Heather Humphreys (Cavan-Monaghan, Fine Gael) | Oireachtas source

I understand what the Deputy seeks to achieve. The effect of the amendment is to remove the discretion of the court as to what order it may make on what costs, if any, it will allow a claimant or respondent, taking into account the failure by the claimant or respondent to comply or submit in the manner specified in subsection (1). It raises constitutional concerns because it would cut across the constitutional principle of the separation of powers and the discretion of the courts to make an order for costs.

Section 8(1) lists the circumstances under which the court can consider an adverse costs order: where the assessors have requested the claimant under section 23(1) to furnish additional information or documents relating to his or her claim for special damages and the claimant has not complied with the request; where the assessors have requested the respondent or respondents under section 23(2) to furnish additional information or documents and the respondent or respondents have not complied with the request; where the assessors have requested the claimant or respondent or respondents under section 23(4) to assist or co-operate with retained experts, and the claimant or respondent or respondents have not complied with that request; or where the assessor has requested the claimant to submit himself or herself to a medical examination arranged by the Personal Injuries Assessment Board, PIAB, and the claimant has