Injuries Board Assessment II
Personal Injuries Assessment Act
Chapter 2
Procedure for assessment
What this Chapter contains.
19.—This Chapter contains the principal provisions relating to the making of an assessment of a relevant claim the making of which has been arranged by the Board under section 14(1).
Annotations:
Amendments:
F29
Substituted by Personal Injuries Resolution Board Act 2022 (42/2022), s. 10, not commenced as of date of revision.
Modifications (not altering text):
C20
Prospective affecting provision: amended by Personal Injuries Resolution Board Act 2022 (42/2022), s. 10, not commenced as of date of revision.
19.—This Chapter contains the principal provisions relating to the making of an assessment of a relevant claim the making of which has been arranged by the Board under F29[section 14(1)(c)].
Assessment.
20.—(1) In this section “assessment”, in relation to a relevant claim, means an assessment of the amount of damages the claimant is entitled to in respect of the claim on the assumption that the respondent or respondents are fully liable to the claimant in respect of the claim.
(2) An assessment of a relevant claim shall be made by such one or more of the employees of the Board for the time being assigned the performance of functions under this Chapter as the Board directs (in subsequent sections of this Part referred to as “assessors”).
(3) That employee or those employees may be assisted in the making of the assessment by one or more of the persons the services of whom are engaged by the Board under section 80 (in subsequent sections of this Part referred to as “retained experts”).
(4) F30[Subject to subsection (5), an assessment shall be made] on the same basis and by reference to the same principles governing the measure of damages in the law of tort and the same enactments as would be applicable in an assessment of damages were proceedings to be brought in relation to the relevant claim concerned.
F31[(5) In making, on or after the date of coming into operation of section 99 of the Judicial Council Act 2019, an assessment in relation to a relevant claim of the amount of damages for personal injuries the claimant is entitled to, assessors shall—
(a) have regard to the personal injuries guidelines (within the meaning of that Act) in force, and
(b) where they depart from those guidelines, state the reasons for such departure and include those reasons in the assessment in writing under section 30(1).]
F32[(6) Notwithstanding subsections (4) and (5), the Board, when making an assessment of a claim in a civil action referred to in section 3(aa), shall take into account the following:
(a) in the case of a claim relating to personal injuries not causing death, paragraphs (a) and (b) of section 23(3) of the Act of 2022 and section 23(4) of the Act of 2022,
(b) in the case of a claim relating to a death, paragraphs (b) to (e) of section 23(6) of the Act of 2022 and section 23(7) of the Act of 2022.]
Annotations:
Amendments:
F30
Substituted (24.04.2021) by Family Leave and Miscellaneous Provisions Act 2021 (4/2021) s. 31(a), S.I. No. 180 of 2021.
F31
Inserted (24.04.2021) by Family Leave and Miscellaneous Provisions Act 2021 (4/2021) s. 31(b), S.I. No. 180 of 2021.
F32
Inserted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(1)(c), S.I. No. 163 of 2023.
Modifications (not altering text):
C21
Subs. (1) construed (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 20(g), S.I. No. 163 of 2023.
Modifications to application of Act of 2003
20. The Act of 2003 shall apply to, and in relation to, an application to which section 19 refers, subject to the following modifications and any other necessary modifications: …
(g) it shall be read as if the reference in section 20(1) of the Act of 2003 to the assumption that the respondent or respondents are fully liable to the claimant in respect of the claim is a reference to the assumption that the Garda Commissioner, or any person entitled, by or under any enactment, to act on behalf of the Garda Commissioner in an action to which section 3(aa) of the Act of 2003 applies, is fully liable to pay any award of damages made to the claimant in respect of the claim;
…
Section 20: supplemental provisions.
21.—(1) The assessors shall make their assessment by reference to the information, records or other documents required or authorised by this Act to be furnished to them; no hearing shall be conducted by them for that purpose.
(2) The assessors may also have regard, for that purpose, to relevant information, records or documents that came, before the commencement of this section, into the possession of the board known as the “Interim Personal Injuries Assessment Board” established on 27 November 2002 by the Minister for Enterprise, Trade and Employment.
(3) If the assessment is an assessment of a relevant claim relating to a proposed action for damages under section 48 of the Act of 1961 the assessment shall specify the proportion of the amount of damages it provides for to which each of the dependants concerned is to be entitled.
(4) An assessment shall not, in respect of the damages which it provides for, specify that they shall be paid in 2 or more instalments.
Annotations:
Amendments:
F33
Inserted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(1)(d), S.I. no. 163 of 2023.
Modifications (not altering text):
C22
Prospective affecting provision: subs. (3A) inserted by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(1)(d), not commenced as of date of revision.
F33[(3A) If the assessment is an assessment of a relevant claim relating to a civil action referred to in section 3(aa) that is being taken by or for the benefit of persons to whom section 8(2)(b) of the Act of 2022 applies, the assessment shall specify the proportion of the amount of damages it provides for to which each of those persons is to be entitled.]
Power to impose charges.
22.—(1) The Minister may make regulations enabling the Board to impose the charges referred to in subsection (2) in respect of the dealing by the Board with an application under section 11 in relation to a relevant claim.
(2) Those charges are—
(a) a charge on the claimant of an amount specified in the regulations under subsection (1),
(b) a charge on the respondent or, as the case may be, each of the respondents of an amount specified in those regulations, and
(c) a charge, additional to that referred to in paragraph (b), on the respondent or, as the case may be, each of the respondents, for the purpose of defraying any amount of the expenses incurred by the Board, or on its behalf, in the making of the assessment concerned that, in its opinion, is of an exceptional kind.
(3) For the purpose of subsection (2)(c) and regulations under that provision—
(a) “an exceptional kind”, in relation to an amount, means an exceptional kind relative to the amounts of expenses typically incurred by the Board, or on its behalf, in the making of assessments,
(b) without prejudice to paragraph (a), any amount of expenses incurred by the Board, or on its behalf, in the arranging of, or the carrying out of, a medical examination referred to in section 24(2) is an amount of an exceptional kind.
F34[(4) Different amounts may be specified in regulations under subsection (1)—
(a) for the purposes of subsection (2)(b)—
(i) in relation to different classes of relevant claim, and
(ii) in relation to different stages of a relevant claim,
and
(b) for the purposes of subsection (2)(a) and (b) in relation to the submission of documents in electronic and paper form.]
(5) The Board may refuse to deal with an application under section 11 if a charge imposed by it pursuant to regulations under subsection (1) in relation to the application has not been paid to it.
(6) Any amount of charges imposed pursuant to regulations under subsection (1) may be recovered by the Board from the person concerned as a simple contract debt in any court of competent jurisdiction.
(7) Charges may be imposed pursuant to regulations under subsection (1) even though, before the making of an assessment of the claim would otherwise have fallen to be made under section 20, a settlement is entered into in respect of the relevant claim concerned.
F35[(7A) A respondent referred to in section 14(1) shall be liable to the Board for any and all charges incurred by the Board in respect of the respondent in relation to the relevant claim concerned pursuant to regulations made under this section.]
(8) In subsection (2) “respondent” includes a non-accepting respondent (within the meaning of section 34).
Annotations
Amendments:
F34
Substituted (3.04.2019) by Personal Injuries Assessment Board (Amendment) Act 2019 (3/2019), s. 5, S.I. No. 123 of 2019.
F35
Inserted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 11(c), S.I. No. 28 of 2023.
F36
Inserted by Personal Injuries Resolution Board Act 2022 (42/2022), s. 11(a), not commenced as of date of revision.
F37
Substituted by Personal Injuries Resolution Board Act 2022 (42/2022), s. 11(b)(i), not commenced as of date of revision.
F38
Inserted by Personal Injuries Resolution Board Act 2022 (42/2022), s. 11(b)(ii), not commenced as of date of revision.
Modifications (not altering text):
C23
Prospective affecting provision: subss. (1) substituted, (2)(b) amended and (2)(ba) inserted by Personal Injuries Resolution Board Act 2022 (42/2022), s. 11(a), (b)(i), (ii), not commenced as of date of revision.
F36[(1) The Board, with the consent of the Minister may, and if directed by the Minister to do so shall, make regulations enabling the Board to impose the charges referred to in subsection (2) in respect of the dealing by the Board with an application under section 11 in relation to a relevant claim.]
(2) Those charges are—
. . .
(b) a charge on the respondent or, as the case may be, each of the respondents of an amount F37[specified in those regulations,]
F38[(ba) a charge, additional to that referred to in paragraph (b), on the respondent or, as the case may be, each of the respondents of an amount specified in those regulations for failure to pay within the period provided for by those regulations, and]
. . .
Editorial Notes:
E7
Power pursuant to section exercised (11.04.2022) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2022 (S.I. No. 124 of 2022), in effect as per reg. 2.
E8
Power pursuant to section exercised (1.09.2019) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2019 (S.I. No. 363 of 2019), in effect as per reg. 3.
E9
Power pursuant to section exercised (1.01.2013) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2012 (S.I. No. 523 of 2012), in effect as per reg. 2.
E10
Power pursuant to section exercised (1.02.2011) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2011 (S.I. No. 41 of 2011), in effect as per reg. 2.
E11
Power pursuant to section exercised (1.01.2008) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2007 (S.I. No. 869 of 2007), in effect as per reg. 2; amended (1.02.2011) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2011 (S.I. No. 41 of 2011), in effect as per reg. 2.
E12
Power pursuant to section exercised (1.06.2006) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2006 (S.I. No. 264 of 2006), in effect as per reg. 2.
E13
Power pursuant to section exercised (1.06.2004) by Personal Injuries Assessment Board (Fees) Regulations 2004 (S.I. No. 251 of 2004), in effect as per reg. 2; amended (1.06.2006) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2006 (S.I. No. 264 of 2006), in effect as per reg. 2 and (1.01.2008) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2007 (S.I. No. 869 of 2007), in effect as per reg. 2 and (1.02.2011) by Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2011 (S.I. No. 41 of 2011), in effect as per reg. 2.
Power to require additional information, etc.
23.—(1) The assessors may request the claimant to furnish to them such information or documents in the possession or control of the claimant, additional to the information contained in, or the documents which accompanied, his or her application under section 11, as they consider necessary for the making of the assessment.
(2) The assessors may request the respondent or respondents to furnish to them such information or documents in the possession or control of the respondent or respondents as the assessors consider necessary for the making of the assessment.
(3) If retained experts are assisting the assessors in the making of the assessment the assessors may make the following request if they consider that it is necessary to do so for the purpose of enabling those experts to assist them in the making of the assessment.
