Overly rigid guidelines for judges in personal injury cases are just as likely to "lead to injustice" as to improve things, Chief Justice Frank Clarke has warned.
Speaking at a function on Wednesday to mark the beginning of the new legal year next week, he said he welcomed the findings of the second and final report of the Personal Injuries Commission by Mr Justice Nicholas Kearns.
The key recommendation of the report was that the Judicial Council, when established, compiles guidelines for personal injury damages. Mr Justice Kearns said compensation for personal injury claims in the Republic is among the "most generous in Europe".
Mr Justice Clarke said that “any fair system” needs to pay appropriate attention both to ensuring a “reasonable level of consistency”, but also allow for the flexibility to take into account situations that are different but may outwardly appear similar.
“An overall set of judge-made guidelines would contribute not only to consistency but also to the proper calibration of the overall level of awards,” he said. “But it is important that any system retains the flexibility to enable all relevant factors to be taken into account.
“We all know that the same clinical injury may impact very differently on different persons because of factors such as their lifestyle or the type of work they do. Overly rigid guidelines are as likely to lead to injustice as to improve things.
“I note that there have been suggestions in the recent past that the proposed Judicial Council might be given a role in preparing guidelines in these, and perhaps other, areas. In principle I would see this as a positive development.
“However, the devil is very much in the detail in any such proposals. In that context I am more than happy that there should be discussions about precisely how guidelines proposals of the types suggested might be progressed.”
Mr Justice Clarke, in a wide-ranging speech, also warned of the “significant challenges” of Brexit when the Republic becomes “the leading common law jurisdiction” within the European Union. Common law legal systems place greater emphasis on previous court decisions.
“There is unfortunately a significant risk of unintended consequences if EU laws are made without a real input from the common law countries,” he said. “The UK has, to date, played a significant role in that regard but a particular burden will now fall on Ireland.
“I am convinced that a failure on our part to take up the slack which will be left by the departure of the UK has the potential, by leaving the common law voice largely unheard, to lead to significant complications, and indeed cost, within the Irish legal system.”
Separately, Mr Justice Clarke called for a “litigation impact assessment” to be carried out by the Oireachtas before new laws are introduced.
“I have been concerned that it has not always been the case, when new legislation is under consideration, that the impact which that legislation may have on the courts has been fully assessed,” he said.
“In fairness, it should be acknowledged that in some cases there has been a fairly detailed assessment carried out. But in other cases the consequences for the volume and complexity of litigation have not received adequate assessment.
“I have been seeking that we might put in place some type of at least informal process which would attempt to ensure that there was an adequate litigation impact assessment carried out in conjunction with the legislative process.
“Such a litigation impact assessment would, in my view, be an important tool which would form part of the process of assessing in advance the needs of the courts rather than, as heretofore, often placing the courts in the position of having to play catch-up after the consequences of new legislation have become apparent.”