Recent Court of Appeal decision provides clarity on judicial interpretation of the Book of Quantum in determining damages and continues trend of the Court Appeal reducing damages in personal injuries actions

In the recent Court of Appeal decision in Leidig -v- O’Neill [2020] IECA 296, the appeal Judge, Mr Justice Noonan, reduced the amount the defendant had to pay to the plaintiff in respect of injuries sustained following a road traffic accident in 2015. The plaintiff had suffered injuries to his wrist, which ultimately required a bone graft and led to ongoing discomfort.

In his judgment, Noonan J outlined that he believed the excessive amount of damages awarded by the trial judge was primarily due to a misinterpretation of the Book of Quantum. Noonan J stated that the trial judge erred in considering that the Book of Quantum only referred to pain and suffering to date. He also added that this error was compounded by the trial judge treating the plaintiff’s loss of hobbies as a separate head of damage to pain and suffering. He cited the case of Shannon -v- Shannon [2016] IECA 93, in which Irvine J outlined a number of questions for the court to consider when assessing damages for pain and suffering, including a consideration on the limitations imposed on the plaintiff’s activities such as leisure and sporting pursuits. Noonan J also believed that the injuries suffered by the plaintiff fell into the ‘moderately severe’ category as opposed to the ‘severe and permanent’ category in which the trial judge placed the plaintiff’s injuries.

Having regard to the above, and also that awards of damages must be proportionate with regard to the cap for general damages for the most serious injuries set at €500,000 by the Supreme Court in Morrissey & Anor -v- HSE &Ors [2020] IESC 6, Noonan J reduced the amount of general damages from €155,000 to €90,000.

In reducing the amount awarded to the plaintiff, Justice Noonan continued the trend of personal injuries damages being reduced on appeal. The decision followed on from the Court of Appeal decision in McKeown v Crosby & Anor [2020] IECA 242. In the decision to reduce the amount of damages awarded by the trial judge in McKeown, the Court of Appeal considered proportionality to be key. The court stated that it is cognisant that high awards of damages can have an impact on public discourse and referenced the cost liability insurance, be it motor, public, or employers’ liability as a key societal factor for the court to consider.

There is a clear trend emerging illustrating the Court of Appeal’s view that it is paramount that in awarding damages in a personal injuries action, the court should adhere closely to doctrine of proportionality and the Book of Quantum.

The Book of Quantum will be replaced by the Personal Injuries Guidelines of the Judicial Council (the Guidelines) in July 2021. It is envisaged that the Guidelines will play a large role in the future adjudication of personal injuries matters and limit judicial discretion in the award of damages and in so doing achieve the goal of proportionality.

Stamp Duty On Commercial Property

Following Budget 2018 which was announced by the Minister for Finance on the 10th October 2017, the rate of stamp duty for non-residential property was increased from 2% to 6%. The change took effect from midnight on the 10th October 2017. However, an allowance was made for purchasers who already had a binding contract for sale in place as a transitional measure. Such purchasers could avail of the 2% stamp duty rate provided that the deed transferring the property was executed before the 1st of January 2018 and that the deed specified that it was executed in pursuance of a binding contract entered into before 11th October 2017.

The rate of stamp duty on residential property was not changed by Budget 2018 and remains at 1% on the first €1,000,000 and 2% on the excess over €1,000.000.

Stamp duty on shares which derive their value from land

The 6% rate of stamp duty will also apply to the transfer of shares in companies, interests in partnerships and units in Irish Real Estate Funds (IREF) which derive their value or the greater part of their value directly or indirectly from Irish real estate other than residential property. This is an anti-avoidance mechanism introduced by the Revenue Commissioners to prevent those wishing to purchase Irish commercial property avoiding the 6% stamp duty rate on a transfer by purchasing shares in a company instead where the rate would otherwise generally be 1%. The increased rate applies when:

  1. The sale or transfer of the stocks/shares results in a change in the person or persons having direct or indirect control over the immovable property concerned; and
  2. The immovable property concerned was:
    1. acquired by the company, IREF or partnership with the sole or main objective of realising a gain from its disposal,
    2. was or is being developed by the company, IREF or partnership with the sole or main object of realising a gain from its disposal when developed,
    3. held as trading stock by the company, IREF or partnership.

The increased rate, where applicable, applies from the 6th December 2017 with the exception of a transfer executed before 1 March 2018 on foot of a binding agreement entered into before 6th December 2017. If the property is developed for residential purposes after acquisition, the purchaser may be able to obtain a refund of up to two thirds of the stamp duty paid provided the development commences within 30 months of the acquisition and other conditions are met.