Aggravated damages for abusive litigation conduct and no “backdoor” reopening of liability on assessment-only appeal

Commentary on AB v MW [No.1] (Approved) [2025] IEHC 242, High Court of Ireland (Dignam J, 1 May 2025)

Introduction

This High Court judgment arises on appeal from the Dublin Circuit Court in proceedings where judgment in default of defence had been entered and the matter proceeded as an assessment of damages only. The facts stem from a violent incident in a crèche on 4 January 2012 in which the defendant (MW) assaulted the plaintiff (AB), the crèche manager, culminating in a headbutt to the face. The defendant had been criminally convicted of assault causing harm arising from the same incident; the conviction was upheld by the Court of Appeal and leave to appeal was refused by the Supreme Court.

On this appeal, the defendant acted in person (a qualified barrister) and sought to: (i) reopen liability by alleging fraud and suppression of evidence, and (ii) treat updated particulars of injury as “new pleadings” entitling him to deliver a defence. The High Court rejected those attempts, confirmed the appeal was confined to quantum, and proceeded to reassess damages de novo.

The case is significant in three principal respects:

• It clarifies that an appeal limited to assessment cannot be converted into a full liability hearing absent a formal application to set aside the underlying default-judgment orders—allegations of fraud are not a “backdoor” route to undo procedural orders.
• It delineates when updated particulars do (and do not) transform the case to require fresh pleadings, and affirms the court’s management of cross-examination focused on quantum where liability is not in issue.
• It awards aggravated damages against a defendant for abusive litigation conduct—specifically, for a baseless section 26 application under the Civil Liability and Courts Act 2004 and for unfounded attacks on the professionalism of the plaintiff’s expert witness—cementing a developing trend that misuse of section 26 can sound in aggravated damages.

Summary of the Judgment

Dignam J held that the appeal must proceed as an assessment of damages only. The defendant’s two threshold objections failed:

• Alleged fraud/suppression of evidence: The defendant had not moved to set aside the default-judgment orders of the Circuit Court and High Court (Linnane J and Haughton J). Without such an application, the High Court on appeal could not treat the matter as a full defence of liability.
• Updated Particulars of Injury (Nov 2023): The updates (e.g., references to PTSD, ongoing flashbacks, and court-related distress) did not amount to “new pleadings” justifying a right to deliver a defence.

On quantum, the court:

• Accepted the plaintiff’s account of the assault and her injuries, physical and psychological, including surgery for a deviated septum and longstanding PTSD symptoms triggered by ongoing litigation events.
• Adopted the typology of damages for trespass to the person (including “moral injury”) from Alseran v MRE, noting this reflects the Irish position.
• Assessed general damages at €40,000 (dominant injury: psychological injury/PTSD at €30,000; uplift for physical injury at €10,000), plus aggravated damages of €6,500 for litigation conduct (unfounded professional attacks on the expert; meritless section 26 application).
• Awarded special damages of €4,368 (medical and lost earnings). Corporate bills (e.g., security costs invoiced to the crèche company) were not recoverable by the plaintiff personally.

Total award: €50,868 (€46,500 general, including aggravated; €4,368 special). The provisional view on costs favoured the plaintiff despite a lower award than in the Circuit Court, given the defendant’s stance (including the s.26 application) that she should recover nothing.