(4) That request is a request of the claimant or the respondent or respondents to—
(a) provide such assistance to the retained experts,
(b) furnish such information or documents to those experts, additional to that or those referred to in subsection (1) or (2), or
(c) otherwise co-operate with those experts in such manner,
as is or are specified in the request.
Medical examination of claimant in certain circumstances.
24.—(1) The assessors may make the request referred to in subsection (2) if—
(a) any information or documents furnished by the claimant, whether initially or pursuant to a request made under section 23, and consisting of any medical opinion (whether a diagnosis or prognosis) in relation to the claimant’s injuries is not accepted as being correct by a respondent, or
(b) the assessors otherwise consider it appropriate to do so.
(2) The request mentioned in subsection (1) is a request of the claimant to submit himself or herself to a medical examination which the Board may arrange to be carried out in relation to the claimant by one or more medical practitioners.
(3) That medical practitioner or those medical practitioners shall be a person or persons who have no pecuniary interest or other beneficial interest in, or material to, any matter which could reasonably be affected (whether favourably or unfavourably) by the outcome of the assessment.
(4) For the avoidance of doubt the medical examinations which the Board may arrange to be carried out under this section include a medical examination to be carried out in a place outside the State.
Annotations
Editorial Notes:
E14
Power pursuant to section exercised (1.06.2004) by Personal Injuries Assessment Board (Fees) Regulations 2004 (S.I. No. 251 of 2004), regs. 6, 7, in effect as per reg. 2.
Failure to comply with a request under section 23 or 24.
25.—(1) If a claimant fails to comply with—
(a) a request under section 23(1), the assessors shall proceed to make the assessment as best they may in the absence of the information or document to which the request related,
(b) a request under section 23(3), the assessors shall proceed to make the assessment as best they may in the absence of the information or document to which the request related having been furnished to the retained experts or, as the case may be, the assistance or co-operation to which the request related having been afforded to those experts,
(c) a request under section 24(1)(a), the assessors shall, unless they see good reason for not doing so, make the assessment on the basis that the contention of the respondent concerning the information or document referred to in section 24(1) and which gave rise to the making of the request was correct,
(d) a request under section 24(1)(b), the assessors shall proceed to make the assessment as best they may in the absence of the information that would have been provided to them had the medical examination to which the request related been carried out.
(2) If a respondent fails to comply with a request under section 23(2) or (3), the assessors shall proceed to make the assessment as best they may in the absence of the information or document to which the request related having been furnished to them or the retained experts or, as the case may be, in the absence of the assistance or co-operation to which the request related, having been afforded to those experts.
Powers to request information from third parties.
26.—(1) The assessors may request any person (including a Department of State or any other public body (other than the Revenue Commissioners)) to furnish to them such records, documents or other information in his or her possession or control as they reasonably request for the purpose of—
(a) verifying any item of loss alleged by the claimant in his or her relevant claim, or
(b) complying with the provisions of any enactment that requires specified amounts to be deducted or specified matters to be taken account of in the making of an assessment of damages,
and the records, documents or other information that may be the subject of such a request include records, documents or information that came into existence, or into the possession of the person requested, before the passing of this Act, and it shall be the duty of such person to comply with such request.
(2) Without prejudice to the generality of subsection (1), the assessors may, for the purpose specified in subsection (3), request the Department of the Environment, Heritage and Local Government to furnish to them relevant particulars in relation to a mechanically propelled vehicle contained in a database that is maintained by it for the purposes of any Community act.
(3) The purpose mentioned in subsection (2) is the purpose of the Board’s ascertaining the identity of the insurance company or undertaking, if any, which has entered in to an approved policy of insurance (within the meaning of the Road Traffic Act 1961) in respect of the vehicle referred to in that subsection.
(4) If the database referred to in subsection (2) is maintained for the time being by another person on behalf of the Department of the Environment, Heritage and Local Government the reference in that subsection to that Department of State shall, for so long as the database is maintained by that other person, be construed as a reference to that person.
Section 26: supplemental provisions.
27.—(1) If a person fails or refuses to comply with a request made by the assessors under section 26 the assessors may apply to the District Court for an order under subsection (2).
(2) On the hearing of an application under this section, the District Court may, if it thinks fit, make an order directing the person concerned to comply with the relevant request.
(3) A person who fails or refuses to comply with an order made under subsection (2) is guilty of an offence.
(4) The jurisdiction of the District Court under this section shall be exercised by the judge of the District Court for the time being assigned to the district court district in which the person against whom the order concerned is sought resides or carries on business.
Limited power to require certain other information.
28.—(1) A claimant, by virtue of his or her having made an application under section 11, shall be deemed to have consented to the Revenue Commissioners complying with the following request.
(2) That request is a request by the assessors (which by virtue of this section they have power to make) of the Revenue Commissioners to furnish to the assessors particulars or other information in their possession or control in relation to the amount of income of the claimant for the purpose, and the purpose only of, the assessors’ verifying any item of financial loss that is alleged by the claimant in his or her relevant claim and which relates to that income.
(3) Notwithstanding any enactment, it shall be the duty of the Revenue Commissioners to comply with such a request unless the consent referred to in subsection (1) is deemed to have been revoked by virtue of subsection (4).
(4) That consent shall be deemed to have been revoked if, at the date of the making of the request of the Revenue Commissioners, the application under section 11 of the claimant concerned stands withdrawn by him or her in accordance with section 47.
(5) The particulars or other information that may be the subject of a request under this section include particulars or other information that came into existence, or into the possession of the Revenue Commissioners, before the passing of this Act.
Special provision in relation to vulnerable parties.
29.—(1) If the Board considers it to be a reasonable inference from the manner in which a claimant or a respondent has completed, or is completing or attempting to complete, a step required to be taken by him or her by or under this Act that he or she does not have a sufficient appreciation of the legal consequences the taking of that step, or the following of the procedures generally under this Act, may have in respect of his or her rights or obligations as regards the relevant claim, it shall be the duty of the Board to do one, or more than one, as it considers appropriate, of the following things.
(2) Those things are—
(a) to advise the claimant or respondent, as appropriate, of the desirability of his or her obtaining legal advice in the matter,
(b) to provide an explanation to the claimant or the respondent of the legal consequences generally a failure to complete properly the step concerned or to follow properly the procedures generally under this Act may have in respect of a claimant’s or respondent’s rights or obligations as regards a relevant claim,
(c) to provide such assistance as the Board considers reasonable to the claimant or the respondent, as appropriate, in completing the step concerned properly or, as the case may be, re-taking that step in a proper manner.
(3) The respondent or respondents or, as appropriate, the claimant shall be informed by the Board, as soon as may be after the doing of that or those things, of the fact that one or more of the things referred to in subsection (2) (but not the doing alone of the thing referred to in paragraph (a) of that subsection) has been done.
(4) The Board shall ensure that the doing of the thing referred to in paragraph (b) or (c) of subsection (2) is accompanied by a statement to the claimant or the respondent, as appropriate, that the doing of that thing does not absolve the Board of the duty to cause an assessment of the relevant claim concerned to be made impartially.
(5) For the avoidance of doubt no statement contained in any medical report or other document furnished to the assessors in respect of the relevant claim concerned, of itself, gives rise to any duty on the part of the Board to do one or more of the things specified in subsection (2).
Parties to indicate whether or not they accept assessment.
30.—(1) Having made their assessment of a relevant claim the assessors shall reduce the assessment to writing and the Board shall serve the assessment on the claimant and the respondent or each of the respondents, together with the following notice.
(2) That notice is a notice requesting—
(a) in the case of a notice served on the claimant, the claimant to state to the Board in writing within 28 days, or such greater period as may be specified by rules under section 46, from the service of the notice whether he or she accepts the assessment, and
(b) in the case of a notice served on a respondent, the respondent to state to the Board in writing within 21 days from the service of the notice whether he or she accepts the assessment.
(3) If—
(a) a next friend or, as appropriate, a guardian of the claimant or the respondent, (or, as the case may be, any one or more of 2 or more respondents) who is a minor or a person of unsound mind is acting on behalf of the claimant or that respondent or those respondents in the F39[matter,]
F40[(aa) a person referred to in section 8(4) of the Act of 2022 is acting on behalf of a person in the matter, or]
(b) a committee of the claimant or the respondent (or, as the case may be, any one or more of 2 or more respondents) who is a person of unsound mind is acting on behalf of the claimant or that respondent or those respondents in the matter,
the notice referred to in subsection (1) shall also include a direction to the next friend, F41[guardian, person referred to in section 8(4) of the Act of 2022 or] committee that he or she or it obtain legal advice from a person who is independent of him or her or it as to whether the assessment ought to be accepted.
(4) The reference in subsection (2)(a) to a statement as to the acceptance of the assessment is, if the claim concerned falls within subsection (3) F42[or is one relating to a proposed action for damages under section 48 of the Act of 1961], a reference to a statement as to the acceptance (subject to the approval of the court under section 35 of the assessment) of the assessment.
Annotations
Amendments:
F39
Substituted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(e)(i), S.I. No. 163 of 2023.
F40
Inserted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(e)(ii), S.I. No. 163 of 2023.
F41
Substituted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(e)(iii), S.I. No. 163 of 2023.
F42
Inserted (21.07.2004) by Civil Liability and Courts Act 2004 (31/2004), s. 32(2), commenced as per s. 1(3), subject to transitional provision in s. 6.
Deemed acceptance or non-acceptance of assessment.
31.—(1) If the claimant fails to state in writing, in response to the notice under section 30, within the period specified in it, whether or not he or she accepts the assessment he or she shall be deemed not to have accepted it.
(2) If a respondent fails to state in writing, in response to the notice under section 30, within the period specified in it, whether or not he or she accepts the assessment, he or she shall be deemed to have accepted it.
Proceedings to be authorised if assessment not accepted.
32.—(1) In a case either—
(a) to which section 31(1) applies, or
(b) in which the claimant or a respondent states in writing, in response to the notice under section 30, within the period specified in it, that he or she does not accept the assessment,
it shall be the duty of the Board, as soon as may be after the expiry of that period, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (3).
(2) Such a document is also referred to in this Act as an “authorisation”.
(3) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim and such an authorisation shall be in addition to any authorisation issued under section 14 to the claimant.
Assessment binding on parties unless section 32 applies.
33.—(1) Unless one or other of the cases mentioned in section 32(1) applies in respect of the assessment concerned, the assessment shall, subject to subsection (3) and section 35, become binding on—
(a) the claimant, and
(b) the respondent or, as the case may be and subject to section 34, each of the respondents,
on the expiry of the following period.
