by Katy Meade March-01-2017 in Healthcare Law

On 01 February 2017, the Supreme Court refused to allow the HSE leave to appeal against the Court of Appeal Judgment in Gill Russell v HSE. The Court of Appeal Judgement upheld the Judgment of Mr Justice Cross which reduced the real rate of return from 3% to 1% and 1.5%. This is the rate of return a Plaintiff is assumed to obtain should the settlement or award of damages be invested.  The lower the rate of return the more costly the case is to the HSE.

Among the various issues considered by the Supreme Court was whether the HSE had satisfied the constitutional threshold required, before leave could be obtained. The Court was also asked to address whether the Court of Appeal had erred in law in terms of the approach it took to its function as an appellate court and if the Court of Appeal had evaluated the findings of the Trial Judge correctly.    

The HSE had argued that the real rate of return was a matter of public policy due to the impact a low return rate would have on public finances.  However, the Supreme Court noted that this issue was never pleaded in the High Court and in the circumstances it questioned whether the HSE could rely on it in the Supreme Court. 

The Supreme Court also found that there was no substance in the HSE’s criticism of how the Court of Appeal reviewed the Judgment of the Trial Judge. On the specific issue raised by the HSE in relation to how the High Court arrived at the decision on the investment fund and the return it was likely to produce, the Supreme Court commented that the challenge was advanced on the evidential factors used to arrive at the multiplier rather than the process by which the lump sum should be calculated.

The Supreme Court noted that in the circumstances, the High Court proceeded to hear evidence from experts on both sides. Having heard such evidence the Trial Judge accepted the evidence of the plaintiff’s experts which the Court of Appeal found was justified.  

The Supreme Court commented that as the decision arrived at by the trial judge was based on the evidence presented before him, it could do no more than conduct a similar type of review as the Court of Appeal had done, as the analysis would be on the individual facts so admitted or established. Therefore, it could not see how it would bring to this issue the finality the HSE were seeking.    

The Supreme Court concluded that on the facts, the HSE had not raised any issue in respect of which the interest of justice would require a review by the Supreme Court and therefore refused leave to appeal. The Court noted that the findings of this application, while final between the parties, was not intended to decide any question of law. Therefore the determination did not mean the issue may not be considered in the future.         

The decision of the Supreme Court in this case has far reaching implications for the HSE and will serve to increase costs of meeting medical negligence claims significantly.  The State Claims Agency has previously commented that by reducing the real rate of return, the costs of meeting medical negligence claims will increase by approximately €100m per annum.   

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