Declan O'Brien (applicant) v The Personal Injuries Assessment Board (respondent), Ireland and the Attorney General (notice parties), The Law Society (amicus curiae).
Judicial Review - Operation of Personal Injuries Assessment Board - Whether PIAB justified in declining to accept or act upon an authorisation permitting solicitor to act on behalf of client - Whether such refusal ultra vires - Personal Injuries Assessment Board Act, 2003 s.7.
The High Court (before Mr Justice Mc Menamin): judgment delivered January 25th , 2005.
In declining to accept an authorisation by corresponding directly with the applicant, the board was acting in breach of section 7 of the Act, and without authority of any other provision of the act. Such impugned conduct was unwarranted.
The High Court so held in granting the applicant declaratory relief sought on the basis that the board was acting ultra vires the Act.
Counsel: Harry Whelehan, SC, Paul Gardiner SC with Dan Boland, BL for the applicant; Eoghan Fitzsimons SC, Denis McDonald SC with David Barniville BL for the respondents; Nicholas Butler SC with Paul Anthony McDermott BL for the notice parties; Dermot Gleeson, SC, Gerard Hogan, SC with Declan McGrath, BL for the amicus curiae.
Mr Justice McMenamin began his judgment by outlining the background to the case. The applicant, a boner in a meat factory, alleges that on November 5th, 2001, an overhead line which was carrying carcasses of meat collapsed, as a result of which he was struck on the back and sustained injuries.
He was off work for approximately four months. On returning to work, he became aware that he was able to produce only about 75 per cent of his previous output. His earnings suffered proportionately. He asserts he has not been able to return to his previous level of productivity.
He is apprehensive that he will not be able to do so. He claims that he suffers pain and aches at the end of a day's work.
On August 12th, 2004, the applicant visited his solicitor, Mr Denis Boland, of P.V. Boland & Co., Co. Kildare, and outlined to his solicitor the circumstances of the accident. Mr Boland advised that because of the coming into operation of the Personal Injuries Assessment Board Act 2003 (hereinafter "the Act"), his claim would have to be initiated by making an application to the Personal Injuries Assessment Board (hereinafter "the board"), as the Act provides that a potential claimant is prohibited from initiating civil proceedings in pursuit of damages for injuries without having first made application to the board.
Mr Justice McMenamin detailed Mr Boland's concern regarding the Statute of Limitations. The three-year time limitation would have run its course in approximately 11 weeks from the date on which Mr Boland first met his client. Mr Boland in his affidavit stated that on August 16th, 2004, he telephoned and had a conversation with a Ms Jo Crowley who works in a call centre, run by a company which acts as an agent to which the board outsources the business of processing claims. Mr Boland states that in the course of his conversation he gave Ms Crowley particulars of the claim, and indicated that he would be sending an authority to the board on behalf of his client, requiring the board to deal directly with him as the applicant's solicitor.
Within three hours of the conversation Ms Crowley had contacted the applicant personally on his mobile telephone. By the end of this conversation the applicant formed the view that he was being told by Ms Crowley that he did not really need the services of a solicitor, and that all that he needed to do was to send in a medical report to the board. Mr Justice McMenamin stated that he was satisfied that this view was erroneous. Mr Boland then completed the application form, which he had obtained from the board, and also furnished to the board a document entitled "Confirmation and Authority", signed by his client, whereby he was appointed solely to conduct business on behalf of his client.
Mr Justice McMenamin said that on August 19th, 2004, the board wrote directly to the applicant which was at variance from the authority which had been furnished to the board by Mr Boland. On August 24th, 2004, Mr Boland replied to the board complaining of the fact that it had not recognised the authority he had furnished to it.
On August 26th, 2004, Mr Boland received a telephone call from an official of the board, indicating that it would not deal directly with solicitors, but that the board would furnish copy correspondence to Mr Boland. Correspondence took place from that date until the middle of September, at which time the issue of the registration of the applicant's claim was unresolved, due to the absence of a medical report.
A series of telephone calls took place in September. From these it emerged that the board would register the claim if by chance the solicitor had not obtained a medical report for his client by October 31st, 2004.