(2) That period is the period specified in the notice mentioned in section 30(2)(a) that was served on the claimant.
(3) The assessment shall not be binding on a person who proves that, at the time of his or her acceptance, or deemed acceptance, in accordance with this Part, of the assessment he or she was not of sound mind.
(4) Subsection (3) does not apply if—
(a) in the case of a claimant, a next friend or a committee of the claimant is acting on his or her behalf, and
(b) in the case of a respondent, a guardian or a committee of the respondent is acting on his or her behalf.
Position of respondent or respondents who do not accept assessment.
34.—If there are 2 or more respondents as respects a relevant claim and one or more but not all of them makes a statement of the kind referred to in section 32(1)(b) the following provisions have effect—
(a) the assessment made under section 20, though accepted by the other respondent or respondents, shall not be binding on the respondent or respondents who made such a statement (the “non-accepting respondent or respondents”),
(b) section 32 shall have effect as if the following subsections were substituted for subsection (3):
“(3) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against only the non-accepting respondent or respondents (within the meaning of section 34) and such an authorisation shall be in addition to any authorisation issued under section 14 to the claimant (but this subsection is subject to the following subsection).
(4) Subsection (3) does not prejudice the operation of section 41 (which relates to the application of section 16 of the Act of 1961 (satisfaction by one wrongdoer discharging the other wrongdoer or wrongdoers)) and, accordingly, the proceedings authorised by that subsection to be brought—
(a) shall cease to be maintainable if the amount or amounts specified in an order to pay issued by the Board in respect of the relevant claim are paid to the claimant, or
(b) if only a portion of the amount or amounts specified in such an order to pay is paid to the claimant, shall be maintainable in respect of only the balance outstanding.”.
Approval of court required for certain assessments.
35.—(1) This section applies to a relevant claim where—
(a) a next friend or the committee of a minor or a person of unsound mind is acting on behalf of the minor or person in respect of the F43[claim,]
F44[(aa) a person referred to in section 8(4) of the Act of 2022 is acting on behalf of a person in relation to a claim,
(ab) the claim relates to a civil action referred to in section 3(aa) that is being taken by or for the benefit of persons to whom section 8(2)(b) of the Act of 2022 applies, or]
(b) the claim relates to a proposed action for damages under section 48 of the Act of 1961,
F45[and the next friend, committee, person referred to in paragraph (aa), person taking the civil action referred to in paragraph (ab), or the person proposing to bring the action for damages referred to in paragraph (b), as the case may be] accepts, subject to the assessment being approved under this section, the assessment made under section 20 of the relevant claim.
(2) Where any enactment or rule of court requires any settlement of a relevant claim to which this section applies to be approved by the court then that enactment or rule of court shall apply, with the necessary modifications, to the assessment referred to in subsection (1) as if proceedings had been brought in relation to the claim, and the court shall have jurisdiction to approve the assessment accordingly on application in that behalf being made by the next friend, committee or other person referred to in that subsection.
(3) The court shall order that the costs of such an application by the applicant shall be borne by the respondent or respondents.
(4) Unless and until an assessment of a relevant claim to which this section applies has been approved by the court, the assessment, despite section 33, shall not become binding on the claimant and the respondent or respondents.
(5) In this section “court” means the court which has jurisdiction to make an award of damages of the amount of the assessment the subject of the application for approval or, if 2 or more courts have jurisdiction to make such an award, whichever of them possesses the lesser or the least jurisdiction to make an award of damages in respect of relevant claims.
Annotations:
Amendments:
F43
Substituted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(f)(i), S.I. No. 163 of 2023.
F44
Inserted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(f)(ii), S.I. No. 163 of 2023.
F45
Substituted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(f)(iii), S.I. No. 163 of 2023.
Authorisation to bring proceedings where assessment not approved.
36.—(1) If the court does not approve an assessment the subject of an application to it under section 35, then it shall be the duty of the Board, as soon as may be after the court refuses to approve the assessment, to issue to the claimant concerned a document that contains the statement and operates to have the effect mentioned in subsection (3).
(2) Such a document is also referred to in this Act as an “authorisation”.
(3) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against the respondent or respondents who accepted, or, in accordance with this Part, is or are deemed to have accepted, the assessment concerned and such an authorisation shall be in addition to any authorisation issued under another provision of the Act to the claimant.
Certain statements, etc., not to prejudice claimant or respondent.
37.—(1) In neither of the cases referred to in subsection (2) shall the statement concerned of the claimant or, as the case may be, the respondent (or, as appropriate the deemed acceptance by the respondent) be capable of being used in evidence against the claimant or the respondent (or, in the case of the respondent, constitute an admission of liability by him or her) or operate in any manner to prejudice any proceedings.
(2) The cases referred to in subsection (1) are—
(a) a case in which a statement in writing, in response to a notice under section 30, is made by a claimant that he or she accepts an assessment in circumstances where a statement in writing, in response to such a notice, is made by a respondent that he or she does not accept that assessment, and
(b) a case in which either—
(i) a statement in writing, in response to a notice under section 30, is made by a respondent that he or she does accept an assessment, or
(ii) a respondent is deemed, by virtue of section 31, to have accepted an assessment,
in circumstances where a statement in writing, in response to such a notice, is made by a claimant that he or she does not accept that assessment.
Enforceability of assessment.
38.—(1) Within one month after an assessment becomes binding on the claimant and the respondent or, as the case may be, each of the respondents the Board shall issue to the respondent or each of the respondents a document (in this Act referred to as an “order to pay”).
F46[(2) An order to pay shall state that the respondent to whom it is issued is liable to pay—
F47[(a) to the Minister for Social Protection, the amount of recoverable benefits specified in the relevant statement of recoverable benefits, if any, in accordance with the provisions of Part 11B (amended by section 12 of the Social Welfare (Miscellaneous Provisions) Act 2015) of F48[the Social Welfare Consolidation Act 2005,]]
(b) to the claimant—
(i) the amount of damages specified in the assessment less the amount referred to in paragraph (a), and
(ii) the amount, if any, directed to be paid under section 44 or 45 or both of F48[those sections, and]]
F49[(c) to the Board, the amount of any outstanding charges payable to the Board by the respondent in accordance with regulations under section 22.]
(3) If the assessment is binding on more than one respondent, the liability of the respondents for payment of that amount or those amounts shall be joint and several and an order to pay shall include a statement to that effect.
Annotations
Amendments:
F46
Substituted (1.08.2014) by Social Welfare and Pensions Act 2013 (38/2013), s. 14, S.I. No. 308 of 2014.
F47
Substituted (6.05.2015) by Social Welfare (Miscellaneous Provisions) Act 2015 (12/2015), s. 17, commenced on enactment.
F48
Substituted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 12(b)(i), (ii), S.I. No. 28 of 2023.
F49
Inserted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 12(b)(iii), S.I. No. 28 of 2023.
F50
Substituted by Personal Injuries Resolution Board Act 2022 (42/2022), s. 12(a), not commenced as of date of revision.
Modifications (not altering text):
C24
Prospective affecting provision: subs. (1) amended by Personal Injuries Resolution Board Act 2022 (42/2022), s. 12(a), not commenced as of date of revision.
38.—(1) Within one month after F50[an assessment or an agreement under section 18C(1)(b)] becomes binding on the claimant and the respondent or, as the case may be, each of the respondents the Board shall issue to the respondent or each of the respondents a document (in this Act referred to as an “order to pay”).
…
Chapter 3
Legal status of order to pay, etc.
What this Chapter specifies.
39.—This Chapter specifies the effect an order to pay or, as appropriate, an assessment has for various purposes (including the purposes of certain provisions of the Act of 1961); a different effect is specified by reference to the different circumstances in which an order to pay or an assessment falls to be considered and, in particular, circumstances—
(a) in which there is a default in payment of the amount or amounts specified in an order to pay, and
(b) in which a respondent who has paid the amount or amounts specified in an order to pay seeks to make a claim for contribution against one or more concurrent wrongdoers in respect of the relevant claim concerned.
Primary legal effect of order to pay.
40.—(1) As between—
(a) the claimant and the respondent or respondents, and
(b) 2 or more respondents,
an order to pay shall, without prejudice to the other provisions of this Chapter, operate as if it were a judgment of a court given for the amount or amounts concerned.
(2) Accordingly the provisions of every enactment (and in particular section 26 of the Debtors (Ireland) Act 1840 but not section 22 of the Courts Act 1981) and every instrument under an enactment shall, with any adaptations of them that may be made under subsection (3), apply to an order to pay as they apply to a judgment of a court.
(3) The authority for the time being having power to make rules regulating the practice and procedure of any court (being a court which would have jurisdiction to make an award of the amount or amounts specified in the order to pay concerned) may make rules providing for such adaptations of any enactment or instrument referred to in subsection (2) as are necessary for the purpose of enabling each of the methods that are available for the enforcement of a judgment of that court available for the purpose of the enforcement of an order to pay.
Order to pay to operate as satisfaction of claimant’s claim.
41.—(1) If the amount or amounts specified in an order to pay are paid to the claimant such payment shall constitute a satisfaction of the claimant’s relevant claim for the purposes of section 16 of the Act of 1961 as if the claimant had agreed that that payment would be a payment of the full damages to him or her in respect of the claim.
(2) If only a portion of the amount or amounts specified in an order to pay are paid to the claimant such payment shall constitute a partial satisfaction of the claimant’s relevant claim for the purposes of section 16 of the Act of 1961.
Application of section 22 of Act of 1961 (claims for contributions between concurrent wrongdoers).
42.—(1) As between—
(a) one or more respondents and either or both—
(i) one or more non-participating respondents,
(ii) one or more non-accepting respondents,
(b) one or more non-participating respondents or non-accepting respondents and either or both—
(i) one or more other non-participating respondents,
(ii) one or more other non-accepting respondents,
and
(c) any one or more of the foregoing persons and one or more other persons (not falling within either of the preceding paragraphs) who are concurrent wrongdoers as respects the relevant claim,
an order to pay shall, for the purposes of section 22 of the Act of 1961, be regarded as a settlement by the first-mentioned respondent or respondents in paragraph (a) with the claimant of his or her relevant claim.
(2) In this section and the following section—
“non-accepting respondent” has the same meaning as it has in section 34;
“non-participating respondent” has the same meaning as it has in section 15.
Application of section 18 of Act of 1961.
