A high Court judge has warned that a ruling he made yesterday regarding liability for costs in an Army deafness case dismissed by the court should not be regarded as a precedent.
On Wednesday Private Anth ony Brogan (47), married with four children, of Landen Road, Ballyfermot, Dublin, unsuccessfully sued the Minister for Defence for damages for personal injury, loss and damage.
He had claimed a hearing difficulty as a result of his service in the Defence Forces.
It was submitted that while the plaintiff suffered a minor hearing loss, it did not translate into a disability under the newly published Green Book standards, which set out recommendations from an expert group on assessment of hearing loss. The Brogan case was the second to be tried in the High Court under the guidelines.
The action was dismissed by Mr Justice Lavan who yesterday was asked by Mr Alan Mahon SC, for the soldier, to award his client costs in the case. Mr Mahon said there were numerous examples in which plaintiffs who may have lost their case were awarded costs where a court decided their action had been taken on the basis of pubic interest or where certain challenges to the Constitution had been mounted. Mr Justice Lavan said the new legislation was not there to reduce awards but to assess properly the basis of disability. an Ryan SC, for the State, said it could not be said that Private Brogan would have won his case had it occurred before the advent of the Green Book as even then there would have been a major debate as to whether anything at all was wrong with Private Brogan's hearing. Private Brogan was not a deserving person who suddenly found himself at a disadvantage, counsel said. He argued that the first case under the new rules, the `Greene` case, had already been decided and Private Brogan knew this.
He said the principle was that costs should follow the event. However, he would make no order for costs in this case. His decision should not be seen as a precedent, the judge warned. Other than in exceptional circumstances, costs would follow the event and he wanted to make this clear.
The order means Private Brogan will have to pay his own costs but will not be required to pay the State's legal fees.