Judges have a duty to implement the law fairly and independently, but can it be argued that the campaign to have them reduce personal injury award levels is an interference in that independence?
A very successful public relations campaign has been waged whereby the sometimes crippling insurance premiums that some businesses have to pay have been portrayed as being the fault of judges and an avaricious legal system.
The judges, the argument goes, are too quick to be generous with the insurance companies’ money, money that ultimately comes from the people and businesses that pay insurance premiums.
It is because of this general argument that the Oireachtas has directed, by way of the 2019 legislation that set up the Judicial Council, that the judiciary set up a Personal Injuries Guidelines Committee, and produce a report within a stated period, to be presented to the council. ( The Judicial Council comprises all of the State's 166 judges).
A draft report has been produced by the guidelines’ committee and it is scheduled to be voted on by the judges this Saturday. The draft report has not been published.
If passed the new guidelines are expected to significantly reduce the level of awards for some types of injuries, with soft tissue injuries being a particular target.
If the new guidelines are adopted, and lead to a reduction in awards, then this in time will lead to a reduction in premiums. Or so the public relations campaign would have us believe.
Either way the campaign has successfully created a demand for action that our politicians have responded to, and which has led eventually, by way of the Judicial Council, to a response from the judiciary.
Recalibration
The judges were already taking action. In recent years a number of rulings by the Court of Appeal in relation to High Court personal injury awards have had the effect of a general recalibration downwards of the awards.
On the one hand, this can be seen as the judiciary running its own affairs in a way that raises no concerns about the issue of judicial independence.
But it could also be argued that the very fact that the awards that were being made at High Court level had to be reset is an indicator that something was amiss in the first place.
Some have argued that the recalibration that had taken place at High Court level has not filtered down to the level of lower courts, where smaller types of personal injury awards are made.
The adoption of the Judicial Council guidelines may see award levels being recalibrated for such smaller injuries.
Again it can be argued that this means that the judges at Circuit and District court level have not been implementing, as they should, the rulings of the Court of Appeal, and Supreme Court, in relation to how personal injuries awards should be calibrated, with modest injuries only receiving modest awards.
Consistency
The Judicial Council provides an opportunity for the judiciary to explore all these issues, while also promoting consistency across the courts for similar awards for similar injuries.
The council provides the judiciary with a way of responding to the legitimate concerns that arise in society, not just in relation to personal injury award levels, but to the outcomes from our courts system generally.
It will be interesting to see how transparent, or otherwise, the process will become.