43.—For the purposes of the application of section 18 of the Act of 1961 in circumstances where a claimant is not barred from bringing proceedings against a non-participating or non-accepting respondent or respondents, an assessment of the claimant’s relevant claim or, if an order to pay in respect of it has been issued, that order to pay, shall be deemed to be an award of damages, of the amount or amounts specified in the assessment or the order to pay, made by the judgment first given (within the meaning of that section).
Chapter 4
Miscellaneous
Expenses incurred by claimant.
44.—(1) Without prejudice to section 45, on an assessment having been made the Board may include in the notice it serves under section 30 in relation to the assessment the following statement.
(2) That statement (“the statement”) is one to the effect that the Board will direct, if the assessment is accepted by the claimant and accepted or deemed to be accepted by the respondent or one or more of the respondents, that the respondent or respondents who accept or are deemed to have accepted the assessment shall pay to the claimant, in addition to the amount of the assessment, a specified amount, being the whole or part, as the Board, in its discretion, determines, of the amount of the following fees or expenses of the claimant.
(3) Those fees or expenses are fees or expenses that, in the opinion of the Board, have been reasonably and necessarily incurred by the claimant in complying with the provisions of this Part or any rules under section 46 in relation to his or her relevant claim.
(4) If the assessment is accepted or deemed to be accepted, in accordance with this Part, by the claimant and the respondent or one or more of the respondents the Board shall direct that that respondent or those respondents shall pay to the claimant the amount specified in the statement.
(5) The statement shall indicate, in brief terms, the nature of the fees or expenses to which the amount specified in the statement relates; not later than 10 days before the expiry of the period mentioned in section 30(2)(b) a respondent may request the Board to furnish to him or her such further details as he or she may reasonably specify in relation to the nature of those fees or expenses and the manner in which the foregoing amount was calculated by the Board and the Board shall comply with such a request.
(6) In this section “fees or expenses” do not include fees or expenses to which section 45 applies.
Fees or expenses where direction referred to in section 30(3) given.
45.—(1) If a direction to the F51[next friend, guardian, or committee of the claimant, or person referred to in section 8(4) of the Act of 2022] of the kind referred to in subsection (3) of section 30 is included in a notice under that section that direction shall include the following statement.
(2) That statement is one to the effect that the Board will direct, if the assessment concerned is accepted by the claimant and accepted or deemed to be accepted by the respondent or one or more of the respondents, that the respondent or respondents who accept or are deemed to have accepted the assessment shall pay to the claimant, in addition to the amount of the assessment and any amount directed to be paid under section 44, the whole of the fees or expenses reasonably incurred by the F51[next friend, guardian, person referred to in section 8(4) of the Act of 2022 or committee in] complying with the direction referred to in subsection (1).
(3) If the assessment is accepted or deemed to be accepted, in accordance with this Part, by the claimant and the respondent or one or more of the respondents the Board shall direct that that respondent or those respondents shall pay to the claimant the whole of the fees or expenses referred to in subsection (2).
(4) If a direction under subsection (3) is given, and the respondent or respondents concerned and the F51[next friend, guardian, or committee of the claimant, or person referred to in section 8(4) of the Act of 2022] cannot agree as to what is the amount, for the purposes of this section, of the fees or expenses reasonably incurred by the F51[next friend, guardian, person referred to in section 8(4) of the Act of 2022 or committee in] complying with the direction referred to in subsection (1), those fees and expenses shall be taxed by a Taxing Master of the High Court or, if the Board determines it would be more appropriate, having regard to the limited amounts involved, for a county registrar to do so and so directs, the county registrar for the circuit of the Circuit Court in which the respondent or any of the respondents concerned resides or carries on business.
(5) A reference in this Act to an amount specified in an order to pay shall, in so far as the reference relates to an amount the subject of a direction under subsection (3), be deemed to be a reference to the amount, as agreed between the parties concerned or taxed under subsection (4), in respect of the fees or expenses the subject of that direction.
Annotations:
Amendments:
F51
Substituted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(1)(g)(i), (ii), S.I. No. 163 of 2023.
Rules.
46.—(1) Subject to the provisions of F52[this Part (including this Part as applied by section 19 of the Act of 2022)], the Board may make rules concerning the procedure to be followed under this Part in relation to—
(a) the making of applications under section 11,
(b) the making of assessments under section 20, and
(c) matters consequential on, or incidental to the foregoing.
(2) Rules under this section shall enable the Board to supply a copy of any records or other documents furnished by a claimant or a respondent to it, pursuant to F52[this Act (including this Act as applied by section 19 of the Act of 2022)] or the exercise by it or any member of its staff of powers under F52[this Act (including this Act as applied by section 19 of the Act of 2022)], to a respondent or, as the case may be, a claimant in relation to the relevant claim concerned.
(3) F52[Except in relation to a civil action to which section 3(aa) refers, rules under] this section shall enable the Board (subject to rules under subsection (4)) to issue to a claimant a document (in this Act also referred to as an “authorisation”), in circumstances where the claimant is not otherwise authorised under a provision of this Act to bring proceedings in respect of his or her relevant claim, in either or both of the following cases, namely—
(a) section 18(3) or (6) applies in respect of one or more of the respondents to the relevant claim and the claimant wishes to bring proceedings in respect of that claim against that respondent or those respondents (acting, unless he, she or they are no longer of unsound mind, by a guardian or a committee),
(b) the claimant wishes to bring proceedings in respect of his or her relevant claim against one or more persons whom he or she omitted, through a genuine oversight or ignorance of all of the facts relating to the matter, to specify in his or her application under section 11 as being a person or persons liable to him or her in respect of that claim.
(4) Rules under this section shall enable the Board to defer making a decision as to whether to issue an authorisation referred to in subsection (3) unless and until the relevant claim concerned has been the subject of an assessment or, as appropriate, a fresh assessment under this Act (which rules under this section may include a requirement for (but subject to those rules permitting the Board to waive that requirement where, due to lapse of time or other circumstances, compliance with that requirement would unduly interfere with the claimant’s right to bring proceedings)).
(5) An authorisation referred to in subsection (3) shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against the person or persons concerned and such an authorisation shall be in addition to any authorisation issued under another provision of this Act to the claimant.
Annotations
Amendments:
F52
Substituted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 21(h)(i)-(iii), S.I. No. 163 of 2023, without prejudice to the generality of subs. (2).
Editorial Notes:
E15
Power pursuant to section exercised (4.04.2019) by Personal Injuries Assessment Board Rules 2019 (S.I. No. 140 of 2019).
E16
Previous affecting provision: power pursuant to section exercised (12.05.2004) by Personal Injuries Assessment Board Rules 2004 (S.I. No. 219 of 2004); revoked (4.04.2019) by Personal Injuries Assessment Board Rules 2019 (S.I. No. 140 of 2019), art. 10.
Withdrawal of application under section 11.
47.—(1) A claimant may, in accordance with rules under section 46, withdraw an application made by him or her under section 11 at any time before an assessment is made in respect of the relevant claim concerned and, where a claimant does so, the Board shall cause no step or no further step under this Part in relation to the claim to be taken.
(2) If such an application is so withdrawn the claimant may not, in relation to the relevant claim concerned, either—
(a) make a fresh application under section 11, or
(b) bring proceedings.
(3) Where a claimant indicates that he or she wishes to withdraw an application made by him or her, the Board shall, by notice served on him or her, notify the claimant of the desirability of obtaining legal advice before withdrawing the application and the application shall not be regarded as withdrawn unless and until, 14 or more days having elapsed from the service of that notice, a withdrawal by the claimant, in the form specified by rules under section 46, of the application is received by the Board.
Assessment of relevant claims where proceedings concerned brought before commencement of section 6.
48.—(1) Rules under section 46 may enable the Board to cause an assessment of a relevant claim referred to in subsection (2) to be made under section 20 on the joint application of the parties to the proceedings concerned and provide, with any necessary modifications, for the application of such provisions of this Act as, in the opinion of the Board, are necessary and expedient in relation to the making of such an assessment and the assessment so made.
(2) The relevant claim mentioned in subsection (1) is one the subject of proceedings brought before the commencement of section 6.
Assessments to be made expeditiously.
49.—(1) It shall be the duty of the Board to ensure that assessments in respect of relevant claims are made as expeditiously as may be and, for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the making of assessments.
(2) In particular, and without prejudice to the generality of subsection (1), it shall, subject to subsection (4), be the duty of the Board to ensure that every assessment is made within a period of 9 months beginning on (without prejudice to subsection (3))—
(a) if there is only one respondent as respects the relevant claim concerned, the date on which it receives the respondent’s consent to an assessment being made under section 20 in relation to that claim,
(b) if there are 2 or more respondents as respects the relevant claim concerned—
(i) where only one of them consents to such an assessment being made in relation to that claim (irrespective of whether there is a failure of the kind mentioned in subsection (3) on the part of the other or others), the date on which it receives that consent,
(ii) where 2 or more of the respondents consent to such an assessment being made in relation to that claim (irrespective of whether there is a failure of the foregoing kind on the part of the other or others), the date it receives those consents or, if the dates on which it receives those consents are not the same, the earlier or earliest of the dates on which it receives one of those consents.
(3) If a failure of the kind referred to in section 14(1)(b) occurs on the part of the respondent or, if there are 2 or more respondents as respects the relevant claim concerned, on the part of each of them the period of 9 months referred to in subsection (2) begins on the expiry of the period specified in F53[the notice served under section 13(1)(b)] on the respondent or, as the case may be, each of the respondents.
(4) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the relevant claim concerned, to make an assessment in respect of it within the period referred to in subsection (2), the Board shall, by notice in writing served on the claimant and the respondent or respondents before the expiration of that period, inform each of them of the reasons why it would not be possible or appropriate (as the case may be) to make the assessment within that period and shall specify the date before which the Board intends that the assessment shall be made; the date so specified shall not be a date that falls more than 6 months after the end of the period referred to in subsection (2).
(5) Where a notice has been served under subsection (4), the Board shall take all such steps as are open to it to ensure that the assessment is made before the date specified in the notice.
(6) If the assessment is not made before that date, then unless the claimant consents in writing to the Board’s continuing to deal with the matter, it shall be the duty of the Board, as soon as may be after that date, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (8).
F54[(6A) Where a claimant who has consented under subsection (6), subsequently gives notice in writing to the Board of the withdrawal of his or her consent, it shall be the duty of the Board, as soon as may be after the date of the notice, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (8).]
F55[(7) A document referred to in subsection (6) or (6A) is also referred to in this Act as an “authorisation”.]
