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All’s fair in love and war

The title to this post is incorrect. The concept of war crime shows this. I have written elsewhere that legal proceedings are not a search for truth. Nevertheless, in legal proceedings, as in war, there are limits to restrain the parties.

The Supreme Court marked its disapproval of failures by lawyers for the Defendant in Philp v Ryan and Bon Secours [2004] IESC. The court found that the 1st Defendant had altered his clinical notes. As altered, they appeared to show that the Plaintiff was to have a PSA test in 6 weeks. In fact no provision was made for such a test. The Plaintiff, who was suffering from prostate cancer, was misdiagnosed by the 1st Defendant. Eight months later the Plaintiff discovered the misdiagnosis and issued proceedings pleading that his life expectancy was reduced due to the Defendants’ negligence.

The 1st Defendant misled his lawyers and medical advisors. Consequently the Defendants’ defence was to the effect that the Plaintiff was responsible for the loss of eight months treatment and not the 1st Defendant.

Almost on the eve of the proceedings commencing, the 1st Defendant informed his lawyers what he had done. They did not correct the wrong impression and understanding of the Plaintiff’s lawyers as to the defence the Defendants intended to mount. The lawyers for the 1st Defendant continued to represent, in the manner in which the defence was presented, that the Plaintiff had been advised to have a PSA test and had failed to do so. The Supreme Court found that there was at least a suspicion that there was a deliberate attempt to keep the true facts from the [High] court.

Consequently the Court awarded aggravated damages to the Plaintiff, increasing the High Court award from €45,000 to €100,000.