Onus of Proof: Seeking to dismiss a Plaintiff’s claim

Access to Justice

1 October 2021

The recent High Court judgment in Murphy v Palmer [2021] IEHC 154 reiterated the onus of proof which a defendant must meet to successfully bring an application to dismiss a plaintiff’s personal injuries claim for providing evidence which is false or misleading. The Court found that section 26 of the Civil Liability and Courts Act 2004 was intended to prevent fraudulent claims from being brought as opposed to being used as a weapon to meet weaknesses in plaintiffs’ claims.


The plaintiff and defendant were involved in a road traffic accident in 2013. Prior to the accident, the plaintiff was a triathlete and mountain bike rider. The defendant alleged that the plaintiff withheld relevant information intentionally, and to mislead, to the point that it amounted to an exaggeration of his claim. The defendant stated that neither in the pleadings, reporting to experts nor in his evidence to the Court had the plaintiff acknowledged his participation in athletic events post-accident.

Section 26 of the Civil Liability and Courts Act 2004 (the “2004 Act”)

The defendant brought an application under section 26 of the 2004 Act to dismiss the plaintiff’s claim. When considering the application, the Court advised that to be successful the defendant must establish that the plaintiff gave evidence and/or provided information knowingly that was materially false or misleading. The Court also stated that once established, the plaintiff’s claim must be dismissed in its entirety unless it would result in an injustice being done.

Fact or Fake (Mislead)

Mr Justice Barton set out the key principles outlined below from Cahill v Glenpatrick Spring Water Company Limited [2018] IEHC 420 which are applicable to an application under section 26:

  • The defendant must show intent to mislead, and that the plaintiff adduced or caused evidence to be adduced which was misleading in a material respect and was sufficiently substantial or significant to render the claim fraudulent.
  • The defendant is not required to establish that the entirety of the plaintiff’s claim is false or misleading to succeed in such an application.
  • The defendant must afford the plaintiff an opportunity of counteracting the assertion that he gave false and/or misleading evidence, knowing it to be fraudulent;
  • Once the court is satisfied the plaintiff knowingly sought to mislead the court in a material respect, the onus shifts to the plaintiff to establish why it would be unjust to dismiss the claim.
  • If the plaintiff cannot show dismissing the claim would cause injustice, then the claim must fail, and any legitimate part of the claim cannot survive.


The Court noted in considering a section 26 application, the reprehensible behaviour of the defendant must be taken into account as well. The Court advised that if the application to dismiss is not granted, aggravated damages may be awarded to the plaintiff. The Court stated the pertinent question was not whether the court or expert was actually misled but whether or not the plaintiff intentionally gave information and/or evidence which was false and/or misleading.

In his Judgement, Mr Justice Barton found the defendant had not discharged the onus of proof under section 26 to have the plaintiff’s claim dismissed and noted that granting the Order would cause an injustice to be done. However, he did not take the view that aggravated damages were appropriate as he held that the defendant’s application was warranted given the approach taken by the plaintiff during medical examinations.

Conclusion on Onus of Proof

This case demonstrates the high bar which a defendant must meet to be successful in an application to dismiss a plaintiff’s claim under section 26. A defendant should be cognizant that both the plaintiff’s and the defendant’s conduct will be scrutinized and that if such an application is brought improperly, a court may award aggravated damages.

If you would like an assessment of a claim, you can use the online form available here without obligation or alternatively you can use the automatic claim calculator.

Follow us for the latest updates & news

Recent News

Recent Articles

The introduction of class actions in Ireland

The EU Representative Actions Directive (EU) 2020/1828 is to be transposed into Irish law by 25 December 2022, with effect from June 2023. The Directive aims to improve consumers’ access to justice by introducing a standardized EU wide legal mechanism by which...

GDPR – Data Across Borders

We love to travel, and so does our data – or rather, companies want to send our data around the world. A look on the international transfer of personal data and notes that new standard contractual clauses have increased due-diligence obligations on data exporters.

Join our Panel

You May Also Like...

Don`t copy text!