The Personal Injuries Board could stand constitutional challenge, writes David Gwynn Morgan.
Without exactly saying that it is unconstitutional, spokespeople for the legal professions have sought to cast a pall of constitutional gloom over the new Personal Injuries Board.
Put briefly, the new board, which will start with employers' liability claims and soon embrace motor accidents and public liability claims, will consider only quantum, that is the amount of damages.
Thus it will operate in cases in which the defendant does not dispute that he or she was responsible for the accident.
If the parties do not accept the figure fixed by the board, they may reject the award and take their case to the court system.
There is, of course, a fundamental principle that anyone has the right to go to court to litigate a legal dispute, and the argument against the board is that it violates this principle.
But a moment's reflection shows that this claim is wrong. There are all kinds of different conditions which may, depending on the circumstances, have to be satisfied before one can go to court. In the case of a divorce, for example, the parties have to attend a marriage guidance counsellor before securing access to the court.
In the present case, all that is required is that the board be allowed to reach an assessment as to the value of the claimant's injuries. The claimant is perfectly free to ignore this assessment and bring his case to court where the board's figure has no effect. Thus the board is simply an additional mechanism in the ordinary process of pre-trial negotiation which at present can and usually does lead to a pre-trial settlement.
What difference will the board make then? The answer is that it gives the claimant an impartial assessment of what his claim is worth and so makes an out-of-court settlement more likely.
Indeed there is, similarly, a growing number of crimes for which the offender is given a choice between taking an on-the-spot sanction or going to court and, if convicted, being subjected to a higher sanction.
"Penalty points" for speeding are among recent examples. In this situation, the argument is sometimes made that the offender is deprived of the opportunity to have the prosecution heard by a court. But really what is happening is that the offender is allowed his right to be tried for the offence before a court, but is given an incentive to choose to renounce on this right.
There is good reason why sagacious legal spokespeople have stopped short of saying that the board is unconstitutional. This is that we have a relevant 2003 precedent, the DB case. Here legislation allowed the claimant to choose between a court and the hepatitis compensation tribunal, though with an appeal to a court.
In DB the claimant's appeal was late, and the Supreme Court held that he was, therefore, shut out from going to court, and there was nothing unconstitutional about this.
The relevance of this case here is it shows that at any rate certain types of obstacle may be placed on the right to go to court. Moreover, what the board does is qualitatively different from the situation in DB. First, only quantum and not liability is at stake; and, second, if the claimant disapproves of the board's offer, he or she can go to court with no additional time restriction.
One of the big points made by the chairman of the Bar Council against the board is that it has the effect of "forcing the claimant to lay all his cards on the table."
But the "ambush" theory of litigation is nowhere required by the Constitution. The Constitution notwithstanding, focusing on fair policy, why should the claimant - who in the nature of things knows more of the truth about his own health and capacity than the insurer - not be required to disclose some of it in advance?
The only basis on which one would reject this view would be if the plaintiff in a civil injuries case is thought of as deserving to be in the same sort of privileged position as an accused at a criminal trial.
Built into the way the board is to do its business are three subsidiary advantages compared to a court. In the first place, there will be a Book of Quantum giving guidelines as to damages for different types of injury. This is vital since it is not possible to work out from the light of pure reason the value of the loss of, say, an eye.
Without guidelines, it is hard to see how consistency and, therefore, fairness can be obtained.
The surprising feature is that such guidelines have not been provided for the courts. Such norms have been created in Northern Ireland and Britain by the Judicial Studies Institutes (in effect, the judges in conclave).
Here we have a Judicial Studies Institute but no guidelines. I wonder why. The courts do what they can with the few precedents available, but these are by no means comprehensive and a Book of Quantum would be very useful.
The second blindingly simple improvement concerns the position of the medical witness. The traditional common law approach is to treat the doctors on each side as if they were ordinary witnesses as to fact, leaving the judge to decide between them if they differ, as they often do.
As George Bernard Shaw said in a different context, "they are two honest men paid to call each other liars in the hope that the truth may emerge". But this means that a lay person - the judge - is left to decide on a point, often a difficult point, about the medical progress of the patient. Hogwash.
By contrast, the way the board is to go above resolving this difficulty is what any sensible lay person would have expected.
The basis of the board's decision will be the medical report from the plaintiff's own doctor. But a member of the independent medical panel established by the board, will, where necessary, examine the plaintiff. This possibility, it is hoped, will soften the plaintiff's doctor's cough if he might otherwise have been prone to exaggerate.
Finally, it is a ground of criticism that the board will be able to demand information about a plaintiff's income from the Revenue Commissioners - not allowed in a court case. But surely it is a strange criticism which asserts that a person claiming damages for loss of income should be allowed to pull the wool over the board's eyes as to what his real income is.
If any of these three changes are seen to work before the board, it may be that they will spread to the courts.
The protests from the legal professions against the board recall that pretty well every major reform of the law and legal system - starting with the establishment of the County (now Circuit) Court in the 1840s to the introduction of solicitors as High Court Judges in 2002 - has been opposed by the Bar.
David Gwynn Morgan is Professor of Law at UCC.