Detailed Analysis

1. Precedents cited and their role

• DPP v MW [2017] IECA 175; DPP v W [2018] IESCDET 99: The criminal conviction for assault causing harm was upheld on appeal. The defendant’s later allegations about suppressed evidence were canvassed extensively in those criminal proceedings. Dignam J observed that these issues had already been litigated and, more importantly, that the defendant had not brought any application to set aside the default judgment in this civil action. Thus, they could not be used to convert an assessment-only appeal into a liability hearing.
• MN v SM [2005] 4 IR 461: The Supreme Court’s proportionality principles were reiterated: awards must be fair to both parties, proportionate to social conditions and consistent within the scheme of damages. Mitigating features (e.g., early apology) may influence quantum; here the converse applied—ongoing litigation prolonged the plaintiff’s distress.
• Alseran v MRE [2017] EWHC 3289: Adopted as reflecting Irish law for trespass to the person: (i) “moral injury” (the inherent wrong), (ii) identifiable physical/psychiatric injury, (iii) injury to feelings, (iv) aggravated damages (compensatory, not punitive), and (v) financial loss. The judge stressed avoiding double-counting across categories.
• Conway v INTO [1991] 2 IR 305: Finlay CJ’s taxonomy of compensatory, aggravated, and punitive/exemplary damages was central. Crucially, the judgment underscores that aggravated damages should ordinarily be specifically pleaded to give fair notice—subject to an exception for matters arising during litigation conduct itself (which, by definition, postdate pleadings). Dignam J applied this to limit aggravated damages to the manner in which the defence was run, not the underlying assault.
• O’Donnell v O’Donnell [2005] IEHC 216; Sutcliffe v Pressdram Ltd [1991] 1 QB 153; Noctor v Ireland [2005] 1 IR 433; Kinsella v Kenmare Resources plc [2019] IECA 54; O’Sullivan v Depuy International Ltd [2016] IEHC 684; L O’K v L H [2006] IEHC 393; Smith v Gilbert [2005] IEHC 275: These authorities guide when litigation conduct justifies aggravated damages. A simple denial of liability is not enough, but attempts to intimidate, groundless attacks, or oppressive tactics can warrant aggravated damages. The court warned against conflating robust cross-examination with aggravation; there must be something more—such as baseless professional denigration or tactical abuse of process.
• Section 26, Civil Liability and Courts Act 2004 line of authority: Through Keating v Mulligan [2022] IECA 257, the Court of Appeal (per Noonan J) synthesised O’Sullivan v Brozda [2022] IECA 163 (per Collins J), alongside Goodwin, Ahern, Platt, Farrell, Carmello, Meehan, and Smith. The High Court relied on these to restate the high, “draconian” threshold for section 26: a defendant must establish, as a matter of high probability, that the plaintiff knowingly adduced materially false evidence. Courts are to be cautious before dismissing a claim, and defendants must exercise “prudent discernment” before invoking section 26. The judgment goes further by awarding aggravated damages where the section 26 application was meritless—aligning with remarks in O’Sullivan v Brozda, and practice noted in Lackey, Waliszewski, and Daly.
• Delaney v PIAB [2024] IESC 10 and s.22, Civil Liability and Courts Act 2004: On the Personal Injuries Guidelines, the court correctly concluded that actions commenced before 24 April 2021 are not subject to the mandatory “have regard to” obligation for the Guidelines and may instead consult the Book of Quantum (s.22(1A)). The court nonetheless used the Guidelines for general assistance on PTSD. Note: the judgment’s sentence at para 97 appears to contain a minor slip (saying “prior to” where the statute applies “on or after” 24 April 2021); the outcome remains correct because these proceedings were commenced in 2013.

2. Legal reasoning and how the Court reached its conclusions

(a) Scope of appeal and the “no backdoor set-aside” principle

The appeal from the Circuit Court was confined to quantum because judgment in default of defence stood unchallenged. Allegations of fraud and suppression of evidence—even if arguable—must be advanced via a formal set-aside application directed at the extant orders; they cannot be used to expand an assessment-only appeal into a full liability rehearing. The defendant had ample opportunity over years to bring such an application and did not.

The court’s approach also recognised case management fairness: had a set-aside application been made, there would have been a proper evidential framework and reciprocal submissions for adjudicating allegations of fraud. Attempting to achieve that outcome through cross-examination and submissions on an assessment appeal was “wholly inappropriate.”

(b) Updated Particulars do not automatically create a new pleading

The November 2023 Updated Particulars (e.g., PTSD diagnosis; ongoing flashbacks; distress from court attendances; allegations about conduct in court) did not alter the substance of the claim so as to re-open pleading entitlement. Two key insights emerge:

• Where the original claim already encompasses shock/distress, a later formal diagnosis (PTSD) and post-incident developments (e.g., litigation-triggered flashbacks) are further particulars of the same injury, not a new cause requiring a defence.
• Factual details of an assault (e.g., the defendant’s statement “I’m going to hurt you”) are matters of evidence rather than necessary pleadings. The defendant was not taken by surprise—indeed, the phrase appeared in the criminal-trial transcript he himself produced.

(c) Evidence, expert testimony, and credibility

The defendant chose not to give evidence. The court accepted the plaintiff’s evidence on the incident and injuries, and found the psychologist Ms O’Connell to be a credible expert whose methodology was not rebutted by any counter-expert evidence. Two evidential management points are important:

• Experts are entitled to rely on what a patient says; their opinions can be undermined if material facts prove wrong. But the defendant must show material falsity and/or adduce contrary expert evidence. The mere possibility of factual inaccuracy (or misunderstandings) is not sufficient to invalidate the opinion.
• Destroying clinical notes after six years in the absence of a litigation flag was within normal practice; suggestions that the expert “destroyed evidence” were baseless and improper. If litigation was known to be ongoing, non-destruction would be expected—but there was no evidence of such knowledge at the relevant time.

