Wednesday 11 December 2019

Charlie Weston: 'Dear Chief Justice Clarke... please ensure the judiciary at last tackles blight of compo culture'

Top judge: Mr Justice Frank Clarke says the judiciary stands ready to play its part in recalibrating personal injury awards. Photo: COLIN O'RIORDAN
Top judge: Mr Justice Frank Clarke says the judiciary stands ready to play its part in recalibrating personal injury awards. Photo: COLIN O'RIORDAN
Charlie Weston

Charlie Weston

Dear Chief Justice Frank Clarke.

A huge responsibility now rests on your shoulders and on those of the seven judges who are to form a committee to recalibrate personal injury awards in this State.

It is arguably unfair that it is judges who have been asked to sort out a problem that has dogged this country for decades, but that is where we find ourselves.

You can blame your former colleague, now retired High Court president Nicholas Kearns, for landing the judiciary with this one after his excellent work chairing the Personal Injuries Commission.

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Be that as it may, the role you have been given is hugely important. Nothing less than the fabric of Irish society is at stake here. We have become the laughing stock of the world with our out-of-control compo culture.

I listened intently to your speech on Tuesday to the Insurance Ireland conference, which was themed 'The cost of insurance fraud to society'.

You explained how the judiciary stands ready to play its part in recalibrating personal injury awards. You said you had selected the members of the personal injuries committee that forms part of the new Judicial Council, and it was ready to get going as soon as it was formally established.

This will mean the committee will be able to "hit the ground running" when it is formally set up, you explained.

Procedural issues mean the personal injuries committee of the Judicial Council can't be put in place just yet.

You mentioned that you and your colleagues read the papers, and are aware of the issue. Most analysts agree that high award levels, not to mention fraudulent claims, are a major contributor to the insurance crisis we are experiencing.

Frankly ludicrously high awards for minor injuries are all too common in the courts.

Jobs are being lost, leisure facilities are being forced to close, community groups are having to scale back their activities and children's facilities are being eroded. Drivers are suffering from elevated premium costs.

Not all of this is the fault of elevated court awards, and not for a minute would I defend dual pricing, overcharging and profit-maximising insurers. But there is a real issue about the cost of insurance and, indeed, the very availability of cover, which has much to do with high cost awards.

As the most senior judge in the land you are only too aware of this. Our out-of-control compensation culture has made this country a laughing stock. It is also bringing the law into disrepute. Claimants know that there is easy money to be had for even frivolous claims.

You will have seen that more than 90pc of whiplash patients attending a Dublin pain management clinic failed to return for treatment once their legal action was completed.

There is no downside for those found to have exaggerated or falsified their claims.

Mr Justice Michael Twomey recently warned solicitors, barristers and medical consultants about the risks their services will be used to facilitate the bringing of fraudulent claims. But where is the Law Society and the Bar Council when it comes to clamping down on those members who knowingly facilitate false claims?

And even when some judges throw out cases there is no consistency about the awarding of legal costs against dishonest claimsters.

Yes, you explained to the insurers that the bar is higher to prove fraud in a criminal case than in a civil case.

But surely you have to acknowledge that the courts are being abused by some plaintiffs who lack any moral fibre and their legal representatives?

The hope of Mr Justice Kearns, in his seminal report, was that more reasonable award levels would discourage the rush to litigate, particularly by those with a passing acquiescence with the truth.

And there is an urgency to all of this. You mentioned that it is important that the new personal injuries committee does not rush its work, for fear of a challenge.

That is all well and fine but we are running out of time.

You also mentioned that the new committee will need to conduct its own research.

But there has been a fine report on award levels by Mr Justice Nicholas Kearns, while a number of Cost of Insurance Working Group reports have also been produced already. So there is no need to reinvent the wheel.

An historic opportunity presents itself for the judiciary to sort out what is a blight in this country. Consumers, community groups, businesses and charities are pleading with you and your colleagues to act decisively on this.

Irish Independent

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