(8) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim.
Annotations
Amendments:
F53
Substituted (3.04.2019) by Personal Injuries Assessment Board (Amendment) Act 2019 (3/2019), s. 6, S.I. No. 123 of 2019.
F54
Inserted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 13(b), S.I. No. 28 of 2023.
F55
Substituted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 13(c), S.I. No. 28 of 2023.
F56
Substituted by Personal Injuries Resolution Board Act 2022 (42/2022), s. 13(a), not commenced as of date of revision.
Modifications (not altering text):
C25
Prospective affecting provision: subs. (3) amended by Personal Injuries Resolution Board Act 2022 (42/2022), s. 13(a), not commenced as of date of revision.
. . .
(3) If a failure of the kind referred to in F56[section 14(1)(c)(ii)] occurs on the part of the respondent or, if there are 2 or more respondents as respects the relevant claim concerned, on the part of each of them the period of 9 months referred to in subsection (2) begins on the expiry of the period specified in the notice served under F53[section 13(1)(b)] on the respondent or, as the case may be, each of the respondents.
. . .
F57[
Assessment of relevant claims where long term prognosis is awaited
]
F57[49A. (1) Without prejudice to section 49, and subject to subsection (5), where it appears to the Board having regard to—
(a) a report referred to in section 11(3)(c), or
(b) a medical examination under section 24(2),
that a long term prognosis in respect of the personal injury or injuries to which the relevant claim relates is unlikely to be available within the period referred to in section 49(2), the Board shall, by notice in writing served on the claimant and the respondent or respondents before the expiration of that period, inform each of them that it will not be possible or appropriate to make an assessment within that period.
(2) A notice under subsection (1) shall specify the period, which shall be determined by the Board, within which another medical examination (in this section referred to as a “further medical examination”) under section 24(2) shall be undertaken.
(3) Where a further medical examination has been completed and a long term prognosis has not been determined, the Board shall serve a notice in writing on the claimant and the respondent or each of the respondents stating that the long term prognosis has not been determined and requesting each of them to confirm in writing whether or not they consent to the Board continuing to deal with the matter.
(4) Where the claimant or any of the respondents has not consented to the Board continuing to deal with the matter under subsection (3), it shall be the duty of the Board to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (9).
(5) Where the period determined by the Board under subsection (2) is such that the Board determines that it would not be possible or appropriate to make the assessment within 2 years of the expiration of the period referred to in section 49(2), the Board shall by notice in writing served on the claimant and the respondent or respondents—
(a) inform each of them that it would not be possible or appropriate (as the case may be) to make an assessment within that period, and
(b) request each of them to confirm in writing whether or not they consent to the Board continuing to deal with the matter.
(6) Where the claimant or any of the respondents has not consented to the Board continuing to deal with the matter under subsection (5), it shall be the duty of the Board to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (9).
(7) Where a claimant or any of the respondents who has consented to the Board continuing to deal with the matter, subsequently gives notice in writing to the Board of the withdrawal of his or her consent, it shall be the duty of the Board, as soon as may be after the date of the notice, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (9).
(8) A document referred to in subsection (4), (6) or (7) is also referred to in this Act as an “authorisation”.
(9) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim.]
Annotations:
Amendments:
F57
Inserted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 14, S.I. No. 28 of 2023.
F58[
Reckoning of time for purpose of Statute of Limitations, etc.
F59[50. In reckoning any period of time for the purpose of any applicable limitation period in relation to a relevant claim (including any limitation period under the Statute of Limitations, 1957, section 9(2) of the Civil Liability Act 1961, the Statute of Limitations (Amendment) Act, 1991 and an international agreement or convention by which the State is bound)—
(a) the period beginning on the making of an application under section 11 in relation to the claim and ending 6 months from the date of issue of an authorisation under, as appropriate, section 14, 17, 32, F60[36, 49 or 49A] shall be disregarded insofar as it relates to one or more respondents named at the time of the application made under section 11, or
(b) the period beginning on the addition of a further respondent or respondents in relation to the claim and ending 6 months from the date of issue of an authorisation under, as appropriate, section 14, 17, 32, F60[36, 49 or 49A] or rules under section 46(3)(b) shall be disregarded insofar as it relates to such further respondent or respondents.]]
Annotations
Amendments:
F58
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 56(1)(d), commenced on enactment, subject to transitional provision in subs. (2).
F59
Substituted (3.04.2019) by Personal Injuries Assessment Board (Amendment) Act 2019 (3/2019), s. 7, S.I. No. 123 of 2019, subject to transitional provision in subs. (2).
F60
Substituted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 15, S.I. No. 28 of 2023.
Modifications (not altering text):
C26
Application of section restricted (10.04.2023) by Garda Síochána (Compensation) Act 2022 (33/2022), s. 20(h),S.I. No. 163 of 2023.
Modifications to application of Act of 2003
20. The Act of 2003 shall apply to, and in relation to, an application to which section 19 refers, subject to the following modifications and any other necessary modifications: …
(h) it shall be read as if section 50 of the Act of 2003 were deleted.
Non-admissibility of assessment in evidence.
51.—(1) An assessment made in respect of a relevant claim shall not be admissible in evidence in any proceedings between the claimant and the respondent or respondents in relation to the claim or be referred to in any originating document, pleadings, notice or affidavit relating to those proceedings.
(2) Subsection (1) does not apply if the proceedings concerned are in connection with the enforcement of an assessment that has been accepted or deemed to be accepted in accordance with this Part by the claimant and the respondent or one or more of the respondents.
F61[
Costs in proceedings where assessment not accepted by claimant.
51A.— (1) This section applies to a relevant claim if the following 2 conditions are satisfied in respect of that claim.
(2) Those conditions are that—
(a) the claimant either—
(i) has made a statement in writing, in response to a notice under section 30, that he or she does not accept an assessment of the relevant claim, or
(ii) is deemed, by virtue of section 31, not to have accepted that assessment,
and
(b) a respondent either—
(i) has made a statement in writing, in response to a notice under section 30, that he or she does accept the foregoing assessment, or
(ii) is deemed, by virtue of section 31, to have accepted the foregoing assessment.
F62[(3) Subject to subsections (6) and (7) and notwithstanding section 169 of the Legal Services Regulation Act 2015, if, as respects a relevant claim to which this section applies, a claimant brings proceedings in accordance with this Act, no award of costs nor any other order providing for payment of costs may be made in favour of the claimant where the amount of damages (if any) awarded on foot of, or accepted in settlement of, those proceedings does not exceed the amount of the assessment referred to in subsection (2).]
F63[(3A)
(a) Subject to subsections (6) and (7), if, as respects a relevant claim to which this section applies, a claimant brings proceedings in accordance with this Act a respondent, as the defendant in the relevant proceedings, shall be deemed to have made an offer of tender of payment pursuant to rules of court on the relevant date equal to the amount of the assessment in relation to the relevant claim concerned.
(b) Where the court finds that the defendant was not in a position to pay a sum equal to the amount of the assessment on the relevant date the court may, by special cause shown and mentioned in the order, direct that paragraph (a) shall not apply.
(c) In this subsection—
“relevant date” means the date on which—
(i) the respondent made a statement in writing, in response to a notice under section 30, that he or she accepted the assessment, or
(ii) the respondent was deemed, by virtue of section 31, to have accepted the assessment.]
(4) F64[In subsections (3) and (3A)] “proceedings” means proceedings against—
(a) one or more persons who consented, in accordance with this Part, to the making of an assessment of the relevant claim or on whose part a failure of the kind referred to in F64[section 14(1)(c)(ii)] occurred in relation to the relevant claim (or both), or
(b) both—
(i) one or more persons referred to in paragraph (a), and
(ii) one or more non-participating respondents (within the meaning of section 15),
whether or not the proceedings are also against one or more non-accepting respondents (within the meaning of section 34).
(5)F64[Subsections (3) and (3A) apply] notwithstanding sections 37 and 51.
(6) F64[Subsections (3) and (3A) do not apply] if, in the proceedings referred to in that subsection—
(a) a formal offer (within the meaning of section 17 of the Civil Liability and Courts Act 2004) is made by a defendant and the amount of the offer is not equal to the amount of the assessment referred to in subsection (2), or
(b) a payment into court of a sum of money in satisfaction of the cause of action or an offer of tender of payment, pursuant to rules of court, is made.
(7) F64[Subsections (3) and (3A) do not operate]—
(a) to prohibit an award of costs or the making of any other order providing for payment of costs, in the circumstances mentioned in that subsection, in favour of a claimant against a non-accepting respondent or respondents (within the meaning of section 34), or
(b) to confer on a court a power, in the circumstances mentioned in that subsection, to order a claimant to pay all or a portion of the costs of a non-accepting respondent or respondents (within the meaning of section 34).]
Annotations
Amendments:
F61
Inserted (11.07.2007) by Personal Injuries Assessment Board (Amendment) Act 2007 (35/2007), s. 1, commenced on enactment.
F62
Substituted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 16(1)(a), S.I. No. 28 of 2023.
F63
Inserted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 16(1)(b), S.I. No. 28 of 2023.
F64
Substituted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 16(1)(c)-(f), S.I. No. 28 of 2023.
Modifications (not altering text):
C27
Application of provision restricted (13.02.2023) by Personal Injuries Resolution Board Act 2022 (42/2022), s. 16(2)(a)-(b), S.I. No. 28 of 2023.
Amendment of section 51A of Principal Act
16.—. . .
(2) The amendments effected by subsection (1) shall not affect proceedings—
(a) in relation to which, before the commencement of this section, the claimant refused an assessment in response to a notice under section 30 of the Principal Act, or
(b) in relation to which the claimant was deemed, before the commencement of this section by virtue of section 31 of the Principal Act, not to have accepted an assessment.
F65[
Costs in connection with application under section 11 not taxable.
51B.— (1) This section applies irrespective of whether an assessment of the relevant claim referred to in this section has been made or whether any assessment so made has been accepted, or is deemed to have been accepted, under this Part by any person.
(2) If a claimant brings proceedings in accordance with this Act in respect of his or her relevant claim then, in any taxation of costs in those proceedings, no amount shall be allowed in respect of any fees or expenses incurred by the claimant in connection with the application he or she made under section 11 in respect of the relevant claim or in complying with any provision of this Act in respect thereto, other than fees or expenses referred to in section 35, 44 or 45.]
Annotations
Amendments:
F65
Inserted (11.07.2007) by Personal Injuries Assessment Board (Amendment) Act 2007 (35/2007), s. 1, commenced on enactment.
