It is “simply counterproductive” to block proposed revisions to personal injury award guidelines, Chief Justice Donal O’Donnell has said, saying that such a decision creates a risk to the system.
In July, Minister for Justice Jim O’Callaghan said he would not ask the Oireachtas to approve the judiciary’s proposal to increase personal injury awards guidelines by 16.7 per cent.
The planned blanket hike had been met with resistance from insurers and business lobby groups, which had said the increases would be passed directly on to consumers and companies.
The board of the Judicial Council is obliged to review the guidelines every three years.
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The council of the State’s judges had moved in late January to send the draft changes to Mr O’Callaghan. The changes only have legislative effect when approved by the Oireachtas.
The recent proposal was the first review of guidelines that came into effect in April 2021.
When refusing to ask the Oireachtas to approve the hikes in July, the Minister spoke of the risk that judges could start making increased awards outside of the guidelines, while the Injuries Resolution Board remained bound by the guideline thresholds. The board is designed to assess and place a value on injury cases to avoid them ending up before the courts.
Such a scenario runs the risk of driving claimants back to the courts, making the claims process more expensive, Mr O’Callaghan said.
At a ceremony marking the start of the new legal year on Monday, Mr Justice O’Donnell, the nation’s most senior judge, said a media campaign involving what he considered “misplaced criticism” of the judiciary apparently resulted in the updated guidelines not being put before the Oireachtas.
He said anyone concerned about awards or who disagrees with the level of recommended awards “should not be opposed to the amendment of the guidelines”.
“Looking at this purely from a practical and pragmatic point of view, it is simply counterproductive to seek to prevent the revision of guidelines in this system. The failure to update the guidelines will put the guidelines system itself at risk,” he said.
Mr Justice O’Donnell said the revisions to the guidelines were agreed after consultation with economists and comparisons with relevant jurisdictions in England and Wales and in Northern Ireland.
In those jurisdictions, procedures exist providing that awards are adjusted in line with changes in the retail price index, he said.
The judge warned that if the courts were invited to depart from guidelines and make higher awards reflecting the effect of inflation then “the guidelines will inevitably begin to fray”.
“Given the benefits of the guidelines in terms of certainty and predictability, it is not easy to understand why that would be allowed to occur,” the judge said.
Separately, Mr Justice O’Donnell said Supreme Court proceedings would be recorded and broadcast online from this week.
In his speech delivered at the Four Courts on Monday, Mr O’Callaghan took aim at litigants seeking to stop “important infrastructural developments”.
He said the right of those to take such legal challenges “must be balanced against the interests of the broader community and the common good”.