Mr Justice McMenamin stated that on September 7th, 2004, the applicant initiated judicial review proceedings, seeking an order of mandamus directing the respondent formally to record and register the applicant's claim in order to stop the Statute of Limitations from running; a similar order directing the respondent to register the applicant's claim having already recorded it on August 19th ; an injunction directing the respondent to stop and cease the interference in the client/solicitor relationship between the applicant and his solicitor; and a further order directing the respondent to abide by the irrevocable authority signed by the applicant on August 16th, 2004, in relation to his claim. The grounds upon which the relief was sought at that stage were: (a) that the board had acted unreasonably, (b) that the exercise of the discretion vested in the board's officers in relation to the making of an assessment of the applicant's claim and the subsequent failure to register that claim had been exercised unreasonably, (c) that the conduct of the officers in the handling of the claim had been such as to interfere with the applicant's solicitor/client relationship and thereby to fetter the applicant's access to proper legal advice and the proper administration of justice, and (d) that in its manner of processing the applicant's claim the board was acting ultra vires and contrary to the rules of natural and/or constitutional justice.
On September 17th the board wrote to the applicant's solicitor, appreciating his concern regarding the Statute of Limitations, assuring him that the board's procedures and policies had been developed in order to protect any claimant who found themselves in a similar position, and proposing that the board would register the claim even if Mr Boland were unable to secure a medical report in time. There was some concern among the applicant's legal team that this letter did not constitute an undertaking given by one solicitor to another.
Mr Justice McMenamin said that on October 28th, the matter came before Quirke J. at which time the applicants wished to amend the relief being sought to challenge as unconstitutional or in breach of the European Convention on Human Rights any inflexible policy of dealing directly with clients notwithstanding authority, if such was asserted by the board.
Prior to the hearing of these proceedings on December 14th, an application was made to the President of the High Court on December 1st, on foot of which the Law Society of Ireland was permitted to appear in the proceedings as amicus curiae.
Mr Justice McMenamin outlined an "issue paper" agreed between counsel for both sides and which identified the issues which fell for determination by the court as follows:- whether the respondent, in declining to accept or act upon the authorisation dated August 16th, and by corresponding directly with the applicant (in copying such correspondence to his solicitor), was acting in breach of: (a) section 7 of the Personal Injuries Assessment Board Act 2003; (b) the applicant's constitutional rights; (c) Article 6.1 of the European Convention on Human Rights; and (d) s.3 of the European Convention on Human Rights Act 2003. During the course of argument, counsel for the applicant clarified that issues (c) and (d) were no longer being pursued.
Mr Justice McMenamin stated that on foot of the determination of issues (a) and (b) above, the applicant sought an order directing the respondent to abide by the irrevocable authority signed on August 16th; and if necessary, a declaration that the board in failing to communicate with the applicant's duly appointed solicitor had acted in a manner at variance from, and contrary to, the applicant's constitutional rights and/or the provisions of section 7 of the 2003 Act.
It was made clear that, for the purposes of these proceedings, the applicant was not impugning the constitutionality of the Act, nor was any declaration being sought that any provisions of the Act were incompatible with the European Convention on Human Rights.
Mr Justice McMenamin set out the background to the Act and the board, and in particular outlined the content of section 7 (legal advice), s.11 (making an application for assessment), section 29 (board to advise certain parties to seek advice), section 44 (expenses incurred by claimant), section 46 (the making of rules by the board), section 54 (functions of the board) and section 79 (service of notices).
He detailed the practice of the board with regard to solicitors acting for claimants, as set out by counsel for the board.
Mr Justice McMenamin proceeded to address the issues and submissions made by counsel for the parties. A preliminary question was that of locus standi.
It was submitted that the matters in issue before the board were ones of substance relating to the applicant's cause of action in tort and connected (albeit indirectly) with his constitutional right of access to the courts.
Against that background, the board had chosen to prescribe both the form of authority and the manner in which it would communicate with claimants and/or their lawyers. Such procedures had identifiable consequences for the applicant, in that they undoubtedly impinged on the solicitor/client relationship and restricted the applicant's ability to delegate matters to his solicitor. On this point, Mr Justice McMenamin said that clearly those factors taken together provided ample basis for finding that the applicant had locus standi.
Mr Justice McMenamin stated that the primary question arising was that of vires. He referred to a number of cases cited in argument wherein the constitutional right to legal representation was raised and which were submitted as of some assistance in determining the issues before the court, albeit that those cases appertained to adjudicative inquiries and the right to good name guaranteed under the Constitution. Mr Justice McMenamin said that in Maguire v. Ardagh 1 IR 385 an attempt was made by a parliamentary committee to limit the manner in which legal advisors would be allowed to proceed.
