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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Brien v. Personal Injuries Assessment Board [2005] IEHC 100 (25 January 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H100.html Cite as: [2007] 2 IR 1, [2005] IEHC 100 |
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Neutral Citation No: [2005] IEHC 100
Record No. 2004 785JR
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTIES
JUDGMENT of Mr. Justice John MacMenamin dated the 25th day of January, 2005
The applicant in these proceedings lives at Esker Meadow, Tullamore Co. Offaly. He is a single man. His date of birth is 8th September 1972.
At the times material to the proceedings he was employed at the premises of Galtee Meats, Clara Road, Kilbeggan, Co. Westmeath as a boner in a meat factory, and was working on a sub-contract to a company known as Ard Meats Limited. His job involved boning carcasses of beef at a table.
While in the course of this employment the applicant alleges that an accident befell him on 5th November 2001. He claims that an overhead line which was carrying carcasses of meat collapsed as a result of which he was struck on the back and sustained injuries.
He was taken to Tullamore Hospital where he was x-rayed and had a bone scan. As a result he was certified 'off work' for a period of approximately four months. It is contended that he had a gradual return to work with periods off work when his back pain became acute.
The applicant returned to work in or about February 2002. He contends that he gradually became aware that although working full-time, he was able to produce only about 75% of his previous output. His earnings suffered proportionately. He asserts he has not been able to return to his previous level of productivity. He is apprehensive that he will not be able to do so. He claims that he suffers pain and aches at the end of a days work.
The applicant did not initiate proceedings immediately after the alleged accident. It was only on 12th August 2004 that he travelled from Tullamore to a solicitor's office in Newbridge, County Kildare. He instructed his solicitor, Mr. Denis Boland of P.V. Boland and Company. He told him the circumstances of the accident and gave a summary of the circumstances.
The applicant was informed by Mr. Boland that, because of the coming into operation of the Personal Injuries Assessment Board Act 2003 (hereinafter 'the Act'), his claim would have to be initiated by making an application to the Personal Injuries Assessment Board (hereinafter 'the Board'). This is because the Act provides that a potential claimant is prohibited from initiating civil proceedings in pursuit of damages for injuries without having first made application to the Board.
Of more immediate concern was the Statute of Limitations. The three-year time limitation was looming large as a consideration. It would have run its course in approximately eleven weeks from the date on which Mr. Boland first met his client, that is 4th November 2004. The accident, it will be remembered, is alleged to have occurred on 5th November 2001.
Mr. Boland arranged for his client to visit him again in his offices on 16th August. By that time he hoped to be in a position to advise him further, and to identify the manner in which proceedings should be initiated. The solicitor had in mind the steps necessary to assemble a claim for personal injuries. These include obtaining a medical report; corresponding with the applicant's employers and the owners of the factory in which he was working; identifying loss of earnings; corresponding with the orthopaedic surgeon who had treated him; and generally assembling the data necessary to process the claim.
Mr. Boland also wished to contact the Board to inform them of the claim and to put them on notice of its pending arrival, and also to advise them of his concern in relation to the Statute of Limitations which was at that time a primary concern.
Prior to the coming into operation of the Act in May 2004, the applicant's solicitor would have been able to protect his position vis-à-vis the three-year time limit simply by issuing a plenary summons in the High Court.
Mr. Boland in his affidavit states that on 16th August 2004, he telephoned and had a conversation with a Ms. Jo Crowley who works in a call centre. This call centre, run by a company named S.M.S. Business Process Outsourcing Limited, acts as an agent to which the Board outsources the business of processing claims.
Mr. Boland states that in the course of his conversation with Ms. Crowley he gave her particulars of the claim. He expressed concern regarding the Statute of Limitations. He gave an outline of the claim as the client had presented it to him. He indicated that he would be sending an authority to the Board on behalf of his client. This would require the Board to deal directly with him as the applicant's solicitor.
The applicant states he would not have the facilities necessary for the initiation and preparation of a legal claim of this type. He has neither office, nor typing, nor secretarial, facilities.
Mr. Boland states that Ms. Crowley asked to be given the applicant's telephone number. As it transpired the conversation was being recorded, and such recording was kept and preserved by the Personal Injuries Assessment Board.
Within three hours of the conversation Ms. Crowley had contacted the applicant personally on his mobile telephone. The applicant was at the time at the side of the street. He spoke with Ms. Crowley. By the end of this conversation the applicant had formed the view that he was being told by Ms. Crowley that he did not really need the services of a solicitor and that all that he needed to do was to send in a medical report to the Board. I am satisfied that this view was erroneous.
The contents of the transcript of the call do not bear out that impression. While Mr. O'Brien may have formed this view it was not as a consequence of any specific statement made by Ms. Crowley or any statement emanating from the Board to him directly.
The applicant states that he reported this matter to his solicitor. He was resentful of the position being taken by the Board. He wished to receive neither advice from the Board nor instructions of an unsolicited type from any such person or body.
Mr. Boland completed the application form, which he had obtained from the Board on behalf of his client. He also completed and furnished to the Board a document entitled 'Confirmation and Authority', signed by his client, whereby he was appointed solely to conduct business on behalf of his client. This document dealt with his authority (1) to act with reference to Mr. O'Brien's claim before the Board; (2) to receive all settlement cheques; (3) solely to deal with all correspondence on behalf of Mr. O'Brien; (4) to act in any subsequent court proceedings. The document also recited Mr. O'Brien's liability for all necessary outlay and legal costs incurred in proceedings before the Board and acknowledged that the Board would not pay the claimant's legal costs.
He wrote to Mr. Cogley, the consultant surgeon who had been treating the applicant. He wrote preliminary letters to his client's employer and the owners of the factory. He was concerned that, at that point, he had not received a medical report. He was also concerned that the Board were insisting that the medical report would form part of, and be a necessary adjunct to, the application. Mr. Boland apprehended that, in the absence of such a report, the application would not be considered to be a full and complete one. For this reason he intervened in an endeavour to expedite and obtain this report.
On 19th August 2004, the Board wrote directly to the applicant. This procedure was at variance from that proposed by the applicant himself and Mr. Boland. It was at variance from the authority which had been furnished to the Board by Mr. Boland. On 24th August 2004, Mr. Boland replied to the Board complaining of the fact that it had not recognised the authority he had furnished to it, authorising him to receive communications on behalf of the applicant. He indicated the difficulties he anticipated he would have regarding the obtaining of a medical report before the expiry of the three-year time limit prescribed by the Statute of Limitations.
On 26th August 2004, Mr. Boland received a telephone call from a Mr. Hewson, an official of the Board, indicating that it would not deal directly with solicitors. However Mr. Hewson indicated that the Board would furnish copy correspondence to Mr. Boland. He stated that Mr. O'Brien's claim would not be registered without a medical report.
Correspondence took place from that date until the middle of September at which time the issue of the registration of the applicant's claim was unresolved. So too was the extent of recognition which had been given to the letter of authority which had been furnished by Mr. Boland to the Board.
Mr. Boland's apprehension appears to have been as follows: that the Board was adamant that it would only register the claim on receipt of the medical report; that it might refuse to copy correspondence to him unless his client signed an authority which they themselves proffered; and furthermore, that even if his client executed an authority produced by the Board, it would continue to correspond directly with him albeit that it would also send copies of such correspondence to Mr. Boland.
In the meantime, Mr. O'Brien signed no further authority other than that previously signed on 16th August 2004.
A series of telephone calls took place in September. From these it emerged that the Board would register the claim if by chance the solicitor had not obtained a medical report for his client by 31st October 2004.
On 7th September 2004, the applicant initiated judicial review proceedings. He sought an order of mandamus directing the respondent formally to record and register the applicant's claim in order to stop the Statute of Limitations from running in respect of his claim; a similar order directing the respondent to register the applicant's claim having already recorded it on 19th August; an injunction directing the applicant to stop and cease the interference in the client/solicitor relationship between the applicant and his solicitor; and a further order directing the respondent to abide by the irrevocable authority signed by the applicant on 16th August 2004 in relation to his claim.
The grounds upon which the relief was sought at that stage were:
(a) that the Board had acted unreasonably,
(b) that the exercise of the discretion vested in the Board's officers in relation to the making of an assessment of the applicant's claim and the subsequent failure to register that claim had been exercised unreasonably,
(c) that the conduct of the officers in the handling of the claim had been such as to interfere with the applicant's solicitor/client relationship and thereby to fetter the applicant's access to proper legal advice and the proper administration of justice, and
(d) that in its manner of processing the applicant's claim the Board was acting ultra vires and contrary to the rules of natural and/or constitutional justice.
