Judge in charge of personal injury litigation in High Court opposed new award guidelines

Mr Justice Kevin Cross spoke against the proposals at key Judicial Council meeting

Mr Justice Kevin Cross spoke against new guidelines for personal injury awards. File photograph: Dara Mac Dónaill/The Irish Times

Mr Justice Kevin Cross spoke against new guidelines for personal injury awards. File photograph: Dara Mac Dónaill/The Irish Times

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The judge who manages personal injury litigation in the High Court argued against the adoption of new guidelines designed to reduce the level of such awards.

Mr Justice Kevin Cross and his High Court colleague Mr Justice Anthony Barr spoke against adopting the guidelines at a remote meeting of the Judicial Council on March 6th last, according to minutes of the confidential meeting.

Mr Justice Donal O’Donnell of the Supreme Court and Mr Justice Michael MacGrath of the High Court spoke in favour of the guidelines. Mr Justice MacGrath is a member of the board of the Judicial Council.

The council comprises the more than 160 judges in the State. In the run-up to its vote on March 6th on the new guideline proposals, confidential documents were circulated amongst the judges arguing for and against the new regime for personal injury awards.

A majority of council members – 146 of 168 – participated in the meeting, with 83 voting in favour of the guidelines and 63 voting against.

Mr Justice Cross has since noted that the new guidelines “do not change the law”. He said judges are still required to assess damages that are “fair and reasonable” in individual cases.

The minutes of the March 6th meeting show that following the addresses by the two judges in favour, and the two judges against the guidelines, “some discussion followed, both in favour [of] and against the proposal”. They do not record the reasons why any judge spoke in favour of or against the new guidelines.

The minutes, released under the Freedom of Information Act, show that the Chief Justice, Frank Clarke, told the meeting he would raise the issue of more judges being required for the District Court if the guidelines had the effect of increasing the volume of business in that court.

One of the expected effects of reducing the awards for lower- and medium-range injuries under the guidelines is that many personal injury cases will be heard in a lower court than has been the case up to now.

Reducing premiums

The Government is hoping that the new guidelines, along with a suite of other measures, will lead to a reduction in the price of insurance premiums, not least for small and medium-sized businesses and civic and cultural organisations that are struggling to pay for public liability cover.

The guidelines now apply to new litigation and to claims before the Personal Injuries Assessment Board that have not yet been assessed.

The Judicial Council has an 11-member board comprising the Chief Justice and the presidents of the Court of Appeal, High Court, Circuit Court and District Court, as well as six other judges.

Minutes of board meetings show that a document arguing in favour of the guidelines, circulated to judges prior to the March 6th vote, was a “majority board view” and not supported by all the members.

The document was 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.

On March 4th, two days before the council vote, the board had discussed what would happen if the draft guidelines were not supported.

“It was agreed that a virtual break-out room be arranged so that if required the board could meet separately and discuss this on March 6th,” the minutes of that meeting show.

It was also agreed at the March 4th meeting that the interim secretary of the council, Kevin O’Neill, would “write to those members who had submitted papers in opposition to the draft guidelines on behalf of the chairperson requesting that two speakers be nominated for a set amount of time to address the meeting”.