A Blog by Damian McGeady and Terence C Lacey.

In a landmark decision the Supreme Court has today struck down the Personal Injury Guidelines which came into force in Ireland in April 2021.

Delaney v PIAB, The Judicial Council Ireland and The Attorney General

The decision of the Supreme Court was handed down in the matter listed before the Court for judgement at 9am. The Appeal in the Judicial Review proceedings was from a decision of Mr Justice Meenan in the High Court.

On 12th April 2019 Mrs Delaney fell walking on a footpath grazing a knee and suffering an undisplaced fracture of the tip of the right lateral malleolus (minor ankle fracture).

She applied to PIAB. Respondent was the local authority, Waterford City and County Council. She was advised at the time that under the Book of Quantum general damages were in the range of €18,000.00 – €34,000.00. PIAB made an Assessment under the new guidelines in the sum of €3,000.00.

The Applicant initiated Judicial Review proceedings challenging the legal basis of the drawing up of the guidelines and that the PIAB erred in law in assessing the value under the guidelines and not the Book of Quantum.

The Limbs of Review.

• Impermissible delegation of legislation. That the Judicial Council Act 2019 failed to set out “Principles and Policies” for drawing up the guidelines. It was in breach of Article 15.2.1 of the Constitution – vesting sole power of legislation in the Oireachtas.
• That the provisions of the 2019 Act are unconstitutional being contrary to the constitutional provisions that provide for judicial independence (Article 35.2 of the Constitution).
• That the imposition of the guidelines is retrospective depriving the Applicant of vested rights (Retrospection).
• That the imposition of lower awards provisions were disproportionate and/or irrational and infringed the Applicant’s property rights, right to bodily integrity and equality under the Constitution.

The Decision of the High Court.

The matter was heard in the High Court by Mr Justice Charles Meenan. He held as follows:-

• There are well established principles for awarding general damages which is not just a matter between a Plaintiff and a Defendant, but also for society in general. Economic, social and commercial conditions have to be taken into account.
• Section 90 of the Judicial Council Act sets out clearly the “Principles and Policies” to be applied (see limb (i) above).
• In drawing up the guidelines the Judicial Council Committee methodically followed the “Principles and Policies”.
• The Committee was not mandated to reduce costs of awards (some more serious awards saw a rise in damages). The results were as a result of the Committee applying the provisions of the 2019 Act.
• The Committee was entitled to fix levels of awards having regard to levels of awards in other jurisdictions. Both the 2019 Act and the Supreme Court provided for this.
• The provisions allow a Court to depart from the guidelines therefore it is not an encroachment on judicial independence.
• Judicial independence, expertise and experience meant that the Judiciary is the appropriate body to draft the guidelines.
• The Applicant’s constitutional rights of property, bodily integrity and equality do not encompass a right to a particular sum rather a right to have damages assessed in accordance with well-established legal principals.
• In assessing the claim, PIAB acted in accordance with the PIAB Act 2003 (as amended).

The Supreme Court held that whilst the S7(2) (g) Judicial Council Act 2019 was held to be an impermissible delegation of legislation and an encroachment on the separation of powers the 2021 Family Leave and Miscellaneous Provisions Act lawfully corrected the position.

More analysis to follow.

9th April 2024