F66[Costs in proceedings where claimant or respondent does not comply with request of assessors
51C.(1) This section applies to a relevant claim where—
(a) the assessors have requested the claimant to furnish to them additional information or documents pursuant to section 23(1) and the claimant has not complied with that request,
(b) the assessors have requested the respondent or respondents to furnish to them additional information or documents pursuant to section 23(2) and the respondent or respondents has or have not complied with that request,
(c) the assessors have requested the claimant or the respondent or respondents to provide assistance to retained experts or furnish information or documents or co-operate with those experts pursuant to section 23(4) and the claimant or the respondent or respondents, as appropriate, has or have not complied with that request, or
(d) the assessors have requested the claimant to submit himself or herself to a medical examination pursuant to section 24(2) and the claimant has not submitted himself or herself to the medical examination.
(2) If as respects a relevant claim to which this section applies, a claimant brings proceedings in accordance with this Act, the court may, in its discretion, taking into account any failure to comply or submit in the manner specified in subsection (1) and all other relevant circumstances, order that—
(a) no award of costs nor any other order providing for payment of costs may be made—
(i) in favour of the claimant where subsection (1)(a) or (1)(d) applies,
(ii) in favour of the defendant or defendants where subsection (1)(b) applies, or
(iii) in favour of the claimant or the defendant or defendants, as appropriate, where subsection (1)(c) applies,
(b) the claimant pay all or a portion of the costs of the defendant or defendants where subsection (1)(a), (c) or (d) applies, or
(c) the defendant or defendants pay all or a portion of the costs of the claimant where subsection (1)(c) applies.
(3) This section applies notwithstanding section 51.]
Annotations
Amendments:
F66
Inserted (3.04.2019) by Personal Injuries Assessment Board (Amendment) Act 2019 (3/2019), s. 8(1), S.I. No. 123 of 2019, subject to transitional provision in subs. (2).
Editorial Notes:
E17
The section heading is taken from the amending section in the absence of one included in the amendment.
Cases
O’Brien -v- Personal Injuries Assessment Board
[2008] IESC 71
Composition of Court: Murray C.J., Denham J., Macken J.
Judgment by: Denham J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Denham J.
Appeal dismissed – affirm High Court Order
Murray C.J.
Outcome: Dismiss
THE SUPREME COURT
[S.C. No: 240/2007]
Murray C.J.
Denham J.
Macken J.
Between/
Declan O’Brien
Applicant/Respondent
and
The Personal Injuries Assessment Board
Respondent/Appellant
and
The Law Society of Ireland
Amicus Curiae
Judgment delivered the 19th day of December, 2008 by Denham J.
1. The right to legal representation is at the core of this appeal.
2. This is an appeal by the Personal Injuries Assessment Board, the respondent/appellant, hereinafter referred to as ‘PIAB’, from the judgments of the High Court (McMenamin J.) [2007] 2
I.R. 1, and [2007] 2 IR 1 at p.40. Declan O’Brien, the applicant/respondent, is referred to as ‘the applicant’. The Law Society of Ireland is before the Court as an amicus curiae by order of this
Court.
3. There was a single issue determined by the High Court and that issue is before this Court on appeal.
4. The High Court declared, on the 11th March, 2008, that:-
“[PIAB] in declining to accept or act upon the authorisation dated the 16th August, 2004 (described as “a confirmation and authority by client”) by corresponding directly with the Applicant (and copying such correspondence to his Solicitors) is acting in breach of s. 7 of the Personal Injuries Assessment Board Act 2003 or without authority under any other provision of the Act.”
5. Having regard to that declaration the High Court did not find it necessary to rule on the balance of the issues referred to in the list of issues agreed between the parties.
6. The facts of this case were stated by the learned trial judge. With the benefit of his findings, I summarise the relevant facts in the following paragraphs.
7. The applicant is a single man who, at the relevant time for this action, was employed at the premises of Galtee Meats, in Co Westmeath, as a boner in a meat factory, and was working on a
sub-contract to a company known as Ard Meats Limited. In his job he boned carcasses of beef at a table.
8. The applicant alleges that in the course of his employment on the 5th November, 2001 he was involved in an accident. He claims that an overhead line which was carrying carcasses of meat
collapsed, as a result of which he was struck on the back and sustained injuries. He was taken to hospital and had a bone scan. As a result he was certified ‘off-work’ for a period of approximately
four months. It is claimed that he had a gradual return to work with periods off work when his back pain became acute. The applicant returned to work in February 2002. However, he claims that
he was able to produce only 75% of his previous output and that his earnings have suffered. He claims that he suffers pain and aches at the end of a day’s work.
9. The applicant did not commence proceedings immediately after the accident. However, on the 12th August, 2004 he attended at a solicitor’s office and instructed Mr. Denis Boland of P.V.
Boland & Co.
10. The applicant was told that under the Personal Injuries Assessment Board Act 2003, ‘the Act of 2003’, his claim would have to be initiated by applying to the PIAB.
11. Time was running in the case. The three year limitation period would run its course approximately eleven weeks after the applicant consulted his solicitor. Prior to the Act of 2003 the
applicant’s solicitor would have protected his position regarding the three year time limit by issuing a plenary summons in the High Court.
12. Mr. Boland, the applicant’s solicitor, on the 16th August, 2004 telephoned and had a conversation with a Ms. Jo Crowley, at a call centre which acted as an agent to which PIAB
outsourced the business of processing claims. Mr. Boland gave particulars of the claim and expressed his concern regarding the Statute of Limitations. He indicated that he would be sending an
authority to PIAB on behalf of the applicant, this would require PIAB to deal directly with him as the applicant’s solicitor. Mr. Boland was asked for the applicant’s phone number.
13. Within a few hours Ms. Crowley contacted the applicant on his mobile phone. By the end of the conversation the applicant had formed the view that he was being told by Ms. Crowley that
he did not really need the services of a solicitor and that all he needed to do was to send a medical report to the Board.
14. The learned trial judge held that the applicant’s view was erroneous.
15. The applicant was resentful of what he perceived as the position of PIAB.
16. Mr. Boland completed the application form, which he had obtained from PIAB. He also completed a ‘Confirmation and Authority’ document signed by the applicant. By this document Mr.
Boland had authority: (1) to act with reference to the applicant’s claim before PIAB, (2) to receive all settlement cheques, (3) solely to deal with all correspondence on behalf of the applicant, and
(4) to act in any subsequent court proceedings. The document also recited the applicant’s liability for all necessary outlay and legal costs incurred in proceedings before PIAB and acknowledged
that PIAB would not pay the applicant’s legal costs.
17. Mr. Boland wrote to the consultant surgeon who had treated the applicant. He was concerned because he had not received a medical report. He was also concerned that in the absence of
a medical report the application to PIAB would not be considered complete. In other words he intervened to expedite matters.
18. On the 19th August, 2004, PIAB wrote directly to the applicant. This was contrary to the procedure proposed by the applicant and Mr. Boland and at variance with the authority which had
been given to PIAB.
19. On the 24th August, 2004, Mr. Boland wrote to PIAB complaining that they had not recognised the authority he had furnished, which authorised him to act for the applicant. He also
indicated his difficulties in getting a medical report and his concern about not getting one before the expiry of the three years under the Statute of Limitations.
20. On the 26th August, 2004, Mr. Boland received a call from a Mr. Hewson of PIAB indicating that it would not deal directly with solicitors, but that PIAB would furnish copy
correspondence to Mr. Boland.
21. It was stated that the applicant’s claim would not be registered without a medical report.
22. There was correspondence and telephone calls in September. It emerged that PIAB would register the claim if the solicitor had not obtained a medical report for his client by the 31st
October, 2004.
23. On the 7th September, 2004, the applicant initiated judicial review proceedings seeking an order of mandamus directing PIAB formally to record and register the applicant’s claim to stop
the Statute of Limitation from running in respect of his claim, and to register his claim, having recorded it on the 19th August, 2004. An injunction was also sought directing PIAB to stop and cease
the interference in the client/solicitor relationship between the applicant and his solicitor, and an order seeking that PIAB abide by the irrevocable authority signed by the applicant on the 16th
August, 2004, in relation to his claim.
24. There were appearances in the High Court. The medical report arrived from the medical consultant, signed on the 18th October, 2004, and was furnished to PIAB, and the claim was
registered on the 22nd October, 2004. Therefore, it was unnecessary to pursue the relief of mandamus.
25. On the 1st December, 2004, the Law Society was permitted to appear in the proceedings as an amicus curiae, [2005] 3 I.R. 328.
26. Issue Paper
An issue paper was agreed by counsel for the parties. The first issue was whether PIAB, in declining to accept or act upon the authorisation dated the 16th August, 2004, and by corresponding directly with the applicant (and copying such correspondence to his solicitor), was acting in breach of s.7 of the Act of 2003.
27. The High Court
The High Court held that PIAB had not succeeded in demonstrating how its interference with the lawyer/client relationship was necessary, expedient or incidental to its functions.
28. The learned High Court judge referred to several significant features of the case to which he had regard, being:-
“(a) the fact that the matters in issue before [PIAB] are truly ones of substance. They relate to the applicant’s property right in his cause of action in tort. They are connected (albeit indirectly) with his constitutional right of access to the courts. These are matters of no small moment.
(b) The arrogation by [PIAB] to itself of the power to prescribe
(i) the form of authority, and
(ii) the manner in which communication shall take place between itself and claimants and/or their solicitors; this general practice albeit flexible in some aspects is significantly inflexible insofar as it relates to the applicant;
(c) the absence of an express authority contained within the terms of the Act of 2003 permitting of the adoption of such an approach. The approach imposes conditions which are not prescribed by any primary or secondary legislation;
(d) the specific recognition within the terms of the Act of 2003 of the rights to legal advice. This if anything highlights the potentially serious legal consequences of the entire procedure for a claimant;
(e) the gravity of the consequences of the procedures and their significance for the claimant. This is underscored by the fact that in certain circumstances, such as in respect of vulnerable claimants (s. 29) and withdrawal of applications (s. 47), the issues arising are of such seriousness that the Act of 2003 recognises the desirability of claimants obtaining legal advice before further steps are taken.”
29. The learned trial judge considered that there is implicit in the case the fundamental issue of the right to retain legal representation in contentious matters. He held that the right to legal
representation has application in administrative procedures when the matters in issue may have serious consequence to the parties or impinge upon their rights.