In the shadow of these proceedings Mr. Maurice Priestley, Director of Operations, sent the following letter to Ms. Catriona Byrne, solicitor in the firm of Patrick V. Boland and Son. This letter was dated 17th September 2004.
"Dear Ms. Byrne,
We thank you for your letter of 14th September and confirm our telephone conversation today.
We appreciate your concern regarding the Statute of Limitations and the protection of Mr. O'Brien's interest. We would however like to assure you that our procedures and policies have been developed in order to protect any claimant who finds themselves in this position.
To facilitate Mr. O'Brien we propose either of the following:
1. If you remain unable to obtain a transcription of your clients medical records by 31/10/04 we will register the claim and we will proceed to arrange an independent medical examination through our nationwide panel.
Or
2. We can immediately arrange such an independent medical examination and again we will register the claim by 31/10/04.
In either of the above instances we undertake to register Mr. O'Brien's claim by 31/10/04.
It is not clear from your correspondence as to why Mr. O'Brien is experiencing difficulty in obtaining a transcription of his medical records, including treatment, medication etc. to date but it is important to point out that such records must be made available to Mr. O'Brien.
It is also mentioned that you intend to make an application in relation to the authority signed by Mr. O'Brien on 16/08/04; in this regard we should point out that it is PIAB Board policy to deal direct with claimants. We acknowledge that some claimants will independently appoint legal advisors at their own cost and with a PIAB signed authorisation; it is also Board policy to copy the advisor in on all correspondence. To facilitate Mr. O'Brien we will accept the authorisation currently signed pending receipt of the PIAB authorisation being completed in due course.
If you proceed, as advised, with the application on 22/09/04 we would respectfully request that you have the application adjourned to allow us a right of audience and a reasonable time to deal with any remaining concerns.
It is also requested that in the application of 22/09/04 that this letter is fully disclosed to the court.
Yours sincerely
Maurice Priestley
Director of Operations."
At hearing, this Court was informed that it was not possible to have the matter listed in the vacation sitting. The matter then appeared before de Valera J. on 4th October 2004.
Between 17th September and the first day of term there were communications both by telephone and letter between Mr. Boland and Messrs. Arthur Cox and Co. who had come on record on behalf of the respondent. As will be seen, one of the issues which had arisen in Mr. Priestley's letter was as to whether the relief by way of mandamus directing the Board to register the claim would be pursued, or whether indeed it was necessary in the circumstances. There was a clear lack of consensus at this point as to whether Mr. O'Brien's claim would be registered unconditionally or whether such registration was to be subject to the conditions outlined in the aforesaid letter of 17th September.
When the matter came before de Valera J., Mr. Boland took the view that he was satisfied with the terms of the letter of 17th September from Mr. Priestley, although there was concern among some members of the applicant's legal team that the letter did not constitute an undertaking given by one solicitor to another.
De Valera J. made an order giving leave to seek judicial review both by way of mandatory relief and also by way of declaratory order.
Thereafter on 28th October 2004, the matter came before Quirke J. at which time the applicants wished to amend the relief being sought. Their concern was that they wished to challenge as unconstitutional or in breach of the European Convention on Human Rights any inflexible policy of dealing directly with clients notwithstanding authority, if such was asserted by the Board.
At that hearing, an issue arose as to whether the order seeking judicial review in respect of the mandatory relief had been granted in error. This matter was disputed by counsel for the applicant who stated that the relief by way of mandatory order would not be abandoned until the claim of the applicant had been registered by the Board.
On behalf of the applicant it was submitted that the undertaking given by the Board was not a form of undertaking from one solicitor to another. It was further contended the relief would still be pursued until the claim was registered or until the respondent Board gave an undertaking in open court that the claim would be registered on or about 31st October, 2004.
Counsel on behalf of the Board stated that the Board would not register the claim without further ado. They had awaited a medical report from Mr. Boland and they said that Mr. Boland had undertaken a duty to his client to procure a report and that he would be legally exposed if a report was not obtained.
It is unnecessary I think to rehearse the minutiae of matters which transpired before Quirke J. Suffice it to say that the letter of 17th September emanating from the Board was couched in very specific terms indeed. It indicated that in either of the instances numbered '1' and '2' the Board would undertake to register Mr. O'Brien's claim by 31st October, 2004. The letter did not give any undertaking regarding the situation that would exist in circumstance other than the defined alternatives set out at the two options by Mr. Priestley.
There was perhaps a degree of vagueness in the letter, in that at option '1' it stated "if you remain unable to obtain a transcription of your client's medical records by 31/10/04 we will register the claim…". Clearly a most difficult situation might have arisen if a court were to take the view later that the claim for mandatory reliefs had been abandoned in circumstances where the Board and its advisers did not consider that the applicant had availed of either of the precise options outlined in a letter of 17th September 2004. For example, what would have happened if the applicant had insisted on Mr. Cogley's being the relevant report or if the "stand-off" continued?
Fortunately the medical report arrived from Mr. Cogley. This, curiously, was dated 3rd September 2004, albeit signed on 18th October of that year. The report was furnished to the Board. The claim was registered on 22nd October, 2004. For this reason it was unnecessary to pursue any relief by way of mandamus.
The issue of what would have occurred without the intervention of the applicant's solicitor, and the precise status of the undertaking linked to the two very defined circumstances by the Board, are not ones which need not trouble the court in the circumstances.
I am satisfied there was no mala fides on the part of the Board, nor on the part of Mr. Boland. There was an atmosphere of heightened sensitivity on both sides, coupled with a disposition to stand on principle. I infer that there was a misunderstanding as to the precise effect of the Board's letter.
Prior to the hearing of these proceedings on 14th December 2004, an application was made to the President of the High Court on 1st December 2004, on foot of which the Law Society of Ireland were permitted to appear in the proceedings as amicus curiae.
The issues
An 'issue paper' was agreed between counsel for both sides. This identified the issues which fall for determination by this Court as follows:
Whether the respondent, in declining to accept or act upon the authorisation dated 16th August 2004, and by corresponding directly with the applicant (in copying such correspondence to his solicitor), is acting in breach of:
(a) s.7 of the Personal Injuries Assessment Board Act 2003;
(b) the applicant's constitutional rights;
(c) Article 6.1 of the European Convention on Human Rights; and
(d) s.3 of the European Convention on Human Rights Act 2003.
During the course of argument, counsel for the applicant clarified that issues (c) and (d) were no longer being pursued.
On foot of the determination of issues (a) and (b) above, the applicant seeks an order directing the respondent to abide by the irrevocable authority signed on 16th August 2004; and if necessary a declaration that the Board in failing to communicate with the applicant's duly appointed solicitor has acted in a manner at variance from, and contrary to, the applicant's constitutional rights and/or the provisions of s. 7 of the Personal Injuries Assessment Act, 2003.
It has been made clear that for the purposes of these proceedings the applicant is not impugning the constitutionality of the Act. Nor is any declaration being sought that any provisions of the Act are incompatible with the European Convention on Human Rights.
The applicants emphasise this, because it is their submission that the respondent may apply any policy which they wish, but only in a way which is conformable to the rights of the applicant under Bunreacht na hÉireann and the European Convention on Human Rights respectively. Thus if the statutory provisions of the Act allow of a construction which is constitutional, or one which is otherwise, there is an obligation to apply the provisions of the Act in a constitutional fashion. Similar considerations arise in respect of s. 3 of the European Convention on Human Rights Act.
This submission is made in the light of a letter from the solicitors acting for the Personal Injuries Assessment Board, Arthur Cox and Company, dated 6th December, 2004. Because a number of issues are identified in this letter it is as well to quote a portion of it. At page 2 it states:-
"…The applicant in these proceedings challenges the procedure adopted by the respondent in corresponding directly with the applicant (and copying such correspondence to you …) rather than corresponding exclusively with your firm. The respondent contends that:
(a) there is nothing in the Personal Injuries Assessment Board Act, 2003 (the "2003 Act") to preclude the Board from acting as it has done;
(b) the practice of the Board is consistent with the entire thrust tenor and policy of the 2003 Act; and
(c) the Board's practice in this regard arises by necessary implication from the long title of the 2003 Act and from sections of the 2003 Act such as ss.7, 29, 44 and 54…."
As will transpire a number of opportunities arose during the course of the hearing whereby counsel for the respondent assisted by indicating the nature of the practice adopted by the Board.
The Personal Injuries Assessment Board
The Personal Injuries Assessment Board was established in April 2004 pursuant to s. 53 of the Act to perform the functions conferred upon it by the Act.
The principal functions of the Board are specified in s. 54 of the Act. They include:
(i) arranging for the making, in accordance with the Act, of assessments of relevant claims which are the subject of applications to it under s. 11, and
(ii) preparing and publishing a document known as the "book of quantum" containing general guidelines as to the amounts that may be awarded or assessed in respect of specified types of injury.
