Business association ISME says it would be “unconstitutional” for a private vote of judges to alter the proposed guidelines for personal injuries awards drawn up by the Personal Injuries Commission.
Chairman Ross McCarthy has written to the government expressing concerns about the Judicial Council’s consideration of the proposals, after reports that some judges have circulated documents to their peers arguing against aspects of the guidelines.
McCarthy said that many of the judges involved in considering the proposals “have an immediate family member involved in personal injuries litigation as a solicitor or as a barrister”, and that the “Chief Justice is bound to ask all members of the Judicial Council so affected to remove themselves from consideration of the proposed awards recommendations on Saturday”.
His letter added that the business community and civil society groups “were assured by government that it was committed to the Personal Injuries Commission process as the definitive route to recalibrating damages,” that it is for the Oireachtas “and not the judiciary” to make laws.
“ISME has grave reservations about the constitutionality of judges voting privately in matters of public policy and law,” McCarthy stated. “It is the clear duty of the Taoiseach to ensure the judiciary does not fall into error by intruding upon the functions of the Oireachtas and the government.”
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ISME chief executive Neil McDonnell (pictured) added: “Failure by the Judicial Council to make a meaningful reduction in damages this Saturday will regrettably necessitate the council’s complete removal from the process. We cannot wait any longer for reform on this issue. Should the Judicial Council not recommend a reduction in general damages for minor injuries at, or very close to the 80% reduction sought by ISME, we will recommend that the Civil Liability (Capping of General Damages) Bill 2019, which lapsed in the 25th Seanad, be adopted by the government and enacted immediately.”
“Awards for minor injuries are so large in Ireland, and so out of kilter with those among our neighbours, that even reducing them by half will not remove the economic incentives to sue for minor, paracetamol injuries. If the Judicial Council does not include in its deliberation’s consideration of the Civil Liability Act 2018 in the UK, then its conclusions will be out of date and obsolete upon the day of publication.
“The new UK legislation will reduce compensation for minor whiplash to below £2,000. The 80% reduction in minor injury quantum being recommended by ISME will still be significantly less than the 90% reduction taking place in the nearest jurisdiction.”
A remotely-held meeting of the Judicial Council on February 5 was postponed to Saturday 20 February because judges wanted more time to consider the proposals.
Since then several have argued against the proposed terms, including a member of the Court of Appeal. As well, several judges experienced in personal injury cases submitted a collective memo arguing against, while no memo in favour has been circulated.
One High Court judge argued the so far unpublished guidelines might result in injured people getting awards significantly short of what could be regarded as fair and reasonable. He feared that younger people with certain injuries and disabilities could be treated particularly unfairly.
Another judge questioned whether whiplash awards in Ireland are significantly higher than those in Northern Ireland or Britain, querying whether cost of living differences had been taken into account.
The judge, who is highly regarded by colleagues, questioned whether the council had the statutory authority to reduce awards and said he would not vote for the draft guidelines.
The draft guidelines limit judicial discretion, set tighter limits on awards for specific injuries, and could lead to earlier and cheaper settlements and lower legal costs.
