Implementation of Judicial Guidelines on Personal Injury Awards… Confusion in the midst of certainty?
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The new Judicial Guidelines on Personal Injury Awards are now to come into effect from Saturday April 24th 2021 commenced by the Minister for Justice, Helen McEntee.
As we know, the Judicial Council which comprises of the entire sitting judiciary voted in favour of the guidelines in March of this year with a relatively narrow majority in favour of the new guidelines. In some instances the valuation of injuries has been cut by over 60%.
What cases will the guidelines apply to?
On a reading of the appropriate legislation, that being the Family Leave and Miscellaneous Provision Act 2021 which amended Section 90 of the Judicial Counsel Act 2019 which in turn amended Section 22 of the Civil Liability and Courts Act 2004, it seems to be the case that any personal injury matter that has not been assessed by the Injuries Board on or before the 24th of April 2021 will be subject to valuation in accordance with the new judicial guidelines.
The practical implication of this is that a Plaintiff who has commenced their personal injury claim via the Injuries Board as is required, but that claim has not yet been assessed by the Injuries Board prior to the 24th of April 2021 will now be subject to the new guidelines rather than the book of quantum which would have been the guidance document for valuations at the time of their lodgement of their application with the Injuries Board.
There is some speculation that this particular point may be a subject of challenge in circumstances where it appears that the Attorney General intended that all Injuries Board applications lodged on or before the 24th April would be subject to valuation by the Book of Quantum.
The manner in which the legislation has been enacted could result in the strange scenario of two Plaintiff’s involved in the same accident being assessed under the two different regimes. (depending on when their Injuries Board application was lodged)
It will also lead to unusual scenarios whereby Court lists will contain cases from both the old and new regimes where similar injuries being assessed by a member of our judiciary on the same day in the same court will attract different awards.
Litigants should be aware that where an authorisation has issued from PIAB in circumstances where PIAB has elected not to make an assessment, those cases are not deemed to be assessed and thus, if a claimant has been issued with an authorisation from PIAB in the recent past but does not lodge court proceedings in advance of the commencement date (24th April 2021) their case will be subject to valuation under the new guidelines.
The likely reality is that the new guidelines will have an immediate downward effect on damages and even cases that are commenced prior to the 24th of April 2021 (which technically enjoy examination under the more generous criteria set out on the Book of Quantum) will undoubtedly experience the diluting effect of the new guidelines. – albeit technically not under their remit.
Uncertainty / Irony
There is irony in the fact that a body of legislation that has the intent of bringing certainty and uniform application of valuation of cases has given rise to quite an amount of uncertainty, in the short term at least.
An uncertain climate now exists for Plaintiffs and Defendants in terms of expected valuation of cases. Defendants and Plaintiff’s alike will be second guessing as to how members of the judiciary will have regard for the new judicial guidelines and to what extent they will exercise their discretion in relation to various matters.
In the transition phase therefore cases may be subject to valuation of a hybrid of both The Judicial Guidelines and The Book of Quantum.