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Sunday 21 April 2019

Chief Justice complains to Minister over 'leak to media' of letter containing proposals to cut whiplash payouts

Mr Justice Frank Clarke Photo: Colin O’Riordan
Mr Justice Frank Clarke Photo: Colin O’Riordan
Shane Phelan

Shane Phelan

The Chief Justice has complained to the Justice Minister about what he described as “a leak to the media” of a letter containing proposals to bring down the size of awards for minor injuries such as whiplash.

The letter was sent by Justice Minister Charlie Flanagan to Mr Justice Frank Clarke last month, but its contents appeared in a number of newspapers before the Chief Justice had received it.

In a strongly worded note, a copy of which has been obtained by, Mr Justice Clarke told Mr Flanagan it was “particularly disconcerting” to read the contents of the letter before it had arrived.

“The only conclusion which I can reach is that there has been a leak to the media of the letter,” the Chief Justice wrote.

“While I am sure that the leak did not come from you, I am afraid I must conclude that it did come from someone on the Government’s side.

“I have to say that I find it particularly unhelpful that someone on the Government’s side has seen fit to leak the letter before it has even been received.

“Such action does nothing to foster a spirit of co-operation on matters of mutual interest.”

The episode is something of an embarrassment for the Government which is under pressure over the slow pace of insurance cost reform.

Justice Minister Charlie Flanagan. Picture: Collins
Justice Minister Charlie Flanagan. Picture: Collins

Mr Justice Clarke was particularly irked by the final paragraphs of one article which suggested he would respond favourably to the minister’s letter. He said he could only conclude this briefing “came from the Government side as well”.

“I will, of course, consider and respond to any correspondence which I actually receive,” he wrote.

“However, I feel that it is incumbent on me to express, in strong terms, my dismay at the actions of whichever person or persons organised the leak and briefing in question.”

Mr Flanagan has asked the Chief Justice if it is possible for a small number of judges with expertise in personal injuries to participate in a group with a view to revising guideline award levels.

Under the proposal, the group would also include representatives of the Personal Injuries Assessment Board (PIAB) and, possibly, the Department of Justice.

The minister wants the judges to consider recent Court of Appeal rulings and part of a 2018 report by the Personal Injuries Commission, which found awards for minor injuries were almost five times the level of those in Britain.

That report called for “a rebalancing and a recalibration of awards” in line with levels in other countries and recommended that judges compile new guidelines.

It was thought this could be done by setting up a new Judicial Council.

However, Judicial Council legislation has stalled and hasn’t progressed since November 2017, leaving the Government under pressure to come up with an interim measure.

Mr Flanagan’s letter suggested revised guideline awards could be identified “where appropriate”.

The findings could then be published by PIAB, under existing legislation, to supplement or replace guidelines in the Book of Quantum, which guides the level of compensation awarded in respect of a particular injury.

It is unclear if Mr Justice Clarke has responded to the proposal yet.

However, it has been opposed by the Law Society, which warned it may give rise to constitutional problems.

The society, which represents and regulates solicitors, said the failure to progress the legislation “should not result in a knee-jerk reaction which could have unintended and unforeseen negative circumstances”.

It warned of the importance of preserving the separation of powers and said the State could not be impartial in assessing appropriate claims levels when it is a defendant in many compensation cases.

The society is concerned claimants could fall foul of statutory rules on costs if the goalposts are shifted. It also claimed there was no evidence  reducing damages would result in lower premiums.

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