The Injuries Board / Costs

Injuries Board

The Personal Injuries Assessment Board Act 2003 and the Civil Liability and Courts Act 2004 made fundamental changes to the procedures for the recovery of compensation in personal-injury cases.  It reformed the law and practice for personal-injury claims and litigation.  The legislation followed sustained criticism of the level of costs and the pre-existing practices.

The Act established a Personal Injuries Assessment Board.  This was renamed the Injuries Board following 2007 legislation.  The Board is a corporate body.  Its principal functions are to

• arrange for the making of assessment of qualifying claims under the Act;
• to prepare and publish a Book of Quantum containing general guidelines of the amounts which may be awarded or assessed in respect of specified types of injury;
• make cost-benefit analysis to be made of legal procedures and associated processes that are  employed for the purpose of awarding compensation for personal injuries;
• to collect and analyse data in relation to awards on foot of or agreed in settlement of civil actions and
• to perform such other functions as may be conferred by the Minister.

The Board

There are  11 members of the Board, to be appointed by the Minister [for Justice].  Each member is to be a person who in the Minister’s opinion has experience in an area, a field of expertise relevant to the Board’s function.

The Minister is to appoint a chairperson and vice-chairperson of the Board. Two members of the Board are nominated by the ICTU, one by the Irish Business and Employers Confederation, one by the Irish Insurance Federation, and one is an employee of the Central Bank nominated by the Governor. The chief executive and a person nominated for such appointment by the chairperson of the Competition and Consumer Protection Commission are also members.

The Minister is to fix periods of membership of up to five years.  Members may be paid remuneration and allowances as the Minister with the consent of the Minister for Finance determines.  The Minister is to endeavour to achieve gender balance on the Board.

The legislation contains relatively standard corporate governance provisions.  The Board is to hold such meetings as are necessary for the purpose of its functions  It may establish committees to perform functions delegated to them and to assist the Board in matters relating to its functions.

The Chief Executive

There is to be a chief executive officer, who is to carry on and manage generally, the administration of the Board and to perform such functions as may be determined by the Board.  The chief executive is appointed by the Board with the consent of the Minister. The chief executive is to hold office under a written contract of service, on terms determined by the Minister with the consent of the Minister for Finance. The chief executive may not hold any other office.

The chief executive shall perform his functions, subject to policies as may be determined by the Board.  He is answerable to the Board for the efficient and effective management of the board and the due performance of his function.  The chief executive may delegate his functions to members of staff with the consent of the Board.  This does not affect his responsibility to the Board.

The chief executive is accountable to the Committee of Public Accounts in respect of its accounting, the economy and efficiency in the use of its resources, the systems, procedures and practices employed by the Board for the purpose of evaluating the effectiveness of its operations, and any matter affecting the Board referred to in a special report of the Comptroller and Auditor General.

The chief executive is accountable to Oireachtas Committees in respect of the general administration of the Board.  He is not required to give an account in respect of matters which is, have been or may afterwards be the subject of court or tribunal proceedings in the State.

Operation of Board I

The Board is to have staff as appointed by Board with the consent of the Minister for Justice and the Minister for Finance.  The grades, numbers of staff in each grade and their remuneration, is determined by the Board with the consent of the Minister for Finance.  The Board may delegate any human resources matters to the chief executive. There is provision for a superannuation scheme.  It is to be approved by the Minister for Justice with the consent of the Minister for Finance.

The Board is to be financed by grants, as may be sanctioned by the Minister out of monies provided by the Oireachtas.  The Board has power to borrow with the consent of the Minister and the Minister for Finance on such conditions as may be specified by them.

The Board must keep accounts in the normal way and submit estimates to the Minister periodically.  The chief executive may submit estimates to the Minister after consulting the Board.  Accounts are to be kept in the normal way.

Every five years, the Board is to prepare and submit to the Minister for approval, a five-year strategic plan.  The strategic plan shall comprise the key objectives, outputs and related strategy including the use of resources by the Board.  It must be prepared in a form and manner in accordance with directions issued by the Minister. It is to have regard to the need to ensure the most beneficial, efficient, and effective use of the Board’s resources.

Operation of Board II

Subject to such conditions as may be specified by the Minister, the Board may engage consultants and advisers as it may consider necessary for the performance of its functions.  It may pay fees from its funds. Such persons may include medical practitioners, accountants and other appropriately qualified persons.

Persons who wish to be engaged by the Board as a consultant or advisor may notify the Board in writing of the fact and any notification shall include particulars of their qualification and interest.  The Board is to maintain a list of persons who notify their wish accordingly.  The Board, in engaging consultants and advisors, are to have regard to this list. Nothing is to limit the Board in retaining a person who is not on the list.

The Board is to submit an annual report to the Minister on its activities after the end of each financial year.  The Minister is to cause copies to be laid before the Oireachtas.

The following provisions apply in relation to any database maintained recording details of accidents and incidents for the purpose of claiming damages for personal injury.  It must be maintained in accordance with the Data Protection Act.  They may be supplied to the Board for the purpose of its dealings with an application, any relevant particulars on the database.

