law not least questions concerning

whether EU law is engaged (whether it can be said that any party was acting within the scope of EU law in the context of an Irish

personal injury action), whether, as a matter of Irish law, the ECHR can be relied on given that the events predate the Convention

having any formal status in Irish domestic law, and questions concerning judicial immunity and the like under the Irish Constitution.

Doubtless other legal issues could arise. However, the fundamental point is that for any of those important and interesting legal issues

to arise there has to be a credible case on the facts in bias, discrimination or corruption in the first place. As already indicated, I am

prepared to accept, for the purposes of this application, that, in the event that a credible case for such bias, discrimination or

corruption were put forward the case should go to trial to enable those issues of law to be explored.

8.6 If there were a credible basis for suggesting that the claim sought to be put forward by Mr. Lopes in relation to bias,

discrimination or corruption, could be sustained on the facts, then the Court would have to give very serious consideration as to the

legal consequences of the situation which would then be established to have occurred. Rights under both Bunreacht na hÉireann and

the ECHR would certainly be engaged. It is also possible (but by no means certain) that rights under the Charter of Fundamental

Rights might also arise. However, in the absence of a credible case on the facts, then those legal issues simply do not arise in this

case.

8.7 In passing, although it is not a factor which this Court on this appeal has taken into account, it does need to be emphasised that

Mr. Lopes did not place before the Court any evidence or any suggestion of it being likely that there could be evidence, to suggest

why the various judges, against whom he makes complaint, would have discriminated against him. When asked what evidence there

might be to substantiate his allegation, as set out in his pleadings, that he was discriminated against on the basis of his nationality,

he did no more than indicate that, given the result of the various hearings, there must have been discrimination against him on some

basis even if it were not on the grounds of nationality. However, for the reasons which I have sought to analyse in detail, I am not

satisfied that the result of his case provides any basis for the suggestion that the damages awarded to him were wrong, let alone

wrong on the basis of a discriminatory action on the part of the judges concerned. It is next necessary to turn to some additional

points raised.

9. Some Additional Points

9.1 Some final aspects of the potential case which Mr. Lopes might seek to make need to be commented on. Not least because he is

a litigant in person, but also because the jurisprudence of the Irish courts makes clear that a case should not be dismissed as being

bound fail if there is any credible basis (including an amendment of pleadings) which could arguably save it from dismissal, I propose to

deal with some points which were not expressly made in his written submissions but which nonetheless might be said to form part of

the case which he seeks to bring.

9.2 In a document entitled “Supreme Court/Book of Appeal”, a number of items are included which require some comment. First, as

per the index, there is contained between pp. 46 and 52 what is said to be "Evidence of Joseph Byrne who testified about Seamanship

affairs". In fact, the evidence of Mr. Byrne is actuarial evidence which is simply about the proper basis for the calculation of various

multipliers which might be actuarially applied to any established loss of earnings.

9.3 Next, between pp. 53 and 72, is to be found the evidence (again from the transcript) described as that of "the doctor who found

the Appellant permanently unfit to resume his career". The doctor in question was a doctor who was involved in a certification

process on behalf of the Department of the Marine and who did, indeed, certify that Mr. Lopes was unable to act as a seaman. Before

dealing with the evidence of that doctor, however, it is striking to note that, between pp. 60 and 62 from that transcript extract, it is

clear that, despite the attempts by counsel for the defendant solicitor to admit in evidence a medical report to which Mr. Lopes

objected, the trial judge refused to allow the defence to rely on the report in question. Hardly the act of a judge who was biased

against Mr. Lopes.

9.4 Next, some attention was drawn by Mr. Lopes to the fact that the trial judge indicated that he was not bound by the certificate

in question. What Geoghegan J. stated was that the mere existence of the permanent certificate was not itself sufficient given that

the certificate was reversible and that the certifier did not himself have all the facts before him. In so indicating, the trial judge was

simply complying with the law which requires the Court to consider the case on the basis of the evidence presented in court. Mr.

Lopes sought to suggest, in oral argument, that the trial judge was in breach of the commonly accepted common law principles for

the resolution of ordinary civil proceedings, by, Mr. Lopes argued, the trial judge using his own discretion rather than deciding the

case on the balance of probability. To so suggest is to misread the transcript and, indeed, the judgment. A court is required to come

to a view on the facts on the balance of probability. In so doing, a court is entitled to form a rational view, on the balance of

probability, as to the credibility of any evidence even if no counter evidence is put forward. The fact that the trial judge said that he

would come to his own view does not mean that the trial judge was exercising any discretion. Rather, the trial judge was simply

indicating that he would come to a view on all of the evidence. That is, of course, what the trial judge's duty was. The trial judge

was required to form a view on Mr. Lopes' capacity to work as a seaman and, indeed, other aspects of his capacity to earn.

