A meeting of judges to consider proposed new guidelines to reduce general damages awards for many personal injuries is expected to be delayed until next month.
The meeting, which sources had anticipated could be “stormy”, was due to resume on Saturday having been adjourned from February 5th after some judges said they had had insufficient time to consider the guidelines.
After judges were evenly divided on February over whether to adjourn the meeting or proceed to vote on the guidelines, Chief Justice Frank Clarke used his casting vote to adjourn the meeting to February 20th.
Senior legal sources say the board of the Judicial Council decided, following a meeting on Wednesday night, to seek to further adjourn the meeting to March 6th.
The adjournment is being sought to facilitate consideration by the Council’s personal injuries guidelines committee of submissions received from a number of judges about the proposed guidelines and for the committee to prepare a response to those.
Meanwhile, judges whose have family members involved in personal injury cases should not cast a vote on whether awards should be cut, according to a group that represents small and medium-sized businesses.
The chief executive of Isme, Neil McDonnell, has said the Chief Justice must ask all judges with a “connected party” relationship to withdraw from the remote meeting of the Council which is to consider the draft report.
Mr McDonnell told The Irish Times that while judges were not subject to the Ethics in Public Office Act, those judges who had “connected party” relationships with others involved in the area of personal injury litigation should recuse themselves from the meeting.
He said he intends writing to the Minister for Justice Helen McEntee about the matter, and to draw attention to the website of the Association of Judges of Ireland, where it is stated that judges must do everything they can to be perceived as impartial.
The website says that, in general, a judge should recuse himself from any case where he has a personal connection, such as one involving relatives or friends, or a member of the judge’s former law firm.
Misgivings
Mr McDonnell was responding to a report in The Irish Times that a number of senior judges have circulated memos to their colleagues in which they have expressed misgivings about the draft report that is being considered by the council.
The unpublished report was given to the State’s judges on February 1st, for consideration at a remote meeting on February 5th. That meeting agreed to put consideration of the report back to next Saturday. The judges have been asked to keep the content of the report confidential.
The council is comprised of all of the State’s more than 160 judges and if the report on personal injury awards is adopted, it is expected to lead to a significant reduction in certain types of personal injury compensation.
However, some senior judges have circulated memos to their colleagues raising questions about the legal basis for the council conducting such an exercise, and expressing the view that the reductions that are being proposed go too far, and would lead to an unfairness in certain categories of injury.
Campaigning
Isme and other business groups have been campaigning for a reduction in the level of compensation being awarded for certain types of injury, as part of a broader campaign for a reduction in insurance premiums.
Solicitor Alan Shatter, a former minister for justice, in a letter to The Irish Times on Thursday, said the proposed new guidelines being discussed by the judiciary are "secret", have been subjected to no public scrutiny or debate, and are being addressed in a "Kafkaesque" manner of doubtful constitutional propriety.
“None of this is theoretical,” he said. “Court awards impact on the real lives of real people and their families.”
As things are developing, the Houses of the Oireachtas may be delegating a legislative function “to be exercised in secret by the judiciary, who intend at the end of their secretive process to decree the approach all judges must take in awards of personal injury compensation”.
There is believed to be opposition from some judges to the proposed guidelines, including from some of the High Court and Circuit Court judges who deal with personal injuries cases.
Concerns have also been raised about what some judges consider as the implications of “judge-made” law, including for judicial independence.
A judge of the Court of Appeal, whose members have substantially cut some personal injury awards in a series of judgments, has also circulated concerns about the guidelines.
Some judges have complained about the process which lead to the drafting of the guidelines, saying it did not allow for engagement with stakeholders and affected parties.
The guidelines propose that awards for many personal injuries, particularly minor injuries, be reduced to a level between awards in Northern Ireland and awards in England and Wales.
Data obtained by the committee suggested that Irish whiplash awards are 1.2 to 1.3 times higher than in Northern Ireland, and 1.9 to 2.3 times higher than their English and Welsh equivalents.
The guidelines also propose a modest increase in awards for the catastrophically injured.
The proposed award reductions would be achieved by significantly cutting back on the scope for judicial discretion when making awards by setting tighter limits on awards for specific injuries.
The tighter limits would mean more predictable outcomes to cases, leading to more and earlier settlements and cutting back on legal costs. They would be likely to discourage plaintiffs from bringing cases to the High Court, where significantly higher legal costs apply.
If adopted, the guidelines will take effect from late July once section 99 of the 2019 Judicial Council Act is commenced by the Minister for Justice and they will apply to court settlements and cases before the Personal Injuries Assessment Board.