While it was not necessarily the case that the committee intended to operate its proposed rules as to cross-examination in an absolutely rigid fashion, nevertheless there were several elements of those rules which the Supreme Court found objectionable, in so far as they would or could unnecessarily hamper the right of one witness to cross-examine another. Particular aspects of the rules which raised concern were the postponement of cross-examination until the conclusion of the evidence of all the witnesses, and the time-frame from within which it was envisaged the cross-examination could take place (which was so limited that for practical purposes the right was greatly diluted).
A similar issue arose in Re Commission to Inquire into Child Abuse 3 IR 459, a decision of Kelly J. There, the Commission had sought to impose a restriction upon the number of lawyers who might act by being present during a particularly important part of a case. The applicant argued in that case that the direction in suit was solely concerned with the issue of representation at the evidentiary hearings and was not concerned with the number of counsel retained generally on the team. Kelly J. stated at p.476 that such a ruling nonetheless constituted "interference with the extent to which the team selected by the client and the solicitor advising as to the composition of that team is permitted to act on behalf of the client".
He stated: "The ruling bites, in practical terms, at the point which is the most crucial in the whole investigation process being carried out by the applicant, namely where accuser and accused face each other and where testimony is contested by cross-examination. The ruling in effect supplants the views of the client, as informed by the opinions tendered to the client by the solicitor and counsel retained, as to how best to defend the case."
He explained: ". . . that, if the applicant could ever be authorised to make a ruling of the type which it did (and I am not to be taken as saying that it could) it would require clear and express statutory authority so to do . . . no such authority exists in the present case."
In that case Kelly J went on to state: "The only other statutory basis that could be relied upon arises from section 4(6) and the obligation imposed on the applicant to enable the evidence in question to be given in an atmosphere that is as sympathetic to, and as understanding of complainants as is compatible with the rights of others, and the requirements of justice.
"I do not think that this can be relied upon as a basis for justifying the direction in suit. None of the parties to this litigation were in a position to point to any other case, either in this jurisdiction or in the common law world, where a restriction of the type in suit was sought to be imposed.
"It seems to me that if the applicant were to be given such an unusual and far-reaching power of this kind, express legislative authority would be required and could not be implied even from what is contained in s.4(6)."
Mr Justice McMenamin stated that there clearly were distinguishing features between the cases cited above and the case in issue. The most fundamental of these distinctions was that the former cases concern adjudicative inquiries (to use a phrase coined by Hardiman J. in Maguire) and the right to a good name. However, Mr Justice McMenamin. said that it seemed to him that there were similarities which justified the adoption of a similar approach in principle and by analogy.
The above-cited cases clearly emphasised the importance of legal representation even outside the sphere of the administration of justice proper, and the need for parties to be free to decide, prudently and reasonably, on the nature and extent of their legal representation.
Mr Justice McMenamin then turned to the issue of vires, while applying the presumption of constitutionality to the Act and also bearing in mind the court's obligations under section 2 of the European Convention on Human Rights Act 2003. He stated that the vires issue comes down to two simple questions. The first was whether there is a specific power set out in the Act to adopt the policy at issue, and Mr Justice McMenamin considered that there is not. The second question is whether the policy is necessary, expedient or incidental so as to bring it within the ambit of s.54 of the Act, or any other section. Counsel for the applicant submitted that this question reduces itself to two sub-questions, how is it expedient and what object has it achieved?
Mr Justice McMenamin detailed a submission for the respondent, in an attempt to explain the reasoning behind its practice, that it (the board) deals with what are referred to as "easy claims". It was not being suggested, however, that the board finds it easier to deal with claimants than solicitors, nor that claimants put forward their claim more succinctly than their solicitors, nor that claimants have a better understanding than their solicitors of how to frame a claim, put together a loss of earnings claim, obtain a medical report or identify wrongdoers.Counsel for the respondent also submitted that the policy (of the board) saves costs for all involved, because solicitors acting for applicants will not be able to charge clients on the same basis as they would recover costs involved on a "party and party" basis and that it is a policy or practice contemplated by the Act, even if it is not actually recited in the Act.
Mr Justice McMenamin stated that in view of the statutory provisions contained 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. The board is not empowered to award legal costs and expenses.
Any legal costs incurred by a claimant, therefore, can only be deducted from the payment made by the board to the claimant.
Mr Justice McMenamin stated that were it the intention that lawyers should be excluded from dealings between claimant and the board the Act might have said so. Such a provision might have been contained in section 7 of the Act. No such provision, however, can be found there, or in any other section or subsection of the Act itself. Instead, it is a practice which has been initiated by the board itself. In such circumstances it is for the board to demonstrate how the approach comes within the Act. It is insufficient for the board simply to assert, without more, that such a policy was "expedient".