Records and Rules

The Board may be supplied with certain particulars entered on a central database, which may be kept for that purpose. The following may be supplied

• Particulars of name and address of the complainant;
• Date of the accident or incident;
• Name and address of each of the persons who are claimant;
• Name of the insurance company or undertaking, if any, which has entered into an insurance policy with the above persons.

The Board may make rules in relation to the procedures to be followed in making assessments and consequential matters.  The rules are to enable the Board

• to issue an authorisation
• to issue an authorisation in circumstances where it would not otherwise be entitled to do where the claimant wishes to bring proceedings in respect of a claim against other persons, whom he has omitted through a genuine oversight or ignorance of all the facts relating to the matter to specify as a respondent
• to supply a copy of records supplied by one party to the other party
• to defer making a decision as to whether to issue an authorisation unless and until the relevant claim concerned has been the subject of an assessment or, as appropriate, a fresh assessment under this Act
• rules may include a requirement for (but subject to those rules permitting the Board to waive that requirement where, due to the lapse of time or other circumstances, compliance with that requirement would unduly interfere with the claimant’s right to bring proceedings)).

A claimant may in accordance with the rules withdraw an application made at any time before assessment in respect of a claim.  Where he does so, the Board shall take no further step.  If the application is withdrawn, the claimant may not in relation to a claim either bring a fresh claim or bring proceedings.

Some Duties of Board

Where a claimant indicates that he or she wishes to withdraw an application, the Board shall by notice in writing notify the claimant of the desirability of obtaining legal advice before withdrawing the application.  The application shall not be regarded as withdrawn unless and until 14 days have elapsed in the service of notice and a withdrawal of the claimant in the form prescribed by the Board is received.

It is the duty of the Board to ensure that assessments in relation to claims are made as expeditiously as may be.  For that purpose, the Board is to take all such steps as are open to it to ensure that in so far as practicable, there are no avoidable delays in any stage in making an assessment.

In particular, it is the duty of the Board to assure that every assessment is made within a period of nine months beginning on the date on which the respondent’s consent to an assessment is received.  If there are two or more respondents, the date of the consent by the consenting respondents.

Time for Assessment

Where it appears to the Board that it would not be possible or appropriate because of particular circumstances of the relevant claim concerned to make an assessment within the above period, the Board is to notify the claimant and respondent before the expiration of that period, informing them of the reason why it would not be possible or appropriate to make the assessment within that period.  It is to specify the date before which the Board intends that the assessment shall be made.  The date so made shall not be more than six months after the end of the nine-month period.

Where such a notice is given, the Board shall take such steps as are open to it to ensure that the assessment is made before the date specified.  If it is not made before that date, then unless the claimant consents in writing to the Board continuing to deal with the matter, it is the duty of the Board to issue to the claimant an authorisation to bring proceedings in respect of the claim.

In reckoning any period of time for the purpose of the statute of limitations applicable to the claim, the period beginning on the making of the application in relation to the making of a claim and ending six months from the date of issue of an authorisation is disregarded.  The same provisions apply to the special two-year time limit that apply on death under the Civil Liability Act on under international conventions by which the State is bound.

An assessment made in relation to a claim is not admissible as evidence in any proceedings between the claimant or respondent or the respondents in relation to the claim.  It is not to be referred to in any documents, pleadings, notices or affidavits.  This does not apply if the proceedings themselves or in connection with the enforcement of the assessment that it has been accepted or deemed to be accepted by the parties, one or more of the respondents.

Costs

Where an assessment is not accepted by the claimant or is deemed not to be accepted by the claimant and the respondent has decided to accept or is deemed to have accepted the assessment. If a claimant brings proceedings against persons who agree or are deemed to agree to the assessment,  no award of costs or other order for costs may be made in his favour where the damages awarded or accepted on foot of a settlement does not exceed the amount of the assessment above.

In this case, the court may at its discretion order the claimant to pay all or a portion of the defendant’s/respondent’s costs. There are further provisions in relation to proceedings against respondents, some of whom accepted and/or some of whom participated and did not participate.

The above provisions in relation to cost do not apply if a formal offer is made by the defendant and the amount of the offer is not equal to the amount of the assessment or a payment into court in satisfaction is made.

The provision does not operate to prohibit an award of costs or the making of any other order providing for payment of costs in favour of a claimant against a non-accepting respondent.  It is not deemed to confer on the court a power in the above circumstances to order a claimant to pay a portion of the cost of a non-accepting respondent or respondents.

If a claimant brings proceedings in accordance with the Act in respect of his claim, them in taxation of  costs in those proceedings, no amount shall be allowed in respect of any fees or expenses incurred by the claimant in connection with the application made to the Board in respect of the claim or in complying with the provisions of the Act, other than fees and expenses allowable under the Act.

This provision applies irrespective of whether the assessment of the claim has been made or whether the assessment has been accepted or is deemed to be accepted under the legislation by any party.