Sunday 18 August 2019

Shane Phelan: 'Government took its eye off ball rather than pressing ahead with injury award reform'

Justice Minister Charlie Flanagan
Justice Minister Charlie Flanagan

Shane Phelan

Given the clamour in recent years for meaningful insurance cost reform, the Government's tardiness in pressing forward with the Judicial Council Bill is baffling.

Last July, the Personal Injuries Commission (PIC) identified the introduction of a judicial council as a crucial measure. Judges have been seeking one for many years for all sorts of reasons, including their desire for a body to establish best practice for their education, support and training.

But the PIC identified another use for the council, saying it could compile guidelines for appropriate general damages for various types of personal injury.

The commission, headed by former High Court President Nicholas Kearns, found that awards for less serious injuries such as whiplash were significantly out of step with other jurisdictions. Under its proposals, the commission said Irish society was being presented with an important opportunity to consider an appropriate rebalancing and recalibration of awards.

"This is an opportunity to improve the situation for consumers, business owners and society without disproportionately restricting recourse to compensation for genuine and seriously injured claimants," he said in the report.

However, rather than prioritising the Judicial Council Bill, which had been slumbering since November 2017, the Government took its eye off the ball. First there was a headline-grabbing proposal last November by Junior Minister Michael D'Arcy for a referendum to override judicial discretion in the awarding of compensation claims.

The proposal was misguided for a number of reasons, not least because it was hopelessly premature when the PIC recommendations had yet to be implemented.

Then in February, Justice Minister Charlie Flanagan suggested that, as an interim measure, judges join in a group with Department of Justice and PIAB officials to identify revised guideline awards "where appropriate".

The proposal was shot down by Chief Justice Frank Clarke for a range of legal reasons, outlined in a letter obtained by the Irish Independent.

This left the minister boxed in a corner and it appears that it is only since the Chief Justice's letter that any serious urgency has been demonstrated in progressing the bill.

The proposed legislation was reawakened last month when it completed committee stage in the Seanad. The Department of Justice now says it hopes the bill can be enacted before the summer recess.

This means a council could be set up by the end of the year. In truth, it can't come soon enough.

Mr Justice Clarke may have had misgiving about the interim solution put forward by the minister, but he is on record as saying the PIC report has to be taken seriously.

He has previously told the Irish Independent that if damages for "small to medium" injuries were higher here than in other countries, this had consequences for competitiveness and jobs.

"I don't think we necessarily have to have a race to the bottom and have the same level of damages as the country with the least, but I think we need to be in the ball park," he said.

Irish Independent

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