A judge has taken another swipe at lawyers who, he said, with the ongoing approval of successive governments, continue to refuse to settle garda compensation claims before they get to court.
Mr Justice Michael Twomey, who quickly won himself the nickname “Tombstone” among the legal fraternity for his swingeing cuts in awards and critical references to high costs, has now set out practice regulations that have shaken lawyers engaged in garda compensation claims.
Judge Twomey said he had no hesitation in laying down rules requiring the State to make a written settlement offer to a garda looking for compensation and, where a court award did not equal or beat that offer, awarding costs against the garda concerned.
In another significant judgment attacking unnecessary High Court costs in garda compensation cases, Judge Twomey said that within seven days, or as soon as practicable, following a claim being listed for hearing the State should make a written full settlement offer.
If it was refused and an award greater than the offer was made, the garda would be awarded his or her entire legal costs but, if less than the offer, the court would consider awarding gardaí their costs only up to the date of the offer. The new practice would be identical to settlement issues currently applying in other courts to non-garda personal injury claims.
Judge Twomey said there was a zero settlement rate in claims under the garda compensation acts, which could only be heard in the High Court, compared to a 90% settlement level in other personal injury claims.
“The obvious reason for this is that there is no financial incentive for the injured guard to settle and in fact there is a financial incentive for the lawyers not to settle since they would be forgoing the costs they get for the hearing,” the judge said.
He said the court’s improved settlement practice would save taxpayers millions in legal costs and lead to gardaí getting their compensation sooner and without the necessity of court hearings.
In cases brought under the garda compensation acts there was no issue as to liability once a claim was authorised by the Minister for Public Expenditure and Reform who accepted liability to pay for injuries while on duty.
In most hearings assessments would be for minor sprains and soft tissue injuries but instead of being settled at a fraction of the legal costs or being heard in the district or circuit courts with less legal costs or being dealt with by the Personal Injuries Board with no legal costs whatsoever, all of these cases went to a contested assessment in the High Court.
“The only winners from the fact that 100% of garda compensation cases go to full hearing in the High Court are lawyers for the State and for the applicant garda. The clear loser is the taxpayer who funds all of these legal costs,” Judge Twomey said.
He said the zero settlement rate in garda compensation cases was a startling statistic but not surprising when one considered that in other personal injury claims there was a financial incentive for the litigant to settle because of the lodgement procedure where a litigant could be penalised in costs where they failed to accept an offer.
Judge Twomey said that in the absence of legislative reform to allow minor garda compensation cases to be heard by the district or circuit court or to be dealt with by the Personal Injuries Board his judgment considered how to seek to increase the zero settlement rate by changes to practice.
There was no good reason why garda compensation applications should not settle just as in other personal injury cases with a significant saving for taxpayers.
“It seems patently obvious that the absence of lodgement provisions applying to garda compensation cases has led to the current situation where the settlement of those cases is nil,” Judge Twomey said.
He said in the very uncertain political and legislative climate which existed at present it was perhaps understandable that legislative reform had not received priority.
There were some changes in practice which the court could implement to encourage the State to make reasonable offers at an early stage and gardaí to accept any reasonable offers and in making this change the court was doing so in the public interest.
Judge Twomey granted counsel for the State and counsel for applicants liberty to make submissions in relation to the change of practice.