Wednesday 12 December 2018

Dearbhail McDonald: 'We must keep insurance awards in check - but not at cost to genuine victims'

Riposte: Supreme Court judges including Mr Justice Adrian Hardiman (fourth from left), who issued a stunning response when Michael McDowell took aim at the judiciary in 2012. Photo: Courtpix
Riposte: Supreme Court judges including Mr Justice Adrian Hardiman (fourth from left), who issued a stunning response when Michael McDowell took aim at the judiciary in 2012. Photo: Courtpix
Dearbhail McDonald

Dearbhail McDonald

Brave is the government minister who takes aim at judicial independence, even if it's a well-intended aim.

Former Tánaiste and justice minister Michael McDowell learned this the hard way when he became embroiled in a high-profile tangle with his legal brethren 12 years ago.

Then, at the height of a 'gangland' killing spree, Mr McDowell, a senior counsel, took aim at the judiciary over a purported failure to impose mandatory minimum terms for drug sentencing.

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A herd of populist politicians quickly followed suit in the melee which included an accusation by Mr McDowell that judges were "soft" on sentencing.

The onslaught was met with a stunning riposte by the late Supreme Court Judge Mr Justice Adrian Hardiman, who inconveniently pointed out that the DPP had not sought a review of any sentence longer than six years - the mandatory minimum was 10.

Poacher turned gamekeeper Alan Shatter, a solicitor who rose to the ranks of justice minister, went further when he led a charge to recalibrate the separation of powers between the judicial and executive branches with the naked power grab that was the Oireachtas Inquiries referendum seven years ago.

The electorate defeated that referendum amid fears that they would not be able to seek access to the courts if their rights, as citizens, were trampled on by grandstanding politicians in Oireachtas committees.

Sound familiar?

What has all of this got to do with your car insurance?

Lots, actually. That is because in the latest, and not entirely unfounded, moral panic - a panic as cyclical as the collapse of an insurance company - Minister of State Michael D'Arcy is wielding a sword of Damocles in the form of a referendum to curb judicial independence unless judges reduce whiplash awards.

Incidentally, our awards for serious injuries are below international norms. Indeed, it is the failure to address multi-billion-euro catastrophic injuries claims where the State has really failed its citizens.

It goes without saying that soft injuries/whiplash awards, coming in at around €20,000 per claim, are an offence to the public interest and have to be reduced in line with international benchmarks. And it is patently obvious, exceptional circumstances aside, that meaningful adherence by judges to monetary guidelines is key to reducing both the level of awards and related costs.

This is not least because the Personal Injuries Assessment Board, the statutory body set up to settle claims during the last moral panic, follows the awards set down by the judiciary in its Book of Quantum, even though the vast bulk of plaintiffs and insurance companies bypass the agency and the courts by settling claims privately.

If only the late attorney general Rory Brady were alive to see his oft-cited 2001 prediction that the PIAB was "a fatally flawed project" that would not result in reduced insurance premiums - but that's another day's column.

Back to Mr D'Arcy and his carrot-and-stick message to judges: reduce awards or the Oireachtas will do it for you.

Leaving aside the constitutionally iffy question of whether politicians can cap some or all categories of personal injuries awards made by the courts - the Law Reform Commission is looking at whether constitutionally sound legislation to effect this is possible - is a referendum desirable or necessary?

The call comes at a time when, one or two superior court rulings aside, the Circuit Court is on a roll throwing out suspect claims.

An imminent legislative diktat that judges 'shall' (mandatory) as opposed to 'may' (discretionary) adhere to general awards should help move the proverbial dial. The introduction of guidelines for judges handling personal injuries cases in the UK has been key to controlling awards there. But our judiciary cannot devise those guidelines until the setting-up of a Judicial Council - the 'imminent' legislation that has been hanging around for about 20 years now.

There is no doubt judges have a key role to play.

But we should be slow to fall into the wolf-in-sheep's-clothing embrace of the insurance industry in Ireland, an opaque sector that is under investigation by the European Commission for alleged anti-competitive practices.

The house that always wins (we pay permanent levies for their interminable collapses), the insurance industry has cried foul about fraudulent and exaggerated claims.

Yet the industry has filed a paltry (couple of hundred) complaints with gardaí despite legislation, introduced in 2011, obliging them to report any and all suspicions to gardaí.

Always on hand to blame anything but insurance companies for soaring premiums, the industry has, in recent years, pulled off an extraordinary feat by creating a presumption that every person who makes an insurance claim is a fraudster of one kind or another, to the detriment - in my view - of genuine accident victims.

It is vital that we keep whiplash and other insurance awards in check, if only because we all pay the price through increased insurance premiums.

But we should be slow to entertain another divisive referendum.

Judges may not be popular, but citizens need the vital backstop of an independent judiciary when all else fails.

Irish Independent

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