(d) Section 26: high threshold not met

The defendant’s section 26 application failed comprehensively:

• There was no proof the plaintiff knowingly misled the expert about compensation; the €12,000 reference was likely a miscommunication by the expert herself.
• The “bite” issue was clarified: the plaintiff consistently said “tried to bite,” and the expert’s first report recorded that.
• Claims of “break-in” on 26 March 2012 did not amount to knowing falsity; the defendant was observed attempting a keypad code despite having been told not to attend.
• Allegations of harassment were not shown to be knowingly false; the defendant admitted to contacts by email and phone up to mid-2012.

Applying Keating/O’Sullivan v Brozda and the wider section 26 jurisprudence, the court held the defendant fell well short of establishing, to a high probability, knowingly false, materially misleading evidence by the plaintiff.

(e) Damages methodology for trespass to the person; avoiding double-counting

Embracing Alseran’s taxonomy and the Irish proportionality principle, the court awarded compensation for:

• the “moral injury” inherent in the assault;
• physical injuries (nasal fracture/deviated septum requiring GA surgery with minor residuals; arm bruising);
• psychiatric injury (PTSD, moderate in 2015 reducing to borderline mild-moderate by 2023, exacerbated by years of litigation triggers); and
• financial loss (medical fees and loss of earnings; excluding corporate-invoiced security costs).

The court treated the psychological injury as dominant and applied an uplift for physical injury, thereby avoiding duplication across heads. Although not bound to apply the Personal Injuries Guidelines (action commenced pre-24 April 2021), the court used the PTSD brackets for assistance.

(f) Aggravated damages: when not pleaded and when appropriate

Because aggravated damages were not specifically pleaded, the court declined to award them for the assault itself or post-incident non-litigation events. However, consistent with Conway and subsequent practice, aggravated damages may be awarded for litigation conduct that arises after the pleadings and unfairly adds injury to a plaintiff.

Two features warranted aggravated damages:

• Baseless professional denigration of the expert (accusing her of destroying evidence; attacking methodology and competence without any counter-expert or evidential basis).
• Meritless section 26 application launched despite the high threshold and without a proper foundation—an approach decried in the recent appellate authorities and increasingly marked by aggravated awards to deter misuse.

The court awarded €6,500 aggravated damages on these bases, noting that hard-edged cross-examination alone does not justify aggravated damages, but reckless or groundless attacks on integrity or professionalism can.

3. Impact and significance

• Procedural discipline on assessment-only appeals: Defendants cannot “reopen” liability on a quantum appeal by invoking allegations of fraud or by pointing to updated particulars. To revisit liability, they must move to set aside the underlying default orders. This promotes procedural certainty and prevents ambushes.
• Use (and misuse) of section 26: The judgment contributes to an emerging equilibrium: section 26 remains a powerful fraud filter, but abusive or tactical deployment can attract aggravated damages. Defendants are put on notice that “marginal” or meritless s.26 applications may have financial consequences beyond ordinary costs.
• Expert evidence etiquette and evidential burden: Parties who attack an expert’s methodology or integrity must come armed with evidence (often counter-expert testimony). Baseless professional attacks risk aggravated damages.
• Aggravated damages pleading rule, with a practical exception: Aggravated damages should be pleaded for pre-pleading wrongs. But the court may still award aggravated damages for litigation conduct that occurs after pleadings, ensuring fairness where additional injury is inflicted within the proceedings themselves.
• Heads of damage in trespass to the person: The judgment endorses a structured approach distinguishing “moral injury,” injury to feelings, psychiatric/physical injury, and financial loss, while cautioning against double-counting. This helps quantify non-PIAB trespass claims coherently.
• Guidelines/Book of Quantum interface: For pre-24 April 2021 actions, courts are not bound to apply the Personal Injuries Guidelines but may consult them for assistance; the Book of Quantum remains a reference point for physical injury valuation.
• Corporate v personal loss: Special damages must match the proper claimant. Costs invoiced to a company are not recoverable by an individual plaintiff, a point often overlooked in owner-managed business contexts.
• Costs discretion: Even where the appeal award is lower than the Circuit Court’s, plaintiffs may receive costs where defendants run an “all-or-nothing” appeal including s.26 attempts that fail—signalling a pragmatic approach to costs where the plaintiff vindicates her right to damages.

