Judge fixes hearing for preliminary issue in personal injuries guidelines challenge

Issue raised is whether a judge who took part in guidelines vote should recuse themselves from lead case, court hears


By Aodhan O’Faolain for Irish Times

The High Court has fixed a date next month for the hearing of an important preliminary issue raised in the lead challenge against new guidelines for personal injury awards.

Mr Justice Charles Meenan said a fundamental issue raised is whether a judge who took part in last year’s vote by the Irish judiciary to adopt the guidelines should recuse themselves from hearing the lead case.

That action, brought on behalf of Bridget Delaney from Co Waterford, is one of several proceedings against the State, and the Personal Injuries Assessment Board (PIAB), the State body that makes personal injury awards, aimed at setting aside guidelines regarding awards for personal injuries claims.

In March 2021 the Judicial Council, the body made up of all the State’s judges, voted to adopt the new guidelines.

Both PIAB and the State oppose the challenges.

The State claims that the challenges are causing “real difficulties” regarding how personal injuries claims are dealt with by PIAB and the courts, and wants the proceedings heard as soon as possible,

Previously the judge said the action by Ms Delaney of Cruachan, Knockateemore, Dungarvan, Co Waterford should be the lead case.

In order to save on court time and legal costs, the judge said that some or all of the core issues raised should be determined in that action.

When the various cases were mentioned before the judge on Wednesday, he deemed that the preliminary issue on whether the lead challenge should be heard and determined by a judge who took part in the vote to adopt the new guidelines should be heard first.

Mrs Delaney represented by Feichin McDonagh SC, has brought several preliminary motions in her case, where she seeks to amend certain parts of her claim, discovery of certain material from the respondents, and seeks the recusal of any judge who voted on the guidelines from hearing the case.

The State, represented by Catherine Donnelly SC, said that her client will oppose the motion.

Counsel also raised the State’s concerns about the Delaney case being the lead action.

It would take some time before all the preliminary issues,as well as the full action itself are determined by the Court.

Counsel suggested that another of the challenges, which also raise many of the points raised in the Delaney action and is a much more advanced stage of readiness, take over as the lead action.

Lawyers involved in some of the other challenges submitted that their actions, which in several respects were different to the Delaney case, could be heard much sooner.

However Mr Justice Meenan said that the motion seeking the recusal of any judge who took part in the vote from hearing the case is a fundamental issue that needs to be determined first in time.

He fixed a hearing date for the recusal motion for two days starting on the 9th February.

Mr Justice Meenan adjourned all the other preliminary issues in Ms Delaney’s case and the other challenges to February 16th next.

In her judicial review proceedings against PIAB, the Judicial Council, Ireland and the Attorney General, Ms Delaney seeks orders quashing the assessment PIAB made in respect of her claim, and the Judicial Council’s decision to adopt the new guidelines.

She also seeks a range of declarations including that PIAB acted outside its powers, breached her rights to natural and constitutional justice, and that the Judicial Council acted outside of its powers in adopting the personal injuries guidelines.

She claims she fractured a bone in her right ankle, after she tripped and fell at a public footpath at Pinewood Estate Dungarvan Co Waterford on April 12th, 2019.

She required medical treatment and alleges she suffered her injuries due to the negligence of Waterford City and Council.

In June 2019 she submitted a claim to PIAB, seeking damages.

At the time she claims PIAB was required to have regard to the general guidelines as to the amounts that may be awarded or assessed in personal Injury claims, contained in the Book of Quantum, when assessing her application and making an award.

She claims that the appropriate awards for the injury she sustained ranged from between €18,000 and €34,000.

In May PIAB said in its assessment of her claim that she was entitled to €3,000 in general damages.

She rejects this assessment, says it is insufficient, and does not compensate her for the injuries she sustained.

She claims the assessment amounted to an error in law by PIAB and was in breach of fair procedures.

She also claims her assessment was delayed because PIAB was awaiting the coming into force of new Personal Injuries Guidelines and the assessment of her claim was wrongly made under the new guidelines.

She also claims that the requirement in the 2019 Judicial Council Act that members of the judiciary vote on the new guidelines is inconsistent with the independence of the judiciary and amount to an impermissible delegation to the administration of justice to the council.

She also claims that the adoption of the guidelines has violated Ms Delaney’s constitutional right to access to the courts.

The claims are denied.