The provisions governing the making by a claimant of an application for assessment to the Board are contained in s. 11 of the Act and in rules made by the Board under s. 46. These rules are entitled the "Personal Injuries Assessment Board Rules 2004" (hereinafter the "rules"). They were brought into effect by way of S.I. No. 219 of 2004.
The Board is stated to be an administrative body established under the Act which assesses the value of claims. The assessment is not binding on either the claimant or on the respondent to a claim. The Board does not make any finding on the issue of liability between the parties. It makes no determination of liability. Where an assessment is made by the Board, a respondent has no liability to pay the amount assessed unless it accepts the assessment. A claimant has no entitlement to receive the amount assessed unless it is accepted by the respondent.
A claimant has twenty-eight days to decide if he or she will accept the award. In the absence of any decision within the twenty-eight day period the Board will issue an authorisation to proceed to Court if the claimant wishes.
A respondent to a claim has twenty-one days to reject the award. If the respondent does not respond, the Board may assume that it has agreed to pay the award and will issue an order to pay. Such an order has the same status as an award of the court.
The long title of the Act provides, somewhat infelicitously, that it is "an Act to enable, in certain situations, the making of assessments, without the need for legal proceedings to be brought in that behalf, of compensation for personal injuries (or both such injuries and property damage), in those situations to prohibit, in the interests of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the particular assessment or certain other circumstances apply, to provide for the enforcement of such an assessment, for those purposes to establish a body to be known as the Personal Injuries Assessment Board and to define its functions and to provide for related matters".
Relevant Statutory Provisions
It would be helpful now to refer to a number of specific sections of the Act.
In s. 7 it is provided:-
"7.—(1) Nothing in this Act is to be read as affecting the right of any person to seek legal advice in respect of his or her relevant claim and no rule shall be made under section 46 that affects that right.
(2) Subsection (1) shall not be read as requiring any procedure to be followed by the Board or hearing to be conducted by it that would be required to be followed or conducted by a court were the relevant claim concerned to be the subject of proceedings."
Section 29 of the Act provides:-
"29.—(1) If the Board considers it to be a reasonable inference from the manner in which a claimant or a respondent has completed, or is completing or attempting to complete, a step required to be taken by him or her by or under this Act that he or she does not have a sufficient appreciation of the legal consequences the taking of that step, or the following of the procedures generally under this Act, may have in respect of his or her rights or obligations as regards the relevant claim, it shall be the duty of the Board to do one, or more than one, as it considers appropriate, of the following things.
(2) Those things are—
(a) to advise the claimant or respondent, as appropriate, of the desirability of his or her obtaining legal advice in the matter,
(b) to provide an explanation to the claimant or the respondent of the legal consequences generally a failure to complete properly the step concerned or to follow properly the procedures generally under this Act may have in respect of a claimant's or respondent's rights or obligations as regards a relevant claim,
(c) to provide such assistance as the Board considers reasonable to the claimant or the respondent, as appropriate, in completing the step concerned properly or, as the case may be, re-taking that step in a proper manner.
(3) The respondent or respondent or, as appropriate, the claimant shall be informed by the Board, as soon as may be after the doing of that or those things, of the fact that one or more of the things referred to in subsection. (2) (but not the doing alone of the thing referred to in paragraph (a) of that subsection) has been done.
(4) The Board shall ensure that the doing of the thing referred to in paragraph (b) or (c) of subsection (2) is accompanied by a statement to the claimant or the respondent, as appropriate, that the doing of that thing does not absolve the Board of the duty to cause an assessment of the relevant claim concerned to be made impartially.
(5) For the avoidance of doubt no statement contained in any medical report or other document furnished to the assessors in respect of the relevant claim concerned, of itself, gives rise to any duty on the part of the Board to do one or more of the things specified in subsection (2)."
Section 44 deals with the issue of expenses incurred by the claimant. It provides that once the Board has made an assessment as to the compensation payable to the claimant it may furnish a statement to the effect that the Board will direct, if the assessment is accepted by the claimant, and accepted or deemed to be accepted by the respondent or one or more of the respondent, that such respondent or respondent shall pay to the claimant (in addition to the amount of the assessment) a specified amount, being the whole or part, as the Board in its discretion determines, of certain fees or expenses of the claimant. Thos fees or expenses are, according to s. 44(3):
"fees or expenses that, in the opinion of the Board, have been reasonably and necessarily incurred by the claimant in complying with the provisions of this part or any rules under section 46 in relation to his or her relevant claim."
Section 46 of the Act provides:-
"46.—(1) Subject to the provisions of this Part, the Board may make rules concerning the procedure to be followed under this Part in relation to—
(a) the making of applications under section 11,
(b) the making of assessments under section 20, and
(c) matters consequential on, or incidental to the foregoing.
(2) Rules under this section shall enable the Board to supply a copy of any records or other documents furnished by a claimant or a respondent to it, pursuant to this Act or the exercise by it or any member of its staff of powers under this Act, to a respondent or, as the case may be, a claimant in relation to the relevant claim concerned.
……"
Section 54 deals with the functions of the Board. It provides:
"54.—(1) The principal functions of the Board shall be—
(a) to arrange for the making, in accordance with this Act, of assessments of relevant claims the subject of applications to it under section 11,
(b) to prepare and publish a document (which shall be known as the "Book of Quantum") containing general guidelines as to the amounts that may be awarded or assessed in respect of specified types of injury,
(c) to cause a cost-benefit analysis to be made of the legal procedures and the associated processes (including those provided for by this Act) that are currently employed in the State for the purpose of awarding compensation for personal injuries,
(d) to collect and analyse data in relation to amounts awarded on foot of, or agreed in settlement of, civil actions to which this Act applies, and
(e) to perform any additional functions conferred on the Board under
s. 55."
"(2) The Board shall have all such powers as are necessary or expedient for, or incidental to, the performance of its functions under this Act."
"(3) The Board may perform any of its functions through or by any member of the staff of the Board duly authorised in that behalf by the Board."
Under s. 55 of the Act the Minister may with the consent of the Minister of Finance confer on the Board, by order, such additional functions connected with the functions for the time being of the Board as he or she thinks fit, subject to such conditions (if any) as may be specified in the order. Such an order may contain such incidental, supplemental and consequential provisions as may, in the opinion of the Minister, be necessary to give full effect to the order.
In s. 79 it is provided:-
"79.—(1) A notice or other document that is required to be served on or given or issued to a person under this Act shall be addressed to the person concerned by name, and may be so served on or given or issued to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
(2) For the purposes of this section a company shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business."
Under the rules, Rule 5 provides "The Board may supply a copy of any records or other documents furnished by a claimant, a respondent or any other person to it pursuant to the Act or the exercise by it or any member of its staff of powers under the said Act, to a respondent, a claimant or as the case may be such other person as the Board considers appropriate in relation to the relevant claim concerned."
The Board's practice with regard to solicitors acting for claimants
In order better to identify and clarify the issues for determination by the Court, counsel for the Board, Mr. Eoghan Fitzsimons S.C., helpfully set out during the course of his submissions the practice of his client insofar as it relates to communications with solicitors. These are set out next, in order to place in context the submissions of the parties.
This practice, of course, must be subdivided into that which is normally adopted regarding claimants who suffer from no incapacity or vulnerability, and that which is normally adopted regarding those who suffer from what may be perceived or identified by the Board as an incapacity or vulnerability. In regard to the former, the Board submits as follows:
1. It will correspond directly with claimants.
2. It will copy letters sent by it to claimant solicitors (a) when the solicitor makes contact by phone or letter and (b) if the claimant requests a solicitor to be copied. (For these purposes 'copied' and 'written to' are to be treated as synonymous terms.)
3. It will require a mandate authorising the copy of correspondence to solicitors or other third parties.
4. To date, it has not declined to copy solicitors by reason of non-receipt of mandate.
5. It accepts correspondence and phone calls from solicitors and in that context, and also where claimants are concerned, it will give guidance on the Board's processes, but it will not advise on the interpretation of legislation.
6. Where correspondence of a legal nature is directed to the Board from solicitors, for example threatening proceedings (as in this case), it will correspond with the solicitor.
7. The practice of the Board is a matter for its own discretion, subject of course to the relevant statutory and constitutional rules, and may change from time to time at the Board's discretion.
8. The discretion exercised by the Board in deciding upon its practice is one which is within the law and the Constitution.
As regards vulnerable claimants the practice or policy of the Board is as follows:
(i) By virtue of s. 29 of the Act the Board is not required to correspond with solicitors even solicitors for vulnerable applicants.