Doubtless the trial judge had proper regard to the evidence of the doctor who certified him as unfit to return to sea. But the trial

judge was required, as a matter of law, to come to an overall conclusion on all of the evidence. That evidence includes the testimony

of Mr. Lopes' former specialist consultant notwithstanding the fact that Mr. Lopes sought to question the credibility of that witness.

The extent to which the trial judge was prepared to accept the evidence of those various witnesses is a matter for the trial judge

who had the benefit of hearing them give evidence. The fact that the trial judge preferred some and was less impressed by other

evidence could in no circumstances, certainly of itself, amount to a basis for suggesting that the trial judge was even wrong, let

alone biased, discriminatory or corrupt.

9.5 Finally, on this particular issue, it is important to note what the doctor in question said at p. 58 of the first Book of Appeal

prepared by Mr. Lopes. He declined, on questioning by Mr. Lopes, to offer any opinion on general injuries (as opposed to fitness to

return to sea) when asked by Mr. Lopes about persistent symptoms and a suggestion about difficulties to walk for more than twenty

minutes "or something like that". The answer was that the witness was a general practitioner, and that his brief was confined to

giving an opinion as to fitness or otherwise to work aboard a ship. The doctor said he would not be an expert on other areas. It is

clear, therefore, that the witness in question gave no evidence concerning the continuing injuries of which Mr. Lopes complained and

no evidence concerning his fitness or otherwise to do any type of work other than as a seaman.

9.6 Next, Mr. Lopes included in his papers a newspaper article concerning an award of IR£468,000 given to a nurse which award he

said demonstrated that the amount he ultimately received was wholly inadequate and, thus he inferred, one which could only have

arisen from bias, discrimination or corruption. Mr. Lopes had referred to this case in his pleadings. It is important to point out that

counsel for the State was able to produce evidence that the award to which reference had been made had been significantly reduced

by this Court on appeal (Allen v O’Suilleabhain and the Mid-Western Health Board (Unreported, Supreme Court, 11th March, 1997).

The ultimate result in Allen was that the plaintiff received damages for pain and suffering in the sum of IR£125,000. It is also

important to draw attention to the comments made by the Supreme Court in Allen to the effect that, at that time, the absolute

maximum of damages which could be awarded, in accordance with the case law of the courts, for pain and suffering was fixed in the

sum of IR£200,000. Damages of that amount were paid only in the case of catastrophic injuries such as quadriplegia. The ultimate

award for damages for pain and suffering which Mr. Lopes achieved, in the sum of IR£80,000, needs to be seen in that context. It

also needs to be seen in the context of the evidence ultimately given to the Court by his consultant doctor concerning his ongoing

condition together with the fact that the certifying doctor in respect of his fitness to return to sea declined to express any view on

his general medical condition.

9.7 In Allen, in addition to damages for pain and suffering, a total sum was awarded by the Supreme Court to cover special damages

together with past and future loss of earnings in the amount of IR£241,571. However, it does need to be noted that some element of

that sum (not specified in the Court's judgment) related to special damages other than past or future loss of earnings. In addition, a

specific sum of IR£23,843 was awarded in respect of loss of pension rights. In those circumstances it would seem that the

approximate final award in respect of past and future loss of earnings was of the order of IR£200,000. By contrast it would appear

that Mr. Lopes was ultimately awarded a sum of IR£75,000 for past and future loss of earnings.

9.8 A number of comments are appropriate. First, the outcome of every case depends on its own facts and, crucially, the evidence of

those facts placed before the Court. Second, it is clear that the plaintiff in Allen was in secure and permanent employment at the

time when the relevant accident occurred. As the trial judge in that case had noted, she also would have had opportunities to work in

that capacity abroad. The plaintiff was also engaged in business studies which might have expanded her work opportunities. The

judgment of this Court in respect of loss of earnings was delivered by Murphy J. It is important to note, as Murphy J. did, that

notwithstanding the secure employment of the plaintiff and the good prospects for future employment which she had, the trial court

nonetheless made a deduction of 20% in the actuarial calculation of her damages to reflect the risk that she would, for whatever

reason, not have been able to achieve in full employment for her entire working career up to 65.