30. The High Court held, at p.38:-
“At a number of points the Act of 2003 provides for the claimant obtaining legal advice. Why is this so? Clearly, it is because such steps and such decisions may have serious legal consequences for a claimant. The consequence of successfully pursuing a claim before [PIAB] is therefore by no means insignificant. The claimant may obtain compensation at an early date and such compensation is achieved without risk of an adverse award of costs.”
31. The learned trial judge continued, at p.39 that:-
“Thus, even if I accept that the procedures before [PIAB] are administrative in nature, I am satisfied that by reason of their complexity, importance and potential consequences, they are such as to justify, not only access to legal advice, but also, such rights to legal representation as have been identified by the applicant in this case. Nor are such rights rendered irrelevant by the fact that [PIAB] does not conduct hearings.”
32. The learned High Court judge concluded by holding that the impugned conduct is without warrant under s.7 or any other section of the Act of 2003.
33. In light of the above decision the High Court held that it was unnecessary to consider any other issues.
34. Declaration
The High Court ordered a declaration, [2007] 2 IR 40, in the following terms:-
“[PIAB] in declining to accept or act upon the authorisation dated 16th August, 2004 (described as ‘a confirmation and authority by client’), by corresponding directly with the applicant (and copying such correspondence to his solicitors), is acting in breach of s.7 of the Personal Injuries Assessment Board [Act] 2003 or without authority under any other provision of the Act.”
35. Appeal
PIAB filed a notice of appeal against the judgments and order of the High Court. Thirty four grounds of appeal were filed, referring to submitted errors of law and/or fact of the High Court. PIAB seeks to have the applicant’s claim dismissed and for an order for costs in both the High Court and this Court.
36. Cross-Appeal
The applicant cross-appealed from the judgments and order of the High Court insofar as it limited the costs awarded to the applicant by declining to award certain specified costs. The cross-appeal will not be addressed in this judgment but will be a matter for consideration at a later stage in the proceedings.
37. Submissions on behalf of PIAB
Oral submissions on behalf of PIAB (written submissions having been filed) were made to the Court by Mr. Eoghan Fitzsimons, S.C.. Counsel referred to two issues of principle which arise on this appeal. On the one hand, the right to legal representation and that there should be no interference with the solicitor/client relationship. On the other hand, that PIAB is in charge of running its organisation and that it is not for others (e.g. the Law Society) to tell it how to conduct its business. Counsel referred to a number of matters, inter alia, (i) PIAB considered itself to be an administrative body with an administrative task, which can have no legal consequences for a person. Counsel referred to pages 20 to 23 of the judgment, which sets out PIAB’s practice with regard to solicitors acting for claimants, and said these findings were not contested by PIAB. (ii) It was submitted that PIAB acts solely in an administrative capacity, and that there are no direct determinative consequences to the applicant, it does not determine a dispute. (iii) It was submitted that the functions of PIAB are limited, that PIAB makes assessments in easy claims. Complex cases are excluded. The assessments are not binding on the parties, hearings are specifically excluded, in this purely administrative task. (v) Counsel stressed that PIAB’s case was that the Act of 2003 envisaged that PIAB could deal directly with the client. That the applicant had not demonstrated that his rights override PIAB’s rights to run their organisation as the Oireachtas intended it to do. Counsel made the argument that PIAB has the right to override a person’s wish to have a solicitor represent him. (vi) Counsel accepted that there is a right to be legally represented, but submitted that a person can be legally represented but that PIAB has the right to write directly to an applicant, and that PIAB would recognise the legal representation. (vii) Counsel submitted that while no specific provision of the Act of 2003 expressly authorised the practice of PIAB, it is implied, or is covered by section 54. (viii) Counsel submitted that there is no basis upon which to find that PIAB’s practice was in breach of section 7. (ix) As to whether the practice is authorised by any other section, counsel referred to and relied upon section 54(1) and (2). Reliance was placed on the terms “necessary”, “expedient”, or “incidental”. (x) It was submitted that the policy assists the swift processing of claims, omits delay, and reduces unnecessary legal costs. (xi) The Oireachtas had passed the legislation in the interest of the common good, to reduce costs and expenses. (xii) Counsel submitted that the learned trial judge erred in his approach to the issue, that he went too far in construing the statute, that he accepted that the constitutional right to legal representation lay with the applicant in dealing with PIAB.
38. Submissions on behalf of applicant
Oral submissions were made to the Court on behalf of the applicant (written submissions having been filed) by Mr. Paul Gardiner, S.C. He attacked the assertion that the policy assisted swift processing of claims, inter alia. He accepted that PIAB were entitled to adopt policies that were expedient, objectively so, but not when only subjectively so viewed by PIAB. It was submitted that the policy was an interference in the solicitor/client relationship. Examples were given of letters required under PIAB’s scheme. Further, that PIAB gives advice to applicants which affects the solicitor/client relationship. Also, that PIAB is involved in contentious issues, for while liability is not in issue, quantum is. Counsel submitted that the policy established by PIAB is to cut out solicitors but that the Act does not say that. The Act of 2003 does not alter the solicitor/client relationship, but simply adds the additional administrative process. Further, that there are legal consequences, e.g. if an applicant does not take an assessment and then goes to court he is in peril on costs. Also, obviously in this case, there are the Statute of Limitations issues.
39. Submissions on behalf of The Law Society
Mr. Dermot Gleeson, S.C., counsel on behalf of the Law Society, which had also filed written submissions, made oral submissions to the Court. He submitted that if the Oireachtas intended lawyers to be excluded it would have said so, but it did not. He submitted that the issues before PIAB have substantial consequences. He pointed out that the right to legal representation arises outside litigation. He submitted that the contention of PIAB that the Act of 2003 prohibits legal representation is unsustainable. He submitted that the right to legal representation and to legal advice is so fundamental that a court should be very slow to say that its exclusion was inferred in the Act. Counsel drew the Court’s attention to the different approach by PIAB to a claimant and to a respondent.
40. Decision
I have considered carefully the oral and written submissions of the parties and the amicus curiae. I would affirm the order of the High Court, and dismiss the appeal. PIAB should recognise the right to legal representation and contact the solicitor of the applicant accordingly. However, that does not mean that PIAB may not have a policy of also informing a claimant of the position of his case as it proceeds. Thus a copy of any letter PIAB sends to the applicant’s solicitor may be sent by PIAB to the applicant at the same time. My reasons are as follows.
41. Alternative resolution
The long title of the Act of 2003 provides that it is an Act to enable, in certain situations, the making of assessments without the need for legal proceedings to be brought for compensation for personal injuries, to prohibit, in those situations, in the interest of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the assessment or certain other circumstances apply, to establish a body, PIAB, and define its functions. Thus it marks the creation of PIAB as an alternative forum for assessments in personal injury cases, in certain situations, and to prohibit the initiation of the process in the courts. This reflects a policy decision of the Oireachtas to establish a board, in the alternative to or prior to court proceedings.
42. The establishment of alternative methods of resolving issues, alternative to court proceedings, has great merit in that issues more appropriate to alternative methods of resolution may be
decided outside the Courts. Thus, for example, the resolving of family law issues by mediation may be very beneficial and more appropriate for the family than the adversarial court process. Also,
the arbitration assists the resolving of issues. Indeed, the Commercial Court uses case management very effectively so that issues which may be settled are, and the critical issues only, on which
settlement may not be obtained, proceed. Thus, parties may be well served in general by having alternative methods of resolving issues.
43. PIAB was established by legislation and thus its functions and powers were created by statutes. If an alleged function or power is not to be found in the Act of 2003 then PIAB does not
have such a power or function. PIAB is an administrative body with administrative functions which apply to the assessment of damages prior to a case for damages proceeding in the courts.
44. Legal Representation
Legal representation is a right of special importance in common law jurisdictions where the legal system is adversarial. This right is referable to court proceedings, prior to court proceedings, and in situations where there may be serious consequences for a person and the Oireachtas has not exercised a constitutional balance excluding legal representation. The applicant has a right to access the courts and to litigate to recover damages for personal injuries. To advance these rights the applicant is entitled to legal representation. This right does not apply solely to litigation in court. While the process in PIAB is not a court it may conclude the claim with an assessment, or it may be a process preliminary to court proceedings. Thus the process before PIAB is a critical part of the applicant’s claim.
45. Any restriction of the right to legal representation would have to be addressed clearly in legislation. It could be stated expressly in legislation. Or it could be inferred if it were compellingly
clear from the words of the statute.
46. The Act of 2003 does not exclude expressly lawyers from acting for claimants in PIAB. The Oireachtas did not expressly state such intent in the legislation
.
47. Thus it is necessary to construe the Act of 2003 to see if it is compellingly clear from the words of the statute that the Oireachtas intended to bar lawyers from PIAB.
48. A key issue raised was the meaning of s.7 of the Act of 2003. Section 7 provides:-
“7.—(1) Nothing in this Act is to be read as affecting the right of any person to seek legal advice in respect of his or her relevant claim and no rule shall be made under section 46 that affects that right.
(2) Subsection (1) shall not be read as requiring any procedure to be followed by the Board or hearing to be conducted by it that would be required to be followed or conducted by a court were the relevant claim concerned to be the subject of proceedings.”
Clearly this section protects the right of any person to seek legal advice. It has been submitted that this does not include a right to legal representation. However, if the Oireachtas had intended to exclude lawyers from PIAB it could have said that clearly. This would be the section of the Act relevant to the issue, and yet the Oireachtas did not expressly exclude lawyers.
49. As it is not stated expressly in the Act of 2003, it was for PIAB to indicate how its policy of writing to claimants and copying letters to solicitors may arise within the Act.
50. The High Court held that PIAB had not demonstrated how its interference with the lawyer/client relationship is necessary, expedient or incidental to its functions. This reflects the wording of s.54 of the Act of 2003. Section 54 provides that:-
“(1) The principal functions of the Board shall be—
(a) to arrange for the making, in accordance with this Act, of assessments of relevant claims the subject of applications to it under section 11.
(b) to prepare and publish a document (which shall be known as the “Book of Quantum”) containing general guidelines as to the amounts that may be awarded or assessed in respect of
specified types of injury,
(c) to cause a cost-benefit analysis to be made of the legal procedures and the associated processes (including those provided for by this Act) that are currently employed in the State for the
purpose of awarding compensation for personal injuries,
(d) to collect and analyse data in relation to amounts awarded on foot of, or agreed in settlement of, civil actions to which this Act applies, and
(e) to perform any additional functions conferred on the Board under section 55.
