The High Court has refused a woman’s application for payment on account of certain legal costs following settlement of her action alleging injury after receiving a swine flu jab in 2009.
The woman sought to be awarded certain legal expenses, but the jurisdiction of the court on all such matters “has been ousted” by the settlement agreement, said Mr Justice Alexander Owens in a judgment on Monday.
He said the plaintiff had settled her personal injuries action on terms that did not give the court any function in enforcing the agreement, so there is “nothing left for the court to decide on”.
Further, he said most of the legal costs sought related to her claim under the framework established in the settlement and were not “of or incidental to” the court proceedings, which is not allowed under the Legal Services Regulation Act 2015.
The settlement against the Minister for Health, the Health Service Executive, GlaxoSmithKline Biologicals SA (GSK) – the producer of swine flu vaccine Pandemrix – and the Health Products Regulatory Authority included a sum of damages deemed to be the equivalent of half of the full value of her claim, or such other percentage which may be determined, plus costs to include reserved costs.
GSK was given an indemnity from the State concerning any adverse reactions to the vaccine.
Extrajudicial mechanism
The settlement terms “expressly provide” an extrajudicial mechanism that establishes criteria for liability of the defendants to pay costs to the plaintiff, a method for calculating those costs and a contractual commitment to pay such costs as agreed or settled by an expert, said Mr Justice Owens. This is without any admission of responsibility for injury, he noted.
Mr Justice Owens said the parties could have included express arrangements for payments on account of legal costs and enforcement of those payments in the settlement terms, but they did not. To accede to this application would be to rewrite the terms, which is “not within my remit”, said the judge.
Any cause of action and claims to consequential remedies which she might have pursued in those proceedings are gone, having been replaced by her rights under the settlement terms, said the judge. She no longer has any right in this action to seek an order for payment of any costs or to have any costs assessed under the 2015 Act, he added.
Mr Justice Owens said costs would be awarded to the successful party unless there was a good reason to depart from the general rule.
