The Extent to which defendants must provide particulars of a "bald denial" in their defence

Published 15 julio 2021

In the case of Crean v Harty, HSE and South Infirmary – Victoria Hospital Cork Limited [2020] IECA 364, the central issue before the Court of Appeal was the extent to which s.13(1) (b) of the Civil Liability and Courts Act, 2004 (the “Act”) obliges a Defendant in a Personal Injuries action to provide particulars of a denial pleaded in their defence.

Background

The Plaintiff, Mr Crean, had a total right hip replacement in 1986, with revision surgery in 1989.  In October 2015, he had a further total right hip preplacement performed by the First Named Defendant at the Third Named Defendant hospital. Following the October 2015 surgery, he developed peripheral neuropathy of the right lower leg. There was no allegation of negligence in the performance of the surgery, but the Plaintiff alleged that he had not been advised that due to his earlier surgeries, he was at a significantly increased risk of developing complications and as such, his informed consent to the October 2015 surgery had not been obtained.

Three separate Defences were delivered, which were materially identical in that they all:

1. Denied any negligence or breach of duty in the manner alleged in the Personal Injuries Summons;
2. Denied that there was a failure to obtain the Plaintiff’s informed consent prior to the surgery;
3. Denied each and every particular of negligence or breach of duty and put the Plaintiff on proof of same.

The Plaintiff’s solicitors raised particulars on the Defences and, in relation to the plea denying that there had been a failure to obtain informed consent, sought full and detailed particulars of the information and advice provided to the Plaintiff which it is alleged met the requirements of informed consent.  The request was denied on the basis that it was not permissible to raise particulars on a denial. The Plaintiff issued a Motion to compel replies to particulars and the relief sought was refused in the High Court, the trial judge holding that the Act did not require the Defendants to go any further than they had done in their Defences.

Court of Appeal

The Plaintiff appealed, claiming that the Act was intended to provide for maximum disclosure in personal injuries litigation and to prevent the risk of ambush at trial.  The Plaintiff alleged that the Defendants’ “bald denial” was contrary to the requirements of s.13 (1) (b) of the Act.

The Defendants claimed that s.13 (1) (b) had been complied with by pleading a “flat denial”, however, they accepted that had the denial been pleaded as a positive plea to the effect that they had obtained informed consent, the request for particulars would have been appropriate.

The Court cited the case of Allied Irish Bank v AIG Europe Limited [2018] IEHC 677, where it was held that it is well established that the Court will not direct a party to provide particulars of a denial in a pleading, but that particulars of a denial will be ordered where the denial amounts in substance to a positive allegation.  The Court held that in this case, the disputed plea, although negative in form was, in substance, a positive plea to the effect that the Defendants in fact obtained the Plaintiff’s informed consent prior to the surgery. The Court held that the provisions of sections 10 – 13 of the Act were clearly intended to ensure that parties plead with greater precision so that in advance of trial, the actual issues between the parties will be clearly identified. The Court found, as a general proposition, that it could not accept that a “straight denial” complied with the requirements of s13 (1) (b) of the Act and noted that a bald denial appeared to be precisely what this section was targeted at. In this case, the Court said, it was clear that further particulars could be given and ordered the Defendants to furnish replies and awarded costs to the Plaintiff.

Conclusion

This case is one of a number of recent cases in which similar orders have been made and there seems to be less tolerance from Plaintiffs and the Courts alike for traverse or “on-proof” Defences.  Although there will be cases where it is not possible to give particulars of a denial, it is clear that where it is possible, it will be ordered by the Court.