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PI timeline chokehold will delay access to justice

10 Feb 2022 / law society Print

PI timeline chokehold 'will delay access to justice'

Drafting is to begin on the Personal Injuries Resolution Board Bill, Robert Troy (Minister of State for Trade Promotion, Digital and Company Regulation) has said.

The bill aims to facilitate an increase in the number of personal-injury claims resolved through Personal Injuries Assessment Board (PIAB) processes – and without recourse to litigation. 

The General Scheme proposes to amend the Personal Injuries Assessment Board Act 2003-2019, such that:

  • PIAB will offer mediation as a means of resolving a claim,
  • PIAB will retain claims of a wholly psychological nature,
  • PIAB will have additional time to assess claims where an injury is yet to settle, rather than releasing to litigation,
  • PIAB will deepen its analysis and public-information roles,
  • PIAB will seek proof of identity to reduce fraud, and
  • Court discretion on litigation will be restricted.

Increased time limit

However, personal-injury litigation solicitor Stuart Gilhooly SC has expressed his concern at the proposal to increase the time limit for the consideration of claims. 

Minister Troy says that insurance reform is a continuing priority, and he wants effective reform of the PIAB model to reduce the cost of litigation and premiums. Steering claimants to PIAB will reduce the need to go to court, the minister said.

Gilhooly responded: “Some injuries are simply not appropriate for assessment, and must proceed to the court process.”

He warned that increasing the time within which a claim must stay inside the process, means that it will take even longer to conclude when it reaches the court stage. 

If released earlier, the necessary court documents can be prepared while simultaneously allowing a final prognosis to be made, the senior counsel explained.

“Retaining the claim in the PIAB process merely prolongs the time for compensation, and denies access to justice for injuries victims.

“It also expressly defeats a primary purpose of the PIAB process – quick resolution of the claim,” he added.

‘Stagnation’ of cases

A Law Society Litigation Committee submission on the matter (in April 2021) said that a mediation process, properly administered in a cost-effective manner, would be useful.

Delayed timelines had led to cases “stagnating” in the PIAB process, the submission pointed out.

“It is essential that PIAB allows the claimant their constitutional right of access to the court in the most expedient manner possible, while attempting to resolve as many claims as possible without incurring unnecessary costs,” the submission stated.

PIAB discretion on psychological claims has been used in a “somewhat puzzling” manner, the document continues.

Given that the proposals would extend the board’s remit and give it enhanced statutory functions, the General Scheme also provides for a change of name to the ‘Personal Injuries Resolution Board’.

The minister added that he was also addressing how to reform PIAB.

AG advice

Minister Troy told the Seanad yesterday (9 February) that the Attorney General (AG) had advised against reforming PIAB as a quasi-judicial body.

“The potential to legislate that a claimant/respondent could only appeal a decision of the board on a point of law was fully explored,” he said.

Primacy of the courts

The minister added, however, that the AG had advised that such an approach would impinge on the constitutional right of access to justice delivered by the courts, as well as the primacy of the courts in the administration of justice.

He also told the Seanad that mediation offered by PIAB would follow recognised principles – including being a fully voluntary process, ensuring confidentiality and impartiality, and providing the opportunity for the parties to determine the issues that required resolution.

Mediation ‘won’t affect timeline’

“Where the parties do not consent to mediation, the existing process in respect of assessment of a claim remains,” he said, adding that mediation would not affect the timeline for assessment of a claim.

The minister pointed out that the board would still be obliged to assess claims within nine months of confirmation of the respondent’s consent to the assessment process.

The minister also noted that the number of claim applications to PIAB in 2021 is estimated to have fallen by around 20% from 2020, after a 16% drop in 2020.

PIAB has told the minister that public-health restrictions led to a significant reduction in the number of road collisions in the past two years.

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