(ii) However s. 29 requires the Board, in accordance with its precise provisions, to take steps in relation to legal advice for the protection of claimants and even though not required to do so, the Board does correspond with solicitors for vulnerable litigants.
(iii) Such categories of vulnerable litigants include, in the view of the Board, and in accordance with practice, minors and claimants who initiate proceedings as next-of-kin of deceased persons.
In the course of argument, further assistance was provided to the Court regarding refinements to the policy or practice adopted regarding claimants in general. These refinements include the following:-
(a) There is no specific policy regarding a claimant who insists that correspondence should take place with a solicitor. At the present time the policy is to communicate directly with the claimant.
(b) In an extreme case, perhaps, the Board might exercise its discretion to look at the situation and review it.
(c) That in specific and identifiable cases, e.g. a claimant living overseas, the Board might, in its discretion, regard such a person as being a vulnerable litigant.
(d) A person with a language or literacy difficulty might be regarded by the Board as coming within the category of a vulnerable person.
(e) So too may a person confined to hospital.
(f) With regard to claimants of no fixed abode, it is the practice of the Board to ask the solicitor whether the claimant has a temporary address at which he or she can be contacted. In the absence of receiving any details of a temporary address, and pending a temporary or fixed address being forthcoming, it is the practice of the Board to write to the claimant care of the solicitor's address, and to copy the solicitor with correspondence in accordance with the general practice of the Board;
(g) With regard to a claimant living overseas the policy of the Board is to seek to correspond with such an individual by post, if necessary by courier, and if necessary by e-mail. If it transpires that such individual is out of contact altogether the Board will correspond directly with his solicitor.
The intended practice of the Board at (f) above in dealing with persons of no fixed abode is to say the least unusual. In such circumstances, the Board would envisage sending two letters to the solicitor's office: one addressed to the claimant himself or herself, and the second to the solicitor. It is to be inferred that the contents of such letters would be identical. While this policy had not actually been implemented, the Court was informed that it was about to be, in one case.
As a matter of fairness it must be pointed out that the Board is in the first few months of its existence. Its policy is evolving. Counsel indicated that it will seek, within its discretion, to address each and any position that may arise in as fair a manner as possible.
The applicant's submissions
On behalf of the applicant, Mr. Harry Whelehan S.C. submitted as follows:
1. The question of a constitutional right of access to the courts cannot be in dispute; see Murphy v. Greene [1990] 2 I.R. 556 per Griffin J. at p. 578:-
"[I]t is beyond question that every individual, be he a citizen or not, has a constitutional right of access to the courts. Stated in its broadest terms this is a right to initiate litigation in the courts".
2. Whether this right carries with it a right of an individual to be legally represented (in court) is categorically answered in the affirmative by a unanimous decision of the Supreme Court in R.B. v. A.S. [2002] 2 IR 428 per Keane C.J. at p. 446:
"Parties to litigation in our courts, whether it is civil or criminal, are entitled as a matter of constitutional right to fair procedures. They are also entitled, again as a matter of constitutional right, to access to the courts and it is a necessary corollary of that right that they may conduct litigation with or without legal representation as they choose. Save in special circumstances which do not arise in these proceedings, the court has no function in relation to the representation of parties appearing before them…"
Therefore:
(i) it follows from the decision of the Supreme Court that a corollary of the right of access to the courts is the right to retain counsel for the purpose of advice or representation.
(ii) such right must exist in relation to any process which will as a matter of possibility, probability or likelihood result in court proceedings being initiated or judgment being made which could lead to court proceedings.
3. The Court of Human Rights has recognised the right of access to a solicitor for a prisoner considering the possibility of initiating defamation proceedings against a member of the prison staff; see Golder v. United Kingdom (1979-1980) 1 E.H.R.R. 524. The UK government had argued before the European Court of Human Rights (E.C.H.R.) that the courts would still have heard any claim if it had been instituted, so that the prison rules could not properly be considered an interference with the right of access to the courts. The E.C.H.R. did not accept this argument and held at p.531 that:
"Hindrance in fact can contravene the Convention just like a legal impediment";
and further:
"… hindering the effective exercise of a right may amount to a breach of that right even if the hindrance is of a temporary character".
4. That insofar as the respondent may rely on s. 7 of the Act which recognises a right to legal advice, such an argument would fail to recognise that the right to retain solicitor and counsel and be represented in relation to a prosecution of a civil claim is not a matter which can or should be postponed.
5. While the Board might contend that it had the interests of the claimant at heart, such a contention would be gainsaid on the facts of this case by the difficulties which were presented towards the registration of the claim in the absence of a medical consultant's report.
6. The right to represent a client's interest in a civil dispute is not a matter which a body such as the Board can arrogate to itself for the purpose of displacing a constitutional right or a right derived pursuant to the Convention on Human Rights.
7. Insofar as there is a power to limit constitutionally a right such as that of access to legal advice or access to the courts, such limitation is not, on the facts of the instant case, proportionate. Nor was it introduced and effected in a manner which is constitutionally sustainable. There is no other method open to the legislature to diminish or restrict the exercise of a constitutional right.
8. On the facts of the instant case there is no evidence that any interference was introduced or effected in a legal and constitutional manner by express or clear provision; nor that the practice pursued a legitimate aim in such a manner as to accord with the reasonable relationship necessary for proportionality between the means employed to limit the right and the aims sought to be achieved thereby.
9. While the Board is empowered under s. 46 of the Act to make rules concerning the procedure to be followed regarding the making of applications, assessments and matters consequential on or incidental to the foregoing, there is no express right or jurisdiction or vires to alter, diminish, or interfere with, a right of a constitutional or statutory or common law character. It has been well recognised in a number of authorities that Article 15.2.1o of the Constitution reserves to the legislature of the right to make laws. The courts have on several occasions discussed the meaning of this provision, and it has been consistently found that in relation to matters of principle only the legislature can make laws. The significance of the constitutional principle enunciated in Article 15.2.1 of the Constitution as interpreted by the courts requires that any alterations, changes or innovations in matters of legal principle must be affected through primary legislation.
10. The policy or practice adopted by the Board is ultra vires the enabling provision of the Act.
The Respondent's Submissions
On behalf of the respondent, Mr Eoin Fitzsimons S.C. in a carefully reasoned argument submitted as follows:
1. The impugned policy or practice of the Board does not in anyway interfere with the applicant's right of access to the courts; it is the Act which has regulated the right of persons to access the courts in respect of claims falling within its scope. The Board is not a court and does not conduct court proceedings.
2. There is no right of legal representation in respect of claims for assessment under the Act. This is clear, it is submitted, from s. 7(2) of the Act.
3. There is no evidence that the applicant has been inhibited in any way in his right to obtain legal advice.
4. The Board has in fact corresponded with the applicant's solicitors in response to their correspondence.
5. Part 2 of the Act contains a number of mandatory assessment procedures in respect of certain civil actions involving claims for damages for personal injuries. It is clearly envisaged under s. 21(1) that the assessors shall make their assessments by reference to the information, records or other documents required or authorised by this Act to be furnished to them; "no hearing shall be conducted by them for that purpose" (emphasis added).
6. Procedures are laid down for the obtaining of medical reports, other documentation and relevant information. The Act envisages that the mandatory procedure laid down shall be conducted in an expeditious fashion.
7. The Board is an administrative body established under the Act to assess the value of claims. The assessment is not admissible in evidence in any proceedings (see s. 51 of the Act). The Board makes no finding on any issue of liability between the parties nor does it make a determination on liability. Where an assessment is made by the Board the respondent has no liability to pay the amount assessed unless it accepts, or is deemed to have accepted the assessment. Similarly, the claimant has no entitlement to receive the amount of the assessment if it is not accepted or deemed to have been accepted by the respondent. It is reiterated that the Board is not a court and does not conduct court proceedings. Nor does it conduct hearings or take evidence from witnesses. There is no cross-examination of witnesses. The Board does not hear submissions from the parties. Its procedures are such that the Board does not allow scope for the good name of a claimant (or a respondent) to be impugned. Assessments made by the Board are not binding and may be rejected by the claimant and the respondent. As such, the rights recognised in In re Haughey [1974] I.R. are inapplicable.
8. The claim made by the applicant as supported by the Law Society is based on the premise that the claimants are entitled to give instructions to the Board as to how it should conduct its business. The applicant contends that the Board must comply with the terms of the authorisation of 16th August, 2004, notwithstanding that the Board was not a party to that document. Neither the applicant nor the Law Society refer to any statutory provision, or indeed any case, to support the far-reaching proposition that by virtue of a contract or arrangement entered into between a solicitor and a client, a statutory body such a Board can be directed or compelled to conduct its business in a manner agreed between the solicitor and client. It is for the Board to decide how it should conduct its business and as to how it should communicate with claimants.
