Personal injury award guidelines and constitutional propriety

 

Sir, – The Kafkaesque manner in which the issue of personal injury guidelines is being addressed is deeply disturbing (Colm Keena, “Senior judges argue against proposed guidelines on personal injury awards”, News, February 17th). It is also of doubtful constitutional propriety.

Unpublished personal injuries guidelines, long promoted by a profitable insurance industry to increase profit and reduce damages paid to those negligently injured, are being privately debated among the judiciary with the object of their being adopted and applied throughout our court system.

The guidelines are secret and have been subject to no public scrutiny or debate. There is in the public domain no comparator published detailing how the guidelines might impact on future awards for catastrophic injury or medical negligence by way of contrast with recent such awards. It is unknown how the guidelines address the consequences of different types of injury and the individual needs of those injured. No one outside the judiciary can currently make any input into the guidelines. It is unknown whether they are to apply to existing claims before the courts or only claims made after they are adopted. It is unknown whether they are to apply only to deliberate and negligent acts that occur after their adoption or also to earlier such acts not yet the subject of court action.

It is unknown the extent to which individual judges will still be able to make discretionary awards that diverge from the guidelines. It is unknown how the appellate courts will treat any such divergence. It is unknown to what extent, if any, members of the judiciary have considered the constitutionality of the provisions in the Judicial Council Act 2019 which provides for the adoption of the guidelines.

It is clear that as the entire judiciary is involved in the process and, should there be a future constitutional challenge to the guidelines, there will be considerable difficulty with any member of the judiciary being immune from a request to recuse himself or herself from hearing such case.

None of this is theoretical. Court awards impact on the real lives of real people and their families. Some are people whose lives have been tragically shortened, such as the casualties of the cervical smear scandal, or whose lives are permanently drastically impaired. The latter are those who suffer permanent physical and/or intellectual disability.

Under our system of the separation of powers the Houses of the Oireachtas legislate and the judiciary adjudicate. There are grey areas. The manner in which judicial discretion is exercised in individual cases and constitutional pronouncements can be seen as law changing. But this is no grey area. This is black and white.

As things are developing, it presents as the Houses of the Oireachtas delegating a legislative function to be exercised in secret by the judiciary, who intend at the end of their secretive process to decree the approach all judges must take in awards of personal injury compensation. At the very minimum in a democracy there should be transparency, public debate and an opportunity for input from outside the judiciary.

In the long term, this will do substantial damage to the judiciary. On the first occasion in the application of the guidelines that a court makes what is perceived to be a miserly award in a case of catastrophic injury or medical negligence, Oireachtas members who advocated for these judicial guidelines will criticise the judiciary, as will various sections of the media and campaigning groups.

We are told the judiciary is meeting to adopt the guidelines this Saturday. A cooling-off period and more time for reflection on where all of this is heading is recommended. It is also recommended that the guidelines as drafted be published for public consultation. It just also may be the case that some members of the Houses of the Oireachtas might consider it in the public interest that there be public hearings on the guidelines held by the Oireachtas Justice Committee. It could be, of course, that both the Government and legislators on all sides are happy to wash their hands of a contentious issue and to put the judiciary in the firing line. – Yours, etc,

ALAN SHATTER,

( Former minister

for justice and equality),

Dublin 16.