9.9 Any distinction between the damages awarded in Allen and the damages ultimately awarded to Mr. Lopes must take into account

the fact that Mr. Lopes' position in respect of both past and future loss of earnings was significantly more problematic than that of

Ms. Allen. There was a strong basis for suggesting that Mr. Lopes' business would have collapsed in any event and would not,

therefore, have provided him with earnings into the future irrespective of his injuries. The question of whether he would truly have

returned to sea and, if so, when and for what period, was a significant issue in the case. The evidence as to whether he could have

done other, even part-time, work, which, while less remunerative, would nonetheless have mitigated his damage was also relevant.

Any difference between the damages awarded in Allen and those ultimately awarded to Mr. Lopes under the loss of earnings heading

must be seen in the light of those significant differences.

9.10 It is, of course, the case that the factors which can influence the proper award of damages are many. Similar injuries can give

rise to significantly different awards in our system because of the effect of those injuries on the individual in question. All this Court

can do at this stage is to indicate that the ultimate award to Mr. Lopes, as a result of the various hearings before various courts to

which reference has been made, left him with a sum of damages which does not seem out of the range of damages which might

potentially have been awarded, at the relevant time, for a case of his type, particularly where the principal focus of his claim for loss

of earnings related to an occupation which he was not pursuing at the time of the accident.

9.11 The Book of Appeal also includes, at p. 73, an extract from the transcript before Geoghegan J. in which counsel for the

defendant asked Mr. Lopes about his citizenship. It is clear that that question was asked in the context of the case being made by

the defendants that Mr. Lopes had settled in Ireland and was, thus, unlikely to go back to sea. There is no basis for suggesting that

any inference of bias, discrimination or corruption could flow from that question and, in any event, it is hard to see how it has any

relevance to an accusation against a judge or judges.

9.12 Finally, I should note that, at the hearing, some question arose as to whether Mr. Lopes had, in his second appeal to this Court,

raised the question of whether this Court had previously decided that he was entitled to damages for loss of earnings. At the Court's

request Mr. Lopes furnished a copy of the relevant notice of appeal from which it is clear that he had raised that question. However,

it is important to emphasise that this Court, in significantly increasing the damages awarded by Geoghegan J., did actually allow a

rounded sum for damages to reflect loss of opportunity in respect of future earnings. Even on the basis of the case made by Mr.

Lopes, there could be no suggestion that this Court had previously, on the first appeal, decided that he was entitled to damages for

future loss of earnings calculated in any particular way. All of the judges made it clear that the assessment of damages was to be on

the basis of the evidence tendered at the retrial. Given that this Court, on appeal, found that Mr. Lopes was, indeed, entitled to some

damages for future earnings, the issue of whether that question had been determined at the previous appeal hearing or not just did

not arise at the second appeal hearing.

10. Conclusions on the Evidence

10.1 I should emphasise again that the proper approach to a motion like this is to take the evidence which it is suggested might be

capable of being secured and presented to the High Court, at its high point. However, for the reasons already analysed, almost all of

that evidence concerns what transpired at the hearings before the various courts which dealt with Mr. Lopes' case. The fact that Mr.

Lopes makes assertions about many things does not amount to evidence. Either the evidence or potential evidence is capable, on an

arguability basis, of supporting his accusations or assertions, or it is not.

10.2 Having carefully analysed each of the matters which were set out in his written submissions, in the documents which he filed in

support of same and in his oral submissions, it seems to me that there is just no basis for suggesting that there is any evidence, or

any prospect of there being evidence, to support his factual accusations. On that basis, I am satisfied that the underlying factual

assertion which lies at the back of all of the submissions made is bound to fail. If that factual assertion fails, then the legal issues,

however interesting and important, just do not arise.

11. Final Conclusion

11.1 The overall conclusion must, therefore, be that these proceedings are bound to fail and that the ultimate conclusion which

Hanna J. reached to that effect was correct. In so stating, I would emphasise that, as pointed out in respect of certain aspects of

the judgment of Hanna J. earlier mentioned, I would not propose to reach a finding of these proceedings being bound to fail on exactly

the same basis as Hanna J. did.

11.2 However, the finding that Hanna J. was correct to conclude that these proceedings were bound to fail on the facts is sufficient

to allow an overall conclusion to be reached that the proceedings are bound to fail. It follows that the appeal must be dismissed, and

that the order of the High Court dismissing these proceedings as being bound to fail must be upheld.