9. The Board is entitled as a matter of discretion to decline to communicate exclusively with the applicant's solicitor, notwithstanding the terms of the authorisation of 16th August 2004. The Board's policy or practice of communicating directly with claimants and copying such correspondence to claimant's solicitors, if so requested, is clearly within the scope of the Board's discretionary powers.
10. If the Oireachtas had intended that a claimant was to have a right to legal representation (in the sense of requiring the Board to deal directly and exclusively with the claimant's legal representative), as distinct from a right to obtain legal advice, this would have been expressly provided for in s. 7 of the Act. No such provision was made. The practice or policy of the Board in corresponding directly with the claimants and in copying such correspondence to their solicitors if so required is entirely consistent with (and indeed may be said to assist) the right of a claimant to obtain legal advice in relation to an assessment under the Act. Section 7(2) of the Act expressly provides that the Board is not required to apply procedures which would be required if the claim was the subject of proceedings. There is a clear distinction between the procedures of the Board and those which might be followed by a court.
11. There is ample provision made in s. 29 of the Act for the Board to exercise a discretion regarding vulnerable claimants and mandating the Board to advise the claimant or respondent in appropriate circumstances as to the desirability of obtaining legal advice, to explain to the claimant or respondent the legal consequences of a failure to complete properly the step concerned, and to provide such assistance as the Board considers reasonable to the claimant in completing the steps concerned, or, as the case may be, in retaking that step in a proper manner.
12. There is no suggestion that the applicant is a person falling within the scope of s. 29(1), which deals with vulnerable persons.
13. In the absence of any specific provision, it is a necessary inference that the Oireachtas did not intend that the Board should deal with non-vulnerable persons (such as the applicant) solely through a solicitor.
14. No part of the Act refers to the question of legal fees, expenses or legal representation. This omission must be deliberate and supports the Board's view that its policy or practice of communicating with claimants is consistent with its powers under the Act.
15. The purpose of the Act is clearly set out in the long title, the terms of which reflect the public policy underpinning the Act, to preclude unnecessary legal proceedings (and consequently to reduce unnecessarily incurred costs). The statement of legislative intent contained in the long title is consistent only with the desire of the Oireachtas not to confer a right of legal representation to a claimant in his or her dealings with the Board.
16. The entire basis of the applicant's argument is that his constitutional right of access to the courts has been infringed. This is based on a false premise, namely, that the proceedings before the Board are a form of litigation. The authorities relied on by the applicant in support of his claim that his constitutional rights have been infringed are all cases involving court proceedings (see Murphy v. Green [1992] 2 I.R. 566; A.S. v. R.B. [2002] 2 IR 428). The proceedings before the Board are not court proceedings nor is the court engaged in the administration of justice for the purposes of Article 34 of the Constitution.
17. No authority is cited for the proposition advanced by the applicant that the right to retain and be represented by counsel must exist in relation to any process which will come as a matter of possibility, probability or likelihood result in court proceedings being initiated or a judgment being made which could lead to court proceedings. A distinction is drawn between this case and cases such as In re Haughey [1971] I.R. 217 and more recently Maguire v. Ardagh [2002] 1 IR 385.
18. Although the applicant claims that his constitutional right of access to the court under the Constitution has been infringed, he does not challenge the constitutionality of the Act. It is the Act which requires the applicant to proceed initially to the Board for an assessment before being in a position to commence proceedings in respect of his personal injury claim. It is the Act therefore that regulates the applicant's access to the court in respect of his claim; yet the applicant does not challenge the constitutionality of the Act which, of course, enjoys a presumption of constitutionality.
19. The applicant has not established a sufficient evidential basis to justify locus standi (see Cahill v. Sutton [1980] I.R. 269 p. 283 to 286). Thus at its foundation the applicant's case is flawed. Whatever may have been the policy adopted by the Board in its initial correspondence of 19th August, 2004, it had demonstrated flexibility thereafter and was furnishing the applicant's solicitor with copies of correspondence as requested.
20. There had been no want of bona fides in the correspondence. The applicant's solicitor had been given the option of availing of two courses of action in the letter of 17th September, 2004. Neither of these had been addressed. The offer or proposals put forward in the letter were neither accepted nor rejected. Instead the applicant's solicitor reverted by way of correspondence on 20th September, 2004, to the effect of acknowledging that the applicant's claim was being registered.
21. The authorities relied on by the applicant in relation to the European Convention on Human Rights are nihil ad rem. Golder v. United Kingdom [1979-80] 1 E.H.R.R. 524 and Airey v. Ireland (1979-80) 2 E.H.R.R. 305 both relate to rights of access to the courts, and the latter to the right to civil legal aid.
23. Equally the principle of equality of arms, such as recognised by the European Court of Human Rights in Neumeister v. Austria (1979-80) 1 E.H.R.R. 91 is irrelevant and can have no application in the context of an assessment procedure carried out by the Board under the Act where an order for the assessment to take place the respondent must agree (or be deemed to have agreed) that it take place. The concept of equality of arms has no place in the assessment procedure operated by the Board under the Act.
24. Contrary to the applicant's submissions, neither the claimant nor the respondent have any right to be "represented" before the Board. Both are treated in the same way and have the same rights. Where one of the parties involved in an assessment before the Board is in a vulnerable position, the Board is obliged to assist that party in the manner provided for in s. 29 of the Act.
Submissions of the amicus curiae:
On behalf of the Law Society as amicus curiae Mr. Dermot Gleeson S.C. (whose arguments insofar as applicable to his case, Mr. Whelehan S.C. adopted) made the following submissions:
1. The importance of the solicitor/client relationship is well recognised in many areas of law. One such area is in relation to legal professional privilege. As explained by Jessel M.R. in Anderson v. The Bank of British Columbia (1876) 2 Ch D 644 at 649, the basis of the privilege is:-
"that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and that it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman with whom he consults with a view to the prosecution of his claim or the substantiating his defence against the claims of others."
This quotation was approved by Finlay C.J. in Smurfit Paribas Bank Limited v. A.A.B. Export Finance Limited [1990] 1 I.R. 469 at p. 476, in the context of privilege. In a number of authorities courts in this jurisdiction and elsewhere have specifically recognised legal professional privilege as more than a mere rule of evidence but a principle with a substantive content and a constitutional underpinning; see Solotosky v. Canada [1980] 1 S.C.R. 821; Smith v. Jones, Cory J. [1999] 1 S.C.R. 455 at p. 474 to 475; and in this jurisdiction Miley v. Flood [2001] 2 IR 50 at p. 65 to 66.
2. The initial authorisation completed by the applicant did not come within the terms of the rules promulgated by the Board under s. 46(1). The Oireachtas would have been obliged to have employed much clearer language if it had intended to say that where a client wished to be represented by a solicitor the form of engagement must be in the precise form as stipulated by the Board in its rules. Such an interpretation is, in any event, negatived by the provisions of s. 7(1) of the 2003 Act, which appertains to legal advice. Even more fundamentally, it is submitted, the rules so promulgated do not address the issue of authorisation or correspondence and are entirely silent in these points.
3. The practice of refusing to honour the authorisation signed by the applicant, the Law Society submitted, amounted to a refusal to honour the terms of the solicitor/client engagement. There are very good reasons why a client in the position of the applicant might wish to consult a solicitor. First, personal injuries litigation is generally complex. Certain categories of client, perhaps those with low educational attainment or poor literacy skills, would rely upon and wish to have a solicitor's advice and assistance in a matter which is unfamiliar to them and where they might think that the claims process is not as straightforward as the respondent tends to suggest. Secondly, issues of privacy or sensitivity may arise, such as the client not wishing to have correspondence come directly to his home. There may exist issues of convenience, such as clients not wishing to be bothered with correspondence or preferring that all correspondence be sent directly to a solicitor who would deal directly with the Board. This may arise where the client was, for example, abroad.
4. In what way would the Board be prejudiced if it were to communicate exclusively with the claimant's solicitor if this is what the claimant for his/her own reason so requests? The ostensible reason for the policy is that the Board wishes to ensure the claimant is kept fully informed (with the implication that solicitors routinely fail in this obligation). Yet, it is submitted, there must be a suspicion that the Board would prefer claimants to be unrepresented. Given that claimants will not be permitted to recover these legal costs, representation would not in anyway undermine a key objective of the Act of 2003, namely, lower transaction costs associated with the personal injuries claims. Surely the Board would wish to ensure that claimants formulate their cases to their maximum advantage.
