Claims Ireland

Seismic Shift

The counselling had been going so well. The PIAB-traumatic stress disorder was under control, and there hadn’t been the need to write an Injuries Board-related article in over a year. And then it happened. Two major High Court decisions in the space of four months, and the cold sweats started again. The nightmares and flashbacks to 2004 were back, so my therapist said the best thing was to write it all down, get it out of my system. So here goes.

The first case arose out of a much-encountered problem since the introduction of PIAB. One of the most controversial aspects of the entire system has been the requirement to enclose a medical report with the original application in order to formally register the claim and stop the statute running.

Since 2004, a number of claimants and their solicitors have found it impossible to obtain a medical report before the time for lodging the claim has expired, thus resulting in much panic and threats – before the PIAB has usually relented and allowed the claim to be deemed received and complete for the purposes of the Personal Injuries Assessment Board Act 2003 without  such a report. This has generally occurred only in circumstances where the claim was on the verge of being statute barred.

However, some claimants have lodged the application, but have failed to enclose the medical report, or received a dispensation for doing so from PIAB, before the statute has run. Essentially, they had not obtained a letter deeming the claim received and completed before the expiry of the two-year period.

This has inevitably resulted in defendants in subsequent court proceedings pleading that the claim is statute barred. Up until 15 June 2010, such a plea does not appear to have been litigated – but this was to change in the case of Tara O’Callaghan v Laurence Hannon, in a judgment delivered in the High Court by Mr Justice George Birmingham. This does not appear to have been reported to date, but a transcript of the judgment was taken at the time.

The claim arose out of an accident that occurred on 27 April 2004. Because of the complicated transitional arrangements relating to the change in the statute following the Civil Liability and CourtsAct 2004, the statute in this instance did not run out until 30 March 2007. A personal injuries summons was not issued until 24 June 2008. The issue at stake, therefore, was whether or not the statute had stopped running while the claim was in the PIAB process and, in particular, whether the provision of a medical report was necessary in order to achieve this.

The plaintiff’s solicitor in this instance submitted the application on 5 April 2006 without a medical report, and the PIAB responded on 10 April 2006, stating: “We acknowledge receipt of your recent correspondence.  However, we require additional information before the application can be accepted as complete.” It then proceeds to set out a list of documentation, chief of which is the medical report.

It is not clear from the judgment, but it seems to be self-evident that the medical report was not lodged prior to the statute running on 30 March 2007. On the face of it, therefore, the claim appears to be statute barred, but this case has exposed a serious lacuna in the legislation, which has in fact been apparent from the outset but, for some reason, has never been rectified by the PIAB.

A matter of interpretation

The net issue in the case relates to the interpretation of section 11(1) of the 2003 act and PIAB rules 3(1) and 3(3). Section 11 essentially states that a claimant shall make an application under this section to the board for an assessment to be made under section 20 of his/her relevant claim, that such application shall be in a form specified by rules made under section 46, and be accompanied by such documents as may be so specified.

The rules were made – the relevant ones are rules 3(1) and 3(3). Rule 3(1) states that an application shall:

a) Be made in writing or by electronic mail,
b) Contain such information as may, from time to time, be specified by the board, and
c) Be accompanied by documentation as set out by the section, which includes a medical report.

The crucial provision is rule 3(3), which provides that “in relation to a relevant claim, the date for making an application under section 11 of the act for the purposes of section 50 shall be the date on which an application in the form specified in sub-rule 1(a), containing information specified in sub-rule 1(b), is acknowledged in writing as having been received by the board”.

In other words, providing the documentation, as set out in sub-rule 1(c) (including a medical report), is not required for the purposes of stopping the clock pursuant to section 50. Mr Justice Birmingham so found and determined that the claim was not statute barred.

As it is a judgment delivered viva voce, it is not fully reasoned in the manner one would expect from a written judgment, but there is little doubt about his rationale and, further, that it is absolutely correct.

A note of caution though – practitioners should not use this as a reason not to provide the medical report with the application. In theory, a different High Court judge could reach a contrary conclusion in a more formal manner. While this is unlikely, having regard to the clear nature of the wording, anything is possible in litigation. Furthermore, it is open to PIAB to simply repeal rule 3 by passing a new set of rules by way of statutory instrument. In the circumstances, the wisest course is to continue to provide a report with the application before the statute runs and, if this is not possible, to ensure that PIAB deems the application received and completed, in writing, before the statute runs.

Issue of costs

The second significant case relates to the issue of costs in the PIAB process. Before 2007, the PIAB provided no costs to any claimant but, in that year, was overcome with generosity and began to award costs in situations where it deemed the claimant to be “vulnerable”. These awards have been haphazard at best and do not appear to follow any discernible pattern.

The inconsistency shown by the PIAB eventually raised the ire of two Polish claimants, Grzegorz Plewa and Krzysztof Giniewicz. In the case of the former claimant, a professional fee of €2,000 plus VAT was sought in addition to €350 for translation services. The sum of €350 was awarded for translation, but nothing for legal fees. The second claimant sought legal fees of €1,000 plus VAT plus postages, and so on, of €100 plus VAT, together with a similar claim for translation fees. He too was awarded the translation fees in the amount claimed, but only €400 plus VAT towards legal fees.

Both men sought reasons for the decisions relating to the legal fee deductions. In the case of Mr Plewa, the board simply stated that they did not feel the fees were “reasonably and necessarily” incurred, which is the requirement for such an award under section 44 of the 2003 act.

Mr Giniewicz received a slightly different response and was told by the board, after being pressed by the claimant’s solicitors, that costs awarded were all that were reasonably and necessarily incurred, and
such costs were awarded as a result of the issue of identifying the correct defendants, which had been particularly troublesome in this case.

Both men brought a judicial review, which was heard by Mr Justice Sean Ryan, following which a joint written judgment was delivered on 19 October 2010 (Grzegorz Plewa and Krzysztof Giniewicz v Personal Injuries Assessment Board).

The judge dismissed the judicial reviews on the grounds that “the applicants had not established any failure by the respondent to comply with the act of 2003, nor were they able to demonstrate any breach of fair procedures, unlawful fettering of discretion, unreasonableness, objective bias or other ground to invalidate the board’s decision”.

While the judgment is lengthy, the essential reasoning behind his decision is that the board had demonstrated that they had considered the applications for costs, had provided costs towards translation in both cases, and provided costs in the case where they deemed legal issues had arisen. He determined that no case had been made for higher costs in either case.

‘A very harsh view’

This is undoubtedly a very harsh view of the many difficult issues facing claimants when making a claim, such as the statute, advice on the reasonableness of an award and, in at least one of these cases, the seriousness of the injuries and the long-term consequences for the claimant, in addition to the potentially egregious sanctions that can follow from failing to beat such an award in court.

However, the claimants in this case and, presumably also Mr Justice Ryan, were hamstrung by the Supreme Court decision in the O’Brien case, from which the judge quoted extensively. He referred to the dicta of both Macken J and Denham J, the latter of whom went so far as to say “a claimant cannot recover his costs for legal representation at PIAB” (compare with section 53).

The applicants had begun the judicial review proceedings before the decision was handed down by the Supreme Court in December 2008 and, following that decision, always faced an uphill battle to persuade the court that costs should follow in any circumstances.

So, two fairly seismic decisions with mixed resultsfor claimants.