The board has not succeeded in demonstrating how its interference with the lawyer/client relationship is necessary, expedient or incidental to its functions.
Mr Justice McMenamin said that in reaching that conclusion, he had had regard to several significant features of the current case, including (a) the fact that the matters in issue before the board are truly ones of substance, relating to the applicant's property right in his cause of action in tort. They are connected (albeit indirectly) with his constitutional right of access to the courts; (b) the arrogation by the board to itself of the power to prescribe firstly the form of authority, and secondly the manner in which communication shall take place between itself and claimants and/or their solicitors; (c) the absence of an express authority permitting of the adoption of such an approach; (d) the specific recognition within the terms of the Act of the rights to legal advice which highlights the potentially serious legal consequences of the entire procedure for a claimant and (e) the gravity of the consequences of the procedures and their significance for the claimant, which is underscored by the fact that in certain circumstances, such as in respect of vulnerable claimants (section 29) and withdrawal of applications (section 47), the issues arising are of such seriousness that the Act recognises the desirability of claimants obtaining legal advice before further steps are taken.
Mr Justice McMenamin then stated that he wished to make some further, albeit obiter, comments. He said that his conclusions as to the ultra vires nature of the practice of the board was of greater concern in light of the interests and/or rights which are at stake. In his view there was also implicit in this case the fundamental issue of the right to retain legal representation in the context of various contentious matters, a right which has 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 are of serious import. The constitutional right to retain legal representation in civil court proceedings is one which is equally (as well as in criminal matters) well recognised as an aspect of fair procedures, access to the courts and the administration of justice under Article 34 of the Constitution. Likewise in the context of fact-finding tribunals; see Re Haughey IR 217.
Mr Justice McMenamin said that the right to legal representation also has application in administrative procedures when the matters in issue are of serious consequence to the parties or impinge upon their rights. Assessment by a statutory body for compensation in respect of personal injury comes within this category. Indeed, it is 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 may involve substantial sums of money, and the question of entitlement thereto may be of vital significance to a claimant and his or her family.
In such circumstances, a contention that the issues before the board are inconsequential is surely difficult to sustain.
Mr Justice McMenamin said that the procedures for pursuing claims before the board were in many ways analogous to the steps necessary prior to the initiation of a claim in court proceedings.
Nine categories of documents were identified which may have to be submitted. Significant judgment is involved in identifying the materiality of such categories of document. Inevitable difficulties arise regarding the obtaining and presentation of such information. The consequences of failure in compliance may be fatal to the claimant's case. It may debar the claimant from pursuing his claim before the courts. The pivotal importance of the proper registration of the claim within the time is self-evident. At a number of points the Act provides for the claimant obtaining legal advice.
Why is this so? Clearly, it is because such steps and such decisions may have serious legal consequences for a claimant.
The consequence of successfully pursuing a claim before the board is therefore by no means insignificant. The claimant may obtain compensation at an early date, and such compensation is achieved without risk of an adverse award of costs.
Mr Justice McMenamin said that even if he accepted that the procedures before the board were administrative in nature, he was satisfied that by reason of their complexity, importance and potential consequences, they are such as to justify, not only access to legal advice, but also, such rights to legal representation as have been identified by the applicant in this case. Such rights would not be rendered irrelevant by the fact that the board does not conduct hearings. The right to legal representation is not confined to court appearances, it inheres in each of the steps which are necessary, ancillary and preliminary to the bringing of court proceedings. Legal representation involves conduct as well as advocacy. It involves the employment of skill and judgment in the obtaining of necessary information and instructions. It necessitates judgment in the utilisation of such information in the pursuance of the client's interests.
Mr Justice McMenamin said that the right to legal representation and the lawyer/client relationship exist in the common good. Most significantly they help to guarantee equality of arms in litigation and various types of adversarial processes and the maintenance of fairness between the strong and the weak.
Mr Justice McMenamin concluded by saying that in declining to accept the authorisation by corresponding directly with the applicant, the board was acting in breach of section 7 of the Act, and without authority of any other provision of the Act. Such impugned conduct was unwarranted, and the applicant was thus entitled to the relief sought in that regard. Having so held, Mc Menamin J. said it was unnecessary to deal with the other issues raised in the issue paper.
Solicitors: Patrick V. Boland & Son (Newbridge) for the applicant; Arthur Cox & Co (Dublin) for the respondent; Chief State Solicitor for the notice party and McCann Fitzgerald (Dublin) for the amicus curiae.
P.J.Breen, barrister