Ex-judge sceptical lower injury awards will cut cost of insurance

Mr Justice Peter Kelly says more pressure likely on District Court due to guidelines

Mr Justice Bernard  Barton has expressed scepticism that the benefits of reduced personal injury award levels agreed in the new guidelines will  be passed on to consumers by the insurance industry. Photograph: Getty Images

Mr Justice Bernard Barton has expressed scepticism that the benefits of reduced personal injury award levels agreed in the new guidelines will be passed on to consumers by the insurance industry. Photograph: Getty Images

 

The former president of the High Court, Mr Justice Peter Kelly, has expressed scepticism as to whether reduced personal injury awards will lead to lower insurance premiums.

Asked about the issue, he said that when he was starting out as a barrister in the 1970s, insurance premiums were a “hot topic”, and the insurance industry was saying that if juries were abolished in High Court personal injury cases premiums would come down.

“So juries were abolished, but I didn’t notice my insurance premium coming down,” he said in an interview with The Irish Times.

After that the industry said that if more cases were settled outside court, premiums would come down. The Personal Injuries Assessment Board was established, but again, he said, he did not recall his insurance premium coming down.

“So, one wonders, one wonders.”

Mr Justice Kelly, who retired in June of last year, made the comments while discussing the publication later this month of the second edition of Damages, a key legal reference book covering the range of areas where damages are awarded. It was first published in 2015.

He said that increased pressure on the District Court was likely as a result of the new judicial guidelines on personal injury awards, and that special measures or extra judges might be required as a result.

The recent adoption by the Judicial Council of guidelines on personal injury awards is expected to see more cases being heard in lower courts that heretofore because of rules that direct lower award cases towards lower courts.

The guidelines set out reduced awards, especially for minor and medium-range injuries.

“So I think it will move cases downwards certainly, which will probably give rise to a fairly substantial increase [in cases] in the District Court,” Mr Justice Kelly said.

A lot of litigation has been delayed, in this and other jurisdictions, because of the pandemic, and it is likely “some sort of special arrangements will have to be made” to deal with the increased caseload.

Submissions

The new guidelines were adopted by the council on March 6th last after confidential submissions had been swapped among the judiciary, with some of them arguing against aspects of the proposed new regime.

Minutes of meetings of the council’s board, which have been seen by The Irish Times, also show that not all of its members backed the new guidelines.

The council comprises all of the State’s 168 judges, while its 11-member board comprises Chief Justice Frank Clarke, of the Supreme Court, as well as the presidents of the other four jurisdictional courts – the Court of Appeal, High Court, Circuit Court and District Court – and six other judges.

The “majority board view” was to recommend the adoption of the guidelines to the council, but it was recognised “that there are legitimate differences of opinion”, according to the board minutes from February, which were released under the Freedom of Information Act.

It was also agreed that a document would be issued to the judiciary “representing the majority board view dealing with the submissions received and supporting the adoption of the guidelines”, according to the minutes.

The document that was to be issued as a majority board view was to be based on one produced by the President of the High Court, Ms Justice Mary Irvine, in response to a submission from Mr Justice Bernard Barton, according to the minutes.

At the virtual meeting on March 6th, a majority of council members – 146 of 168 – participated, with 83 voting in favour of the guidelines, and 63 voting against.

At his retirement event three days later Mr Justice Barton expressed scepticism that the benefits of reduced award levels agreed in the new guidelines would be passed on to consumers by the insurance industry.

Building a case

He wondered whether the industry was “building a case” against passing on award reductions, and said judges should not do anything perceived as “bending to the will” of the Executive because that undermined the independence of the judiciary.

The new judicial guidelines are to come into effect from next Saturday, April 24th.

Minister of State with responsibility for insurance Sean Fleming said the insurance companies had indicated they would begin to reduce premiums in response.