5. Contrary to the impression given by the Board, the claims procedure is not an uncomplicated process. Once the applicant to the Board has sent the letter before action and obtained a medical report, he/she must then send to the Board nine categories of documents as set out in page 3 of the society's guidelines. Only if these are considered by the Board to be correct and in order will the Board then assign an application number, write confirming the application is complete and thereby register it, i.e. treat it as an application under s. 11 of the 2003 Act. Only then is it thereby effective to stop the Statute of Limitations. Once the application is registered, the Board may then require other information from the applicant under s. 23. It may also require him/her to attend for medical examination (s.24); and most fundamentally if the Board makes an assessment it would wish to ensure that the applicant learns of the assessment and can make a decision as to whether to accept it. If the Board were pursuing a policy which appears to prefer that claimants would remain unrepresented at this stage, it suggests an underlying desire that claimants will more readily accept Board recommendations without demur and not subsequently institute proceedings in the courts. If this were so, it is submitted that this would be an unlawful policy objective on the part of the Board and one not warranted or authorised by the terms of the Act of 2003.
6. The letter from the Board confirming that the claim has been registered is a vitally important document. That significance may not be recognised by an unrepresented person.
7. A party may be abroad or away on vacation, or may have taken up employment outside the State. Such an eventuality would not create problems if a solicitor were retained. Many claimants, irrespective of educational standards, have difficulty in understanding the significance of legal correspondence. This may arise where time is running on the Statute of Limitations. There may be difficulties derived from low educational attainment or poor literacy skills.
8. Additionally, claimants are disadvantaged in considering the response of other professionals such as medical practitioners, engineers and so forth. The principle of "equality of arms" suggests that a claimant should have the same right of access to professional advice as to match the professional advice available to defendants, insurers and to the Board itself.
9. It is unclear as to how the Board proposes to insist on the same "direct communication" policy where the defendant is a local authority or major corporation which may have in-house legal advisors.
10. Moreover, there would appear to be already a potential practice of direct communication between the Board and insurers. But insurers, are not properly speaking, respondent. They act under an insurance policy which contains a subrogation clause. The Board therefore recognises a right of subrogation in a context of respondent but fails to give such recognition in the context of claimants.
11. It is further submitted that the provisions of s. 29 may give rise to difficulty in that there is no a priori method of identifying vulnerable claimants even if they can be identified. This by necessity is after the first engagement with the Board. It is to be recalled that the policy of direct correspondence extends also to claims coming within the 's. 29 category' even after such vulnerable claimants have been identified.
12. The insistence by the Board of adhering to the policy of corresponding directly with the claimant is obstructive and adds unnecessarily to costs. In practice the claimant will be obliged to contact his solicitor on receipt of correspondence from the Board. Further, costs will be incurred by virtue of a succession of contacts which will inevitably occur.
13. An additional difficulty will be that, as a by-product of the policy, solicitors will no longer be able to give undertakings on behalf of clients to financial institutions if the cheque is ultimately going to be paid to the client directly. A direct payment to the client is a logical consequence of the Board's refusing to correspond directly with the solicitor. Where a client is suffering an ongoing loss of earnings by reason of the accident the subject matter of the claim, this policy may give rise to unnecessary hardship as the client may well be unable to borrow funds on the strength of the proceedings. Such a policy may also make solicitors reluctant to incur essential expenditure such as in respect of medical reports on behalf of the client.
14. Significant difficulties may arise in other categories of special cases where the direct communication policy is apt to cause practical difficulties such as in the case of minor claimants with separating or separated parents or similar categories of cases where fatal claims are concerned. In cases under the Civil Liability Acts, 1961 to 1996, only one set of proceedings may be maintained in fatal cases. There may be many potential claimants and such cases tend by their nature to require a particular level of sensitivity. In the absence of a solicitor agreed by the family in its broadest sense to handle a case in their respective best interests; difficulty may inevitably arise where only one of the potential claimants is in receipt of the correspondence.
15. As regards the policy adopted by the Board it is submitted that the policy as set out has no legal basis in the Act of 2003, or elsewhere. To state that claimants are constitutionally entitled to have access to legal advice and to be legally represented is to state the obvious. If the Oireachtas had intended to abridge, curtail or circumscribe this constitutional right in any way, clear statutory language to this effect would have been required. Not only is there nothing in the Act of 2003 to this effect, but the very language of s. 7 suggests the contrary.
16. Moreover, even if the Board is entitled to have a policy of dealing directly with clients, it is axiomatic that it cannot exercise its discretionary powers in an unreasonable fashion. Nor can extraneous policy factors, (e.g. the conviction that solicitors are "unnecessary" to the process) justify attempts (whether direct or indirect) to merely tolerate the presence of solicitors, still less attempts to frustrate solicitors as they try to ensure that their clients' interests are protected, or attempts to exclude lawyers from the process entirely. If this could be done by policy it would amount de facto to an unconstitutional amendment of the law through administrative action, (see the comments of Keane C.J. in Dunne v. Donohoe [2002] 2 IR 533 at 543). In any event the policy sits uneasily with the objective set out in s. 7 (1) of the 2003 Act and the express statutory objective – reducing claim costs and transaction costs - is not jeopardised since these additional legal costs are not recoverable in the process of the Board.
17. Accordingly, therefore, even if the Board is entitled to have a policy, such policy must yield to the clearly expressed wishes of the client in any given case and cannot be rigidly pursued at the expense of his clearly expressed wishes. The "direct communication" policy and practice does not do so. Under the terms of the solicitor's engagement with his client it may well cause a myriad of practical difficulties.
18. The policy of the Board is unlawful. In particular, counsel relied on the provisions of s. 29 of the Act. Here there is an acknowledgment that there are categories of persons who need not just legal advice but legal representation in the process. This does not mean that the Board can arrogate to itself and to no other person the entitlement to select the category of persons who may be represented and to interfere with the autonomy of any citizen to make that election for himself or herself.
19. It is accepted that the Board, if it operates successfully, may bring to a claimant a number of benefits. These include the obtaining of compensation at an early date and also achieving damages in a situation where there is no risk as to costs. These two points alone, counsel submits, are sufficient to justify the proposition that the process is not in any way inconsequential.
20. Moreover, it is submitted, the process of obtaining medical reports and other relevant documentation may not by any means be a simple process. It may involve the obtaining of medical reports from practitioners sometimes loathe to furnish them. It may require the judgments of a significant or substantial nature as to the nature of documentation that may be pertinent to the claim.
21. Whether or not the process engaged in by the Board constitutes the administration of justice there is, nonetheless, an entitlement to a constitutional right to fair procedures of an even handed nature. This entitlement of fair procedures extends well beyond the administration of justice and into various categories of interaction with state bodies including a state body which may entitle a claimant to early compensation without risk of exposure to an adverse award of costs. Counsel relied on the well known dictum of Ó Dalaigh C.J. in In re Haughey [1971] I.R. 217 at p. 264:-
"The provisions of Article 38.1 of the Constitution apply only to trials of criminal charges in accordance with Article 38; but in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights."
22. Well-established authorities demonstrate that the level of intensity or particularity of the fair proceedings varies according to the consequences. The benefit which may accrue to a successful claimant before the Board is such as would justify the observance of fair procedures which includes legal representation in the manner urged by the applicant.
23. At the very core of this judicial review application is one simple issue. It is this - is the general policy of the Board in refusing to deal with solicitors in respect of applications to the Board for assessment consistent with the Constitution? The Law Society contended that such a policy is unlawful for want of express statutory authority. Such authority cannot be implied and it is offensive to the constitutional rights of claimants. Moreover, there would appear to be no express legal basis in the Act for the adoption of such a policy. As a matter of necessity therefore the respondent must justify its policy by stating that it is within its discretion and within the confines of the Act, and that it is either necessitated or consequential or incidental to the operation of the Board as set out in s. 46 of the Act. It is contended on behalf of the Law Society that there is no statutory authority for the policy of a general nature (albeit now a more flexible one) adopted by the Board. It is further submitted that to ignore a perfectly clear letter of authority from a solicitor on the basis that the authority is not in the form preferred is unjustified.
24. It is conceded by counsel for the Law Society and the applicant that under
s. 54(2) of the Act the Board has all such powers that are necessary or expedient for, or incidental to the performance of its function under the Act. But counsel referred to Howard v. The Commissioners of Public Works [1994] 1 I.R. 101, where Costello J., as he then was, stated:-
"It has long been established as a general principle of the construction of the powers of statutory corporations that whatever may be regarded as incidental to, or consequential upon those things which legislature has authorised, ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires. (Attorney General v. Great Eastern Railway Company (1880) 5 App Cas 473, at 478)."
Further reliance is placed on the dictum of Hamilton C.J. in Keane v. An Bord Pleanála [1997] 1 I.R. 184 as follows at p.121:-
"The powers of the Commissioners (of Irish Lights) being a body created by statute, are limited by the statute which created it and extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of incorporation or may fairly be regarded as incidental to or consequential upon those things which the legislature has authorised."
