The Society had sought the meeting with him and his officials to discuss various aspects of the cost of insurance and the personal injuries litigation system. The Society believed it had information and insights to share with him that he might not hear from other quarters.
The Society representatives comprised director general Ken Murphy, past-president and member of the Personal Injuries Commission Stuart Gilhooly, and Council member Martin Lawlor.
They urged that the Society and the solicitors’ profession should not be viewed falsely by Government as part of the insurance problem, but properly as part of the solution. There was no ambivalence in the profession about this. Solicitors utterly condemn all fraudulent claims.
Those who bring them should be detected, prosecuted, and imprisoned. The same should apply to any solicitor knowingly assisting in the bringing of a fraudulent claim.
The question remained, however, what the true incidence of fraudulent claims was.
The Society believed it was far lower than insurers and other defence vested-interests claimed constantly in the media.
People made judgements about this based on the publicity given to cases being ‘thrown out’ by judges.
However, genuine cases of negligence causing injury – statistically the overwhelming majority of all cases – are rarely, if ever, reported in the media.
This gives a false impression of the incidence of genuine versus fraudulent claims to the public.
As personal injuries cases are almost invariably brought by solicitors on a ‘no-win, no-fee’ basis, even apart from the ethical principles that should always prevail, solicitors had absolutely no economic incentive to carry the cost of bringing a case in whose merits they did not fully believe.
The Society questioned why the focus of attention was always on the levels of awards in Ireland in comparison to England and Wales.
The true focus of attention should be on the levels of premiums in the two jurisdictions, and the Society had expert research to demonstrate that – when like was compared with like – insurance premiums in many, if not most, cases were actually higher in England and Wales than in Ireland.
This demonstrated that the assumed direct link between award levels and the cost of insurance was highly questionable.
In addition, the Society insisted that it was perfectly legitimate to urge that the perspective of accident victims should be heard.
The innocent victims of the negligence of others had no organised voice, unlike other powerful vested interests, and their perspective should not be constantly ignored in the utterly one-sided public debate.
Fully signed up
The Society is fully signed up to the recommendations of the unanimous Personal Injuries Commission report published in November 2018.
This includes the recommendation that the new Judicial Council should review the levels of awards for various types of injuries, in particular soft-tissue (‘whiplash-type’) injuries, ultimately leading to judicial guidelines on quantum for such injuries.
Care should be taken by Government in such a process, however, to ensure that there would be no undermining of the separation of powers provided for in the Constitution.
The State is most often a defendant in personal injuries cases, and its status as a vested-interest should not be ignored.
Of vital importance, in the view of the Society, is the necessity of ensuring that, if there were to be a reduction in awards to accident victims, the Government must insist on a cast-iron and, if necessary, a statutory guarantee that premiums will reduce.
In the absence of such an enforceable statutory guarantee (as mere assurances from the insurance industry would be worthless), insurance premiums would not reduce. Instead, the already excessive profits of insurance companies would simply increase, with reduced awards to victims but no benefit whatsoever to premium payers.
That would be not merely unconscionable, but senseless.
In the course of what the Society representatives viewed as a very worthwhile meeting, Minister D’Arcy appeared to listen respectfully to the Society’s views and arguments.
He made no direct criticisms of the solicitors’ profession, and indicated that he agreed with a great deal of what the Society had said to him.
In particular, as he had stated many times publicly, he was determined not only that what he viewed as “excessive awards for minor injuries” would have to be reduced, but that the full benefit of such reductions must be passed on by insurers to premium payers.
He would make absolutely certain they were not retained by the insurers.