In a decision with implications for the manner in which the newly established Personal Injuries Assessment Board operates, the High Court has upheld a challenge to the policy of the board to deal directly with clients rather than through solicitors.
The court noted that the board's policy has no effect on legal costs as any costs incurred by a claimant would have to be deducted from any award by the board to a claimant.
The board had no power to award legal costs or expenses.
The PIAB was set up last year with a view to reducing the costs of personal injuries court actions.
In his reserved judgment yesterday allowing the challenge by a meat factory worker to the board's policy, Mr Justice McMenamin said the right to legal representation and the lawyer/client relationship existed in the common good.
Most significantly, they helped to guarantee "equality of arms" in litigation and types of adversarial processes and the maintenance of fairness between the strong and the weak.
The challenge was brought by Mr Declan O'Brien, of Summer Road, Tullamore, Co Offaly, who has a claim arising from injuries which he allegedly suffered in an accident at his place of work in November 2001.
The Law Society, which represents solicitors, made submissions during the hearing of the proceedings last month and strongly opposed the PIAB's policy.
Lawyers for Mr O'Brien claimed that his right to be represented by a solicitor was breached by PIAB's actions in seeking to deal directly with him rather than conduct dealings through his authorised solicitor, Mr Denis Boland, of Newbridge, Co Kildare.
The issue of the PIAB's entitlement to disregard the written authorisation of a client directing the board to communicate solely with their solicitor went to the heart of the solicitor-client relationship and the ability of a solicitor to represent a client, it was argued.
The board was established in April 2004 under the Personal Injuries Assessment Board Act. The legislation provides that a potential claimant is prohibited from initiating civil proceedings for damages for injuries without having first made application to the board.
Last September Mr O'Brien initiated judicial review proceedings against the PIAB, seeking a number of reliefs, including an injunction directing it to cease interference in the relationship between him and his solicitor.
In his 55-page judgment, Mr Justice McMenamin found against the PIAB, but adjourned making a formal order in the case for a week to give time to lawyers to consider his decision.
The judge said he was not making any finding in relation to the constitutionality or otherwise of the provisions of the Act. Rather he was addressing the question as to whether the policy or practice of the board was ultra vires (outside the powers) of the Act.
In that regard, he had to address two simple questions. The first was whether there was a specific power in the Act to adopt the policy at issue. He considered there was not.
The second question was whether the policy was necessary, expedient or incidental so as to bring it within the ambit of Section 54 of the Act. He said the board had not succeeded in demonstrating how its interference with the lawyer-client relationship was necessary, expedient or incidental to its functions.
Mr Justice McMenamin said that, in view of the statutory provisions in the Act regarding costs and expenses, the question of legal costs was not affected one way or the other by the policy adopted by the board.
It was not empowered to award legal costs and expenses. Any legal costs incurred by a claimant, therefore, could only be deducted from an award made by the board to a claimant.
The judge said that, because of his conclusion on the vires issue, not all the issues raised required to be resolved for the purpose of the present proceedings, but he would make some further comments.
In his view, there was implicit in the case the fundamental issue of the right to retain legal representation in the context of various contentious matters. This right had been recognised, not only in court proceedings but in a range of other fora, from quasi-judicial hearings to statutory bodies, even of a strictly administrative type, where the matters in issue were of serious import.
The right to legal representation had application in administrative procedures when the matters in issue were of serious consequence to the parties or impinged upon their rights.
Assessment by a statutory body for compensation in respect of personal injury came within that category.
Indeed, it was of such importance that, prior to and even after the inception of the board, such right may be determined by a court of law.
Compensation for personal injuries might involve substantial sums, and the question of entitlement might be of vital significance to a claimant and their family. In such circumstances, a contention that the issues before the board were inconsequential was surely difficult to sustain.