Chief Justice warns failure to update personal injuries guidelines puts system at risk

A planned increase of the personal injuries guidelines, mainly for soft tissue injuries, by 16.7% had been met with resistance from insurers and business lobby groups, who said it would be passed directly on to consumers and companies

Mr Justice Donal O'Donnell speaking at the opening of the new legal year in the Round Hall of the Four Courts in Dublin today. Photo: Sasko Lazarov/Photocall Ireland

The failure to update the personal injuries guidelines for compensation awards in court cases will put the four-year-old guidelines system at risk, the Chief Justice has warned.

Mr Justice Donal O'Donnell gave the warning as judges and lawyers gathered to mark the opening of the new legal year.

"Looking at this purely from a practical and pragmatic point of view it is simply counterproductive to seek to prevent the revision of the guidelines in this system," the Chief Justice said.

​In July, minister for justice Jim O’Callaghan said he would not ask the Oireachtas to approve the judiciary’s proposal to hike the personal injuries guidelines, mainly for soft tissue injuries, by 16.7% in a first review of the new measures by the Judicial Council.

The planned increase had been met with resistance from insurers and business lobby groups, who said the increase would be passed directly on to consumers and companies.

At a ceremony marking the start of the new legal year on Monday, Mr Justice Dónal O’Donnell, the most senior judge in the country, said a short media campaign involving what he considered “some misplaced criticism” of the judiciary apparently resulted in the updated guidelines not being put before the Oireachtas.

“In this case, the Personal Injuries Guidelines Committee, the Board and the Judicial Council were simply complying with the letter and spirit of the statutory scheme.

“Even someone who is concerned about awards, and/or who disagrees with the level of recommended awards, whether generally or by reference to specific categories of injury, 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,” Mr Justice O’Donnell said.

Mr O’Callaghan, along with various members of the judiciary and other legal professionals, were in attendance for the ceremony in the Four Courts’ Round Hall.

The minister for justice Jim O’Callaghan, along with various members of the judiciary and other legal professionals, were in attendance for the ceremony in the Four Courts’ Round Hall today.

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 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 are invited to depart from guidelines and make higher awards reflecting the effect of inflation, “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.

'Dangerous times'

In his address, Mr Justice O’Donnell also addressed recent commentary around the length of judgments delivered in Irish courts.

The judge noted that the gradual lengthening of judgments is not a phenomenon unique to Ireland — in other jurisdictions with similar legal systems, it is “commonplace” to find judgments in excess of 100 pages.

He posited that two possible reasons for this phenomenon is the system of law has “become increasingly complex”, and that expectations of rigour and transparency in the reasoning of the courts has increased considerably.

The judge added that beginning this week, Supreme Court proceedings will be recorded and broadcast online.

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In closing remarks, the judge said living through “dangerous times” has increased the “understanding and appreciation of the role of the courts in a modern liberal democracy”. This increased appreciation, he said, is a “warning indicator that the model is under stress”.

“It is in these difficult times that we come to recognise that a court system, at every level of that system, is fundamental to a citizen’s sense that they live in an ordered State with values of fairness and justice which therefore deserves their allegiance,” he said.

In a speech delivered before Mr Justice O’Donnell, 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”.