(2) The Board shall have all such powers as are necessary or expedient for, or incidental to, the performance of its functions under this Act.
(3) The Board may perform any of its functions through or by any member of the staff of the Board duly authorised in that behalf by the Board.”
[Emphasis added]
51. PIAB asserted that not only was it entitled to adopt the policy which it did, but that it was obliged to do so under the Act. Further, that s.54(2), which states that the Board shall have all
such powers as are necessary, or expedient for, or incidental to, the performance of its powers, empowers PIAB to deal directly with claimants, as that is advantageous to, and is practical, and
assists, in the reduction of costs, and the advancement of efficient management. Further, that the policy can be justified under the doctrine of implied powers. I would reject these grounds.
52. PIAB is empowered to make assessments of relevant claims. It has such powers as are necessary, or expedient or incidental to the performance of its functions. The terms “necessary”,
“expedient”, or “incidental” should be considered disjunctively. PIAB submitted inter alia that they raised concepts which would be advantageous to or of a practical value to PIAB.
53. PIAB argued that the policy reduced legal costs and would lead to greater efficiency. The learned trial judge held that these were not reasons which could justify the policy. I agree, for, not
only are they not sufficient reasons for such a policy which interferes with a fundamental right, but they are not valid. A claimant cannot recover his costs for legal representation at PIAB, thus costs
are not in issue in PIAB. As to a claimant’s expenses, it is a core concept in the common law that a person is entitled to choose to have legal representation. If in time it transpires that more
claimants process their claim in PIAB by themselves, that is their entitlement. But if they wish, because of time constraints, or fear of dealing with institutions themselves, or any other reason, to have
legal representation, then they are so entitled to, in circumstances where the Oireachtas has not excluded the exercise of that right. As is the norm, the legal representatives will have the interests of
the claimant to the fore.
Nor has the claim of efficiency been proved. Indeed, the policy seems to make for more work. This was addressed by the learned trial judge, and I would not intervene in that analysis.
54. I am satisfied that the policy of PIAB has not been shown to be necessary, expedient or incidental to the functions of PIAB. I would affirm the judgment of the High Court on this aspect of
the case.
55. The evidence in the High Court showed that PIAB dealt with respondents’ agents and insurers, thus the policy of refusing to deal with legal representatives did not apply to the respondents.
Thus the submissions made by PIAB that it is required to deal with a claimant and not his/her agent was one sided. An equal approach is fair. Any other approach, especially as by their very nature
claimants would not have the skill or expertise of respondents’ agents or insurers, would be open to question on grounds of fairness, even if it were validly grounded on the Act, which it is not.
56. The Act itself contemplates that a claimant may deal with PIAB other than by himself, which by common practice means a solicitor. For example, s.79 of the Act of 2003 provides for the
service of documents at a claimant’s residence or “in a case in which an address for service has been furnished at that address”. This illustrates that a person may choose how to deal with PIAB. If
PIAB is given an address it should, unless there are good reasons to the contrary, comply with the request.
57. I would adopt and affirm the judgment of the High Court that the policy does not fulfil any function of the Act of 2003, does not expedite matters, and does not save costs.
58. PIAB submitted that it is a purely administrative body, that it is not a court, and that there are no proceedings before it. That the process is simply a postponement of court proceedings.
However, I am satisfied that the process before PIAB has serious consequences for a claimant. Thus, even if it is accepted for the purpose of the analysis that the process is purely administrative, the fact that there are serious consequences for an applicant is an important factor. It should be noted, however, that even though PIAB submitted that its decision is not determinative there are such examples. For example, an applicant may ask for an independent medical report, which would be arranged by PIAB. In that situation PIAB would be determining as between medical reports.
59. The fact that the process in PIAB is not adjudicative does not exclude the right to legal representation. There are many situations which are not adjudicative in which a person may wish to
have a lawyer by his side. The lawyer places the person on an equal footing. It creates a situation which is even handed. The concept of equality may be noted in this situation where the policy of
PIAB permits the respondents to have agents, but not the claimants. PIAB has no statutory warrant for such a policy.
60. Further, since s.51A(3) was inserted in the Act of 2003 by s.1 of the Personal Injuries Assessment Board (Amendment) Act 2007, if a claimant refuses an assessment and pursues a claim in
the courts and at the conclusion of that case he fails to obtain an award greater than that made by PIAB, the claimant will not be entitled to his costs, and a court may, in its discretion, order the
claimant to pay all or part of the respondent’s costs. Clearly, as a consequence of this fact alone, and ignoring the many other significant factors, a claimant’s claim before PIAB should be processed
very carefully and professional guidance may be very important. The lack of legal representation could have serious consequences for a claimant.
61. As the exclusion of legal representation is not expressly provided for in the Act of 2003, it is necessary to construe the Act to see if it may be inferred. Several rules of construction were
raised. I do not consider the rule of construction expressio unius est exclusio alterius, as advanced by PIAB, to be of assistance. Nor do I find the rule in pari materia to be of assistance. Both
are valid rules but are not of assistance to the construction of this Act, which has established a unique body. Further, the Acts put before the Court by PIAB are not of any assistance in construing
the provisions of the Act of 2003.
62. In the construction of statutes the primary rule is that they should be construed according to the intent expressed in the words of the Act itself. If the words of the statute are precise then
they should be given their ordinary and precise meaning. If the meaning is not plain then inferences may be drawn. But a court may not legislate.
63. Thus the first consideration is whether the language of the Act of 2003 is clear. I am satisfied that it is, it did not exclude legal representation.
64. However, even proceeding (which is not necessary) and considering the Act for inferences, I would also hold that PIAB had failed to establish its case. In construing the Act, and its
sections, there is no inference to be drawn that the Oireachtas intended to exclude lawyers acting for claimants at PIAB.
65. To take any further steps would be to speculate. Indeed, it would be to advance into the territory of the legislature. The Court is not entitled to go outside the words of the Act, while at the
same time trying to give effect to the intention of the Oireachtas. It cannot add words to the Act or read words into the Act which are not there.
66. Further, in construing the Act of 2003 I assume that the Oireachtas did not intend to breach a constitutionally protected right. On this ground alone, and not including other grounds
advanced and accepted in the High Court and here, I am satisfied that the Act of 2003 and s.54 in particular may not be construed so as to confer on PIAB the power to adopt a policy by which it
refuses to correspond directly with the legal representative of a complainant. This is a direct interference with the applicant’s right to legal representation and an indirect interference with the
applicant’s right of property in his personal injuries action. There is no foundation for such a policy in the Act of 2003.
67. The terms of the Act do not establish an administrative process of direct communication between PIAB and the claimants. For example, s.29, which was advanced as being a list of persons
who may act on behalf of a claimant, does not relate to the issue of agency, but to who may act in place of a person who is unable, for reasons such as minority or incapacity, to bring a case in their
own name.
68. I am satisfied that not only is PIAB’s policy not expressly stated in the Act of 2003, but it is also not compellingly clear that it arises by necessary implication from the Act of 2003.
69. PIAB is a statutory body in charge of running its organisation. It is a statutory body established by the Oireachtas. Clearly the Act of 2003 established a body which initially is in lieu of
court proceedings, with a procedure which is intended to be claimant friendly and easy to access, and with the aspiration that claimants could process the claim themselves without the assistance of a
legal representative. Thus while PIAB is required to accept the authorisation, and write to the applicant’s solicitor, this does not exclude PIAB from informing the applicant also. This could be done
by copying the correspondence issued to the legal representative to the claimant. There is nothing in the Act of 2003 which prohibits such a policy. This would advance the policy of PIAB as an
alternative forum, less formal than a court. It would also keep a claimant informed of the process. Such a practice, while it would recognise the applicant’s choice of having a representative, would
also advance the policy of PIAB. It has the benefit, for any claimant, and the applicant in this case, that it would keep him informed of the state of his claim.
70. Conclusion
At issue in this case is the policy of PIAB whereby it would write to a claimant and not his solicitor, although it would send a copy of the letter to his solicitor. PIAB asserted that it was empowered to adopt this policy by the Act of 2003. The only issue determined by the High Court, and on appeal to this Court, is whether PIAB is entitled by the Act of 2003 to make direct contact with a complainant or whether it is required to make contact with his solicitor, if a complainant, as was the position of the applicant, has appointed a solicitor to act on his behalf.
The right to legal representation is a fundamental right. The Act of 2003 does not expressly exclude lawyers from acting for claimants in PIAB. Nor, for the reasons given by the High Court and affirmed in this judgment, am I satisfied that a power to establish such a policy by PIAB may be inferred from the words of the Act of 2003. It may be that more people will process their claim in PIAB themselves as time goes by. But, lawyers not being excluded from PIAB by the statute, a claimant may choose to be legally represented. This choice may be taken for many reasons, such as a lack of time to attend to the claim, or a fear of dealing with institutions, or general illness while not rendering a person incapable affects their situation, or any other reason. The right to legal representation is a right which a claimant may exercise, in the knowledge that costs of legal representation will not be paid by PIAB. In such a situation PIAB should accept and act upon an authorisation such as was given in this case.
Even accepting that the process before PIAB is administrative, it may have serious consequences for a claimant. There may be consequences for refusing an assessment in PIAB and achieving a lesser amount subsequently in court. The process before PIAB is an alternative process, an alternative to a court process, however, it has significant consequences for a claimant.
If the Oireachtas intended PIAB to be a lawyer free zone it would have said so. The Oireachtas did not expressly exclude the right to legal representation. Nor are the words of the statute so clearly compelling that it may be inferred from the Act, under the rules of construction. Thus PIAB has no power to establish such a policy. Also, it is reasonable to assume that the Oireachtas did not intend to interfere, by inference or by implication, with the fundamental right to legal representation. A court would be slow to draw such an inference of such a breach of fundamental right. In this case I am satisfied that the statute did not intend to interfere with the right of legal representation.
Therefore, the policy of PIAB is an interference in the solicitor/client relationship, but it has no foundation in the Act of 2003. If the applicant wishes to have a legal representative, or considers that it would be in his interest to have a legal representative, then he is entitled to such representation.
However, PIAB is entitled under the Act of 2003, in the managing of its business, to keep a claimant informed of the process. PIAB is not a court. It is an alternative resolution process. It does not have the formality and rules of a court. Thus PIAB would be entitled to inform a claimant by, for example, sending to him a copy of any letter sent to his solicitor, at the same time as sending that letter. This keeps the claimant informed, is consistent with PIAB’s policy, and within its functions under the Act of 2003.
Consequently, I would dismiss the appeal.