The essential case made by the applicant and the Law Society therefore is that there would appear to be no basis for the contention that the policy adopted by the respondent in this case is incidental or consequential.
25. Nor is there any provision in the Act to support the proposition that the Board is in a position to dictate the terms upon which communications should take place between the Board itself and claimants.
It cannot be inferred from the scheme of the Act that the Board is entitled to prescribe a mode of communication, or that such prescription should form part of a general policy for certain categories of claimants.
26. Essentially it is contended on behalf of the Law Society that the policy adopted by the respondent is not only unwarranted under the Act but also unreasonable. This is so (it is argued) because the legislature does not authorise a creature of statute to behave in an unreasonable fashion.
27. Moreover, where is there specific provision in this Act, as distinct from those governing all other statutory bodies which would allow the Board to adopt a policy of the type which it seeks to assert in this case? If such a policy is unreasonable it is also, ipso facto, ultra vires. Given the importance of the rights of the citizen (whether or not the issue involves the administration of justice) right of representation in the manner contended for by the applicant must prevail as a matter of reasonableness over a practice or policy prescribed by the Board.
28. The following illustration may be particularly à propos. In the event of a collision between two educationally disadvantaged and elderly gentlemen of no great educational attainments or administrative ability, why should it be that the Board should prescribe that correspondence with the claimant must be dealt with by himself personally and that by the respondent may be dealt with on foot of a policy of subrogation by an insurance company with highly experienced claims personnel? To deny one side the use of a professional agent and to invite the other side to employ such a person is an unconstitutional practice. Moreover, it would represent a departure by the Board without any authority from a central tenet of public administration; which is that parties to a contest such as this, insofar as the State can ensure, be treated equally. This submission holds true whether or not the process is judicial or administrative.
29. In Kiely v. Minister of Social Welfare [1977] 2 I.R. 267 involved an attempt to permit cross-examination to one side and not the other. Such a discrimination in that case is lesser in nature than that which exists and subtends the policy presently being adopted by the Board.
It is now necessary for the Court to address the issues and submissions made by counsel for the parties.
A preliminary question is that of locus standi. The matters in issue before the Board are ones of substance. They relate to the applicant's cause of action in tort. They are connected (albeit indirectly) with his constitutional right of access to the courts. Against this background, the Board has chosen to prescribe both the form of authority and the manner in which it will communicate with claimants and/or their lawyers. These procedures have identifiable consequences for the applicant, in that they undoubtedly impinge on the solicitor/client relationship and restrict the applicant's ability to delegate matters to his solicitor. Clearly, these factors taken together provide ample basis for finding that the applicant has locus standi.
For the purposes of these proceedings the issue of the constitutionality of the Act, or any part thereof, does not fall to be decided. Instead, the primary question arising in the first instance is that of vires.
Before going on to decide the question of vires, I wish to refer to one or two illustrations from cases referred to and cited in argument wherein the constitutional right to legal representation was raised which may be of some assistance in the determination of the issues before this Court albeit that those cases appertain to adjudicative inquiries and the right to good name guaranteed under the Constitution.
As is well known, in Maguire v. Ardagh [2002] 1 IR 385 an attempt was made by a parliamentary committee to limit the manner in which legal advisors would be allowed to proceed. While it was not necessarily the case that the committee intended to operate its proposed rules as to cross-examination in an absolutely rigid fashion, nevertheless there were several elements of those rules which the Supreme Court found objectionable, in so far as they would or could unnecessarily hamper the right of one witness to cross-examine another. Particular aspects of the rules which raised concern were the postponement of cross-examination until the conclusion of the evidence of all the witnesses, and the time-frame from within which it was envisaged the cross-examination could take place (which was so limited that for practical purposes the right was greatly diluted).
An issue of a somewhat kindred nature arose in the case entitled Re Commission to Inquire into Child Abuse [2002] 3 I.R. 459, a decision of Mr. Justice Kelly.
There, the Commission had sought to impose a restriction upon the number of lawyers who might act by being present during a particularly important part of a case. The applicant argued in that case that the direction in suit was solely concerned with the issue of representation at the evidentiary hearings and was not concerned with the number of counsel retained generally on the team. Kelly J. stated at p.476 that such a ruling nonetheless constituted "interference with the extent to which the team selected by the client and the solicitor advising as to the composition of that team is permitted to act on behalf of the client". He stated:-
"The ruling bites, in practical terms, at the point which is the most crucial in the whole investigation process being carried out by the applicant, namely, where accuser and accused face each other and where testimony is contested by cross-examination. The ruling in effect supplants the views of the client, as informed by the opinions tendered to the client by the solicitor and counsel retained, as to how best to defend the case."
He explained:-
"…that, if the applicant could ever be authorised to make a ruling of the type which it did (and I am not to be taken as saying that it could) it would require clear and express statutory authority so to do. … No such authority exists in the present case."
He referred to s. 20(a)(1) of the Act as amended, which states:-
"[T]he investigation committee may allow a person appearing before it to be represented by counsel or solicitor or otherwise."
Having held that this provision could not be relied upon to justify the ruling, he continued at p.477:-
"The second possible statutory basis upon which the ruling might be justified is s. 12(2) of the Act which provides:-
'The investigation committee shall have all such powers as are necessary or expedient for the performance of its functions.'"
Having cited the quotation from Keane v. An Bord Pleanála [1997] 1 I.R. 184, Hamilton C.J., to which reference was made earlier, Kelly J. went on to state:-
"Section 12(2) seems to me to do no more than state in express terms the implied powers which exist. Whether I am correct in that view or not s. 12(2) does not, in my opinion, give express entitlement to make the direction in suit."
He continued:-
"The only other [i.e. third] statutory basis that could be relied upon arises from s. 4(6) and the obligation imposed on the applicant to enable the evidence in question to be given in an atmosphere that is as sympathetic to, and as understanding of complainants as is compatible with the rights of others and the requirements of justice. I do not think that this can be relied upon as a basis for justifying the direction in suit. None of the parties to this litigation were in a position to point to any other case either in this jurisdiction or in the common law world where a restriction of the type in suit was sought to be imposed. It seems to me that, if the applicant were to be given such an unusual and far reaching power of this kind, express legislative authority would be required and could not be implied even from what is contained in
s. 4(6)."
He continued further (at p.478 to 479):-
"I do not think that, in the absence of express words, the provisions of
s. 4(6) can be interpreted of authorising what is such a novel and far- reaching power of the type which is sought to be exercised here by that discretion. … Lest I am wrong in coming to the conclusion which I have that there is no jurisdiction on the wording of the Act to give a direction of the type in suit, I should go on to consider whether (on the basis that there could be and is such a power) it is correctly exercised by the applicant. … It is a truism that justice must not only be done but be seen to be done. … Whilst I have no doubt that, in the present case, the applicant acted on the very best of motives, in my view, the making of the direction in question recalibrated the scales in such a way as to tilt it against what justice requires, namely, that parties be free prudently and reasonably to decide on and be permitted to have present, at all relevant times, the solicitors and counsel of their choice in whatever number is required to prosecute or defend claims before the applicant to best effect."
Clearly there are distinguishing features between the cases cited above and the case in issue here. The most fundamental of these distinctions is that the former cases concern adjudicative inquiries (to use a phrase coined by Hardiman J. in Maguire v. Ardagh) and the right to a good name. However, as I will explain later in this judgment, it seems to me that there are similarities which justify the adoption of a similar approach in principle and by analogy. The above-cited cases clearly emphasise the importance of legal representation even outside the sphere of the administration of justice proper, and the need for parties to be free to decide, prudently and reasonably, on the nature and extent of their legal representation.
As mentioned earlier this Court must prescind from making any finding on the facts of this case regarding the constitutionality or otherwise of any provision of the Act. Therefore, I propose to address now the question whether the policy or practice of the Board was ultra vires the Act. In interpreting the Act I will of course apply the presumption of constitutionality. Furthermore, I am bearing in mind the court's obligations under section 2 of the European Convention on Human Rights Act 2003.
Ultimately it seems that the vires issue comes down to two simple questions. The first of these is as to whether there is a specific power set out in the Act to adopt the policy at issue. I consider that there is not. The second question is whether the policy is necessary, expedient or incidental within the meaning of s.54 of the Act, or any other section.
In his closing submission on behalf of the applicant, counsel submitted that this question as to the incidental or expedient nature of the policy in turn reduces itself to two sub-questions, the first is 'how' and the second is 'why'. How is it expedient? What object has it achieved?
