Ireland: The Judicial Council And Personal Injuries

(Updated to reflect changes reported in October 2020)

The Judicial Council (the Council), which consists of all of the Judges in the State, met in full for the first time on 7 February 2020.

The Council was established pursuant to the Judicial Council Act 2019 (the Act), which was brought into force with the purpose of promoting and maintaining judicial excellence and independence to ensure public confidence in the administration of justice.

Committees

In pursuant of its aims, and in accordance with the Act, a number of committees are being established within the Council:

1. Personal Injuries Guidelines Committee: Tasked with compiling guidelines for appropriate levels of damages for personal injuries, this committee is discussed in more detail below.
   
   
2. Sentencing Guidelines Committee: Responsible for compiling guidelines designed to increase consistency in relation to criminal sentences.
   
   
3. Judicial Studies Committee: Establishing a formal professional training regime for judges in line with other jurisdictions.
4. Judicial Support Committees: One will be established for each court jurisdiction, to assist the Council with its functions.
   
   
5. Judicial Conduct Committee: A disciplinary committee made up of eight judges and five "lay" people, with power to investigate complaints and issue reprimands, which will be published in the Council's annual report.

Personal Injuries Guidelines

Of particular interest to our clients will be the Personal Injuries Guidelines Committee (the Committee), which is due to be established on 28 April 2020. The Act provides that the first meeting must take place within one month of its establishment, with the first draft of the new guidelines to follow within six months – by 28 October 2020. However, it was reported on 7 October 2020 that a six week extension had been granted, bringing the deadline for the first draft forward to 9 December 2020, with the new guidelines scheduled to come into force after consideration by the Council on 31 July 2021.

The seven Judges who form the Committee are Ms. Justice Mary Irvine (Chair), Supreme Court; Mr. Justice Seamus Noonan, Court of Appeal; Mr. Justice Michael McGrath, High Court; Mr. Justice Senan Allen, High Court; Judge Jacqueline Linnane, Circuit Court; Judge Seán Ó Donnabháin, Circuit Court; and Judge Brian O'Shea, District Court.

The Act provides that the guidelines should be prepared by the Committee with regard to:

• The level of damages awarded for personal injuries by the Irish Courts.
• The level of damages awarded for personal injuries in other similar jurisdictions.
• The principles for the assessment and award of damages for personal injuries as determined by the High Court, Court of Appeal and Supreme Court.
• The need to promote consistency in levels of damages for personal injuries.
• Such other factors as the Committee considers appropriate.

The guidelines, once adopted, will replace the Book of Quantum and the Personal Injuries Assessment Board Act, 2003 has been amended accordingly. Judges will be required to provide reasons for any departure from the new guidelines in assessing damages in personal injury cases.

Fraudulent Claims

The Chief Justice has commented that whilst the Committee does not, strictly speaking, come within the ambit of insurance fraud, the judiciary do consider false or exaggerated claims to be a serious matter. It was emphasised, however, that for fraud to be established in accordance with the law, evidence must be produced to the criminal standard of proof beyond reasonable doubt, as opposed to the civil standard of the balance of probabilities.

Conclusion

A number of notable decisions of the Court of Appeal in the course of 2018 and 2019 have already had the effect of recalibrating personal injuries awards in the Superior Courts. Indeed, the Courts Service 2018 annual report observed a 29% reduction in the average High Court award. The extent to which the new guidelines will follow the trend toward a reduction in personal injuries awards remains to be seen, but they will undoubtedly result in more consistency in the assessment of damages for personal injuries claims in the future.