Complex Concepts Simplified

• Assessment-only appeal: When liability is already determined (e.g., by default judgment) and only the amount of compensation is left, the appeal to the High Court is about the figure—not about whether the defendant is liable. To challenge liability, the defendant must formally apply to set aside the earlier orders; they cannot use the appeal to smuggle in liability issues.
• Default judgment: If a defendant fails to deliver a defence in time and no extension is granted, the court can enter judgment against them by default. That fixes liability unless set aside. The case proceeds to assess how much damage was caused.
• Section 26 (Civil Liability and Courts Act 2004): This allows a court to dismiss a personal injuries claim if the plaintiff has knowingly given materially false or misleading evidence. The standard is high and the consequences are harsh—so courts and defendants approach it cautiously. Using it without a solid basis can backfire, including via aggravated damages.
• Aggravated vs punitive damages: Aggravated damages are compensatory: they increase the award to reflect extra injury (e.g., humiliation, oppressive conduct, hostile litigation tactics). Punitive/exemplary damages aim to punish and are awarded only in exceptional categories; they were not in play in this case.
• Moral injury in trespass to the person: In assault/battery, the law recognises that the infringement of bodily integrity itself is compensable, even without physical harm. That injury can be reflected within overall general damages, alongside any physical/psychological harm.
• Dominant injury with uplift: Where multiple injuries occur, courts avoid adding standalone figures for each. They identify the main (dominant) injury, assess it, and add an uplift for the others, to avoid double-counting the overall impact on the person.
• Personal Injuries Guidelines vs Book of Quantum: Actions started before 24 April 2021 are not subject to the mandatory “have regard to” obligation in the Guidelines; courts may still consult them and may also refer to the Book of Quantum for guidance.
• “Without prejudice” defence pending particulars: Even if a defendant believes further particulars are needed, they can file a defence “without prejudice” to seeking more particulars or amendments later; that prevents default judgment while preserving their procedural position.

Outcome and Damages Awarded

• General damages (compensatory): €40,000
  • Psychological injury/PTSD (dominant): €30,000
  • Physical injuries (nasal fracture/deviated septum surgery; bruising): €10,000 uplift
• Aggravated damages (litigation conduct): €6,500
• Special damages: €4,368 (medical expenses; loss of earnings), excluding corporate-invoiced security costs and family-court witness attendances
• Total: €50,868
• Costs (provisional): For the plaintiff, despite a lower award than the Circuit Court’s, given the defendant’s unsuccessful “zero recovery” stance and failed s.26 application (parties invited to file written submissions).

Conclusion

AB v MW [No.1] provides a clear, structured roadmap on several important fronts. First, it reaffirms procedural discipline: appeals limited to assessment cannot be turned into covert liability trials—allegations of fraud must be litigated through a formal set-aside application, not through expanded cross-examination. Second, it explains that updated particulars of injury refine an existing case; they do not automatically open the door to new pleadings. Third, it carefully applies the modern section 26 jurisprudence, refusing a dismissal where the requisite mens rea and materiality are absent, and—critically—awards aggravated damages where section 26 is used without merit and where professionals are baselessly impugned. This follows and reinforces the Court of Appeal’s emphasis on caution and proportionality.

Substantively, the judgment endorses a principled approach to damages for trespass to the person that recognises moral injury while preventing double-counting across psychiatric, physical and feelings-based harm, and it demonstrates pragmatic use of both the Book of Quantum and the Personal Injuries Guidelines as aids to valuation in older actions. Finally, in costs and special damages, it underscores practical lessons: claim the right loss for the right legal person, and expect cost consequences when running no-merit tactics.

The decision will likely be cited for:

• the “no backdoor set-aside” principle on assessment-only appeals;
• the narrow circumstances in which updated particulars justify new pleadings;
• the availability of aggravated damages for abusive litigation conduct, particularly meritless section 26 applications and unfounded attacks on expert integrity; and
• its careful articulation of damages heads in trespass to the person and the emphasis on proportionality and non-duplication.

In short, the judgment strikes a measured balance between protecting the integrity of the civil process and ensuring that litigants—particularly self-represented defendants—are reminded of the evidential responsibilities and risks that accompany hard-edged litigation strategies.