New guidelines slashing awards for mainly minor personal injuries are in the public interest, the State will argue in opposing a full-frontal legal attack on the measures.
At least six High Court challenges have now been initiated over the judicially approved guidelines, with more expected next week, in what is high stakes and novel litigation.
A lead case has been selected, the outcome of which has potentially huge implications for the State and the Judicial Council, comprising the country's judges, the Personal Injuries Assessment Board and lawyers, litigants and insurers.
In opposing the lead case, by Co Waterford woman Bridget Delaney, the State rejects claims that the procedure in the Judicial Council Act under which the guidelines were approved by a 83/63 majority of judges last March is unconstitutional.
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Its opposition will also centre on the constitutional rights and duties of the Oireachtas to promote and advance the common good.
It is expected to strongly focus on the public interest in promoting consistency in personal injury awards and in controlling insurance costs.
Other core defences include that the guidelines are not mandatory and that judges retain discretion to depart from them, once they give clear reasons for doing so.
The State will rely on several affidavits, including one from a retired UK supreme court judge and former master of the rolls, Lord John Dyson.
Affidavits have also been provided by senior officials from the Department of Justice and by Maurice Priestley, director of operations with the Personal Injuries Assessment Board (PIAB).
The respondents want the lead case heard as soon as possible but Ms Delaney’s lawyers told the High Court this week it will take time to prepare, for reasons including that the respondents have provided material extending to 4,000 pages. That material is believed to include personal injury award guidelines from other jurisdictions.
Ms Delaney, of Knockateemore, Dungarvan, claims she fractured her ankle after she tripped and fell at a public footpath at Pinewood Estate, Dungarvan, on April 12th, 2019. She claims she required medical treatment, physiotherapy and was in a walker boot for four weeks as a result of alleged negligence of Waterford City Council.
She disputes PIAB’s assessment of her injury as meriting a €3,000 general damages award under the new guidelines and says her claim should have been assessed at between €18,000-€34,000 under the Book of Quantum, which the guidelines replaced.
This week, the High Court was told the State and PIAB want an urgent hearing of a lead case because the challenges are leading to difficulties concerning how claims are dealt with by PIAB and the courts.
The court was told Ms Delaney’s lawyers need time to consider all the State’s documents and they want her case, and any contested pre-trial motion in it, heard by a High Court judge who did not vote on the guidelines. A small number of newly appointed judges were not involved in the vote.
The core issues in the challenges will be decided in the lead case but Mr Justice Charles Meenan has not ruled out another case being heard at the same time. He made directions with a view to getting the case heard as soon as possible and will review the situation when the cases, and various pre-trial matters, return before him on January 19th, 2022.
The applicants’ core claims include that the requirement in the 2019 Judicial Council Act for the judiciary to vote on the guidelines amounts to judge-made law in breach of the separation of powers. Other claims include that the adoption of the guidelines breached the applicants’ constitutional rights, including their property rights and rights of access to the courts, and that PIAB delayed some assessments to await the guidelines coming into effect.
