Majority of people still use solicitors despite ten years of non-adversarial compo system

More than 10 years and 31 judicial reviews after its formation, the Injuries Board has established itself as a system through which victims of accidents can seek compensation without relying on solicitors.

Established in 2004, its purpose was essentially to assess compensation for workplace, motor and public liability-related injuries. The model would, it was hoped, avoid unnecessary legal fees, reduce the amount of time it took to finalise claims and cut the cost of insurance.

Legal challenges taken since then flag some level of opposition to its mandate. But if these are dismissed as the work of vested interests in the legal profession, then there is something more worrying for supporters of the system: the majority of people still engage solicitors.

"Culturally, in the country, people still think that they need to go to a solicitor to send in a claim. That's a citizen's right but we are still unsure whether that's a lack of knowledge or understanding," explains Patricia Byron, the outgoing chief executive who has spent 10 years shaping the service and who steadfastly defends the concept of a lawyer-free approach to compensation.

“It’s paper-based. There is no oral presentation or adversarial presentation. Nobody gets more or less for going through a third party. When we are assessing a claim, we do not take into account whether or not a solicitor has sent in the paperwork.

“There is, potentially, out there a misunderstanding that because a solicitor sent it in, he is involved in arguing with us.”

Earlier this month, the Injuries Board released its review of 2014, a year which saw claims volumes stabilise. There were 31,576, a marginal 1 per cent increase on 2013 (31,311).

Average compensation awards over the last five years came in at €22,000. The highest figure last year was €972,898 following an employer liability claim. Total payouts amounted to €281 million, although much of that figure reflects a high level of claims filed in 2013.

Low-cost system

“The higher award volumes in 2014 are also indicative of an increase in the number of respondents, typically insurers, using the Injuries Board’s low-cost and efficient system to handle uncontested personal injury claims,” the board said after crunching the numbers.

It is a relatively straightforward structure. Injured parties must, by law, file claims with the Injuries Board, not the courts. Applicants must outline the nature of claim and submit information including the date of accident, details of the respondent and a medical report.

“This is not a litigation process or a legal process, it is an administration process,” says Ms Byron, addressing the omission of lawyers. “It’s kind of a triage.”

It is only in cases where liability is not accepted by the respondent (generally an insurance company) that the matter ends up in court.

In 2014, awards for motor-related claims accounted for three quarters of those processed. Employment-related claims were far fewer but delivered highest average payouts (€32,134).

“We were endeavouring to build an organisation very quickly because there was a political will to do something about the cost of insurance at the time,” explains Ms Byron.

The lack of popularity in some circles was quickly apparent. Many claims were rushed into the litigation process before the board was properly up and running.

Then, within its initial 12 weeks of existence, the first of 31 judicial reviews was taken, challenging the integrity of the system. It lost this first test [the only defeat] but gained something from it too. While the High Court ruled in favour of the application to have solicitors notified of each step in the client process, the Injuries Board was successful in its request that the applicant be copied in on the exchange, thereby centrally involving them.

Track record

“Factually it was a loss for the board but it was [also] a victory because we got the transparency established,” says Ms Byron.

“[31 judicial reviews] is quite significant for a State body. I have heard people say that it’s one of the leaders in terms of an agency being challenged.”

The Injuries Board claims victory through numbers: average claims are today processed in seven months and at a cost of 6.7 per cent of the overall award. It used to be three years, with a 58 per cent cost, it says.

“With over €1 billion in savings delivered to date and a 10-year track record behind us, the benefits of non-adversarial claims resolution are unequivocal,” says Ms Byron. So why the opposition?

Roderick Tyrrell of Tyrrell Solicitors and lawyer.ie says it's akin to cutting your own hair, fixing your own leaking pipes or repairing an engine, emphasising the nature of professional service.

“The value is that you will have a nice haircut, you will have good plumbing or you can drive your car without killing someone,” he says.

While straightforward claims are one thing, more complex cases include potential stumbling blocks like the value of a claim or having the ability to identify the proper respondent, the “legal entity”, he says.

There is the example of a woman who slips on an icy footpath outside a shopping centre. Who does she claim against – the shop, the management company or the owner of the land? In short, claims aren’t always straightforward and require guidance.

“The real question is if the Injuries Board is so great why is everyone still using solicitors?

“When it wins on the low-level claims it’s good, there is no doubt about that but the problem is you can’t [immediately] tell the difference between a minor and a serious claim.”

Mr Tyrrell says insurers mark all correspondence “without prejudice”, allowing them an out for litigation where there are any perceived issues with the claim. In such scenarios, solicitors are necessary.

The other main issue for the Injuries Board is to reduce expensive insurance policies by cutting legal costs faced by providers.

There is a dichotomy between reports of anticipated hikes in car insurance this year and no obvious increase in the number of claims made. Why are policy costs going up? The reasons are not clear which is why Ms Byron argues for full transparency on decisions.

Between 15,000 and 18,000 motor insurance claims are settled behind closed doors and it is here the answers might lie. The Injuries Board has previously called for more openness on the cost of settling claims in order to understand price fluctuation.

“We were set up to reduce the cost of insurance so it’s not that we are overstepping the mark. It’s our area and if these claims don’t need to come to the full awards process then where are they going and what’s happening?” says Ms Byron.

“The personal injury book is a good indicator of the cost of claims and we don’t see any changes in the book of any significance.”

Heavy caseload

Possibly, the reasons for policy increases are related to the cost of underwriting or policy pricing but for now we just don’t know.

Whether the system is picked apart by solicitors or held to be lacking in the area of rising insurance costs, the Injuries Board is clearly shifting a heavy caseload.

The future, says Ms Byron, who is leaving her role with the board this month, should be a furthering of the non-adversarial model, in spite of its detractors.

“Litigation is [required] when there is a lack of clarity on who is responsible. But in any book of claims there is a large cohort of honest claims that need to be dealt with [quickly] and not dropped into litigation. This model allows for that,” she says.

“It’s normally cheaper and faster and the point that I always make is it’s morally correct. And I think that’s how you [should] treat your citizens.”