Counsel for the respondent, in an attempt to explain the reasoning behind its practice, suggested that it (the Board) deals with what are referred to as "easy claims". It has not been suggested, however, that the Board finds it easier to deal with claimants than solicitors. Nor is it suggested that claimants put forward their claim more succinctly than their solicitors. Nor is it suggested that claimants have a better understanding than their solicitors of how to frame a claim or how to put together a loss of earnings claim or to obtain a medical report or in the identification of wrongdoers.
Counsel on behalf of the respondent also submitted that the policy (of the Board) saves costs for all involved, because solicitors acting for applicants will not be able to charge clients on the same basis as they would recover costs involved on a 'party and party' basis. Counsel submitted that this is a policy or practice contemplated by the 2003 Act, even if it is not actually recited in the Act.
However, in view of the statutory provisions contained in the Act regarding costs and expenses, the question of legal costs is not affected one way or the other by the policy adopted by the Board. The Board is not empowered to award legal costs and expenses. Any legal costs incurred by a claimant, therefore, can only be deducted from the award made by the Board to the claimant.
Counsel for the respondent also submitted that, while s. 7 of the Act recognises the right to avail of legal advice, the Act does not go further. Counsel suggested that the right to legal advice does not include a right to appoint a person to represent the client and thereby bind a third party; in this context, it was submitted, it does not include the right to legal representation at all stages of interaction between the claimant and the Board. Put most succinctly, counsel for the respondent stated:
"my submission supports by necessary inference the proposition that the Oireachtas fully intended that lawyers, bar the area of legal advice, should be excluded from dealings between claimant and the Board."
Were it the intention that lawyers should be excluded from dealings between claimant and the Board the Act might have said so. Such a provision might have been contained in s. 7 of the Act. No such provision, however, can be found there or in any other section or subsection of the Act itself. Instead it is a practice which has been initiated by the Board itself. In such circumstances it is for the Board to demonstrate how the approach comes within the Act. It is insufficient for the Board simply to assert, without more, that such a policy was "expedient". It may even be that, as suggested by counsel for the applicant, the policy adopted by the Board is "actually inexpedient". The Board has not succeeded in demonstrating how its interference with the lawyer/client relationship is necessary, expedient or incidental to its functions.
In reaching this conclusion, I have had regard to several significant features of the current case, some of which I have mentioned already. These are inter alia:-
(a) The fact that the matters in issue before the Board are truly ones of substance. They relate to the applicant's property right in his cause of action in tort. They are connected (albeit indirectly) with his constitutional right of access to the courts. These are matters of no small moment.
(b) The arrogation by the Board to itself of the power to prescribe
(i) the form of authority, and
(ii) the manner in which communication shall take place between itself and claimants and/or their solicitors.
This general practice albeit flexible in some aspects is significantly inflexible insofar as it relates to the applicant.
(c) The absence of an express authority contained within the terms of the
Act permitting of the adoption of such an approach. The approach imposes conditions which are not prescribed by any primary or secondary legislation.
(d) The specific recognition within the terms of the Act of the rights to legal advice. This if anything highlights the potentially serious legal consequences of the entire procedure for a claimant.
(e) The gravity of the consequences of the procedures and their significance for the claimant. This is underscored by the fact that in certain circumstances, such as in respect of vulnerable claimants (s. 29) and withdrawal of applications (s. 47), the issues arising are of such seriousness that the Act recognises the desirability of claimants obtaining legal advice before further steps are taken.
The arguments and submissions in this case touched upon and raised but did not resolve all the issues of fundamental importance regarding the interpretation of the Act, the true nature of the proceedings before the Board, and the procedures which it adopts. Because of my conclusion on the vires issue, not all of those issues require to be resolved here for the purpose of these proceedings. However, I wish to make some further, albeit obiter, comments at this juncture. My conclusion as to the ultra vires nature of the practice of the Board is of greater concern in light of the interests and/or rights which are at stake.
In my view there is also implicit in this case the fundamental issue of the right to retain legal representation in the context of various contentious matters. This right has been recognised not only in court proceedings, but in a range of other fora, from quasi-judicial hearings to statutory bodies even of a strictly administrative type where the matters in issue are of serious import.
The right to representation in criminal cases has been recognised in our courts. (See Healy v. Donoghue [1976] I.R. 325) Such a right is an aspect of the trial of offences in due course of law. The constitutional right to retain legal representation in civil court proceedings is one which is equally well recognised as an aspect of fair procedures, access to the courts and the administration of justice under Article 34 of the Constitution. Likewise in the context of fact-finding tribunals; see Re Haughey [1971] I.R. 217.
But the right to legal representation also has application in administrative procedures when the matters in issue are of serious consequence to the parties or impinge upon their rights. Assessment by a statutory body for compensation in respect of personal injury comes within this category. Indeed, it is of such importance that prior to, and even after, the inception of the Board, such right may be determined by a court of law. Compensation for personal injuries may involve substantial sums of money, and the question of entitlement thereto may be of vital significance to a claimant and his or her family. In such circumstances, a contention that the issues before the Board are inconsequential is surely difficult to sustain.
Reverting to a brief examination and identification of the procedures for pursuing claims before the Board. In many ways, such steps are analogous to the steps necessary prior to the initiation of a claim in court proceedings. Counsel for the Law Society identified nine categories of documents which may have to be submitted. Significant judgment is involved in identifying the materiality of such categories of document. Inevitable difficulties arise regarding the obtaining and presentation of such information. The consequences of failure in compliance may be fatal to the claimant's case. It may debar the claimant from pursuing his claim before the courts. The pivotal importance of the proper registration of the claim within the time is self-evident. It was illustrated in this case.
At a number of points the Act provides for the claimant obtaining legal advice. Why is this so? Clearly, it is because such steps and such decisions may have serious legal consequences for a claimant. The consequence of successfully pursuing a claim before the Board is therefore by no means insignificant. The claimant may obtain compensation at an early date and such compensation is achieved without risk of an adverse award of costs.
Thus, even if I accept that the procedures before the Board are administrative in nature, I am satisfied that by reason of their complexity, importance and potential consequences, they are such as to justify, not only access to legal advice, but also, such rights to legal representation as have been identified by the applicant in this case. Nor are such rights rendered irrelevant by the fact that the Board does not conduct hearings.
The right to legal representation is not confined to court appearances. For one thing, it inheres in each of the steps which are necessary, ancillary and preliminary to the bringing of court proceedings. In the words of Sutherland J. in Powell v. Alabama 287 U.S. 45 (1932), a client has a right "the guiding hand of counsel at every step in the proceedings against him" (para. 69).
Legal representation involves conduct as well as advocacy. It involves the employment of skill and judgment in the obtaining of necessary information and instructions. It necessitates judgement in the utilisation of such information in the pursuance of the client's interests.
This explains the decision in the U.S. case of Mosley et al v. St. Louis South Western Railway, 634 F. 2d. 942 (1981) (U.S. Appeal Courts), wherein the exclusion of counsel by an Equal Employment Opportunity Commissioner from a pre-trial resolution hearing, although present and available, was held to nullify a settlement:
"Inasmuch as a valid settlement or waiver has an effect equal to the entry of a formal judgment, the applicability of these principles [right to counsel] to the administrative proceedings in this case cannot be gainsaid" (per Johnson J.)
The court went on to hold that "[t]he right of access to retained counsel is one of constitutional dimensions and should be freely exercised without impingement".
The right to legal representation and the lawyer/client relationship exist in the common good. Most significantly they help to guarantee equality of arms in litigation and various types of adversarial processes and the maintenance of fairness between the strong and the weak.
Decision
For the purposes of the instant proceedings, as already indicated, the issues to be determined were conveniently identified by the parties at the outset of the case.
The first question is whether the respondent, in declining to accept or act upon the authorisation dated 16th August, 2004, (described as a "confirmation and authority by client") by corresponding directly with the applicant (and copying such correspondence to his solicitors) is acting in breach of s. 7 of the Personal Injuries Assessment Board Act 2003. In this regard, I hold that the impugned conduct is without warrant under that or any section of the Act.
The next question is whether the respondent, in so acting, is acting in breach of the applicant's constitutional rights. In light of my decision on the question of vires, it is unnecessary for me to advance to a consideration of such constitutional issues. Nor do I consider it necessary to deal with the other issues raised in the issue paper.
Having heard submissions the declarations will take the following form
1. That the respondent in declining to accept or act upon the authorisation dated 16th August, 2004 (described as "a confirmation and authority by client"), by corresponding directly with the applicant (and copying such correspondence to his solicitors) is acting in breach of s. 7 of the Personal Injuries Assessment Board 2003, or without authority under any other provision of the Act.
2. Having regard to the declaration contained in paragraph 1 hereof the court does not find it necessary to rule on the balance of the issues referred to in "the list of issues" agreed between the parties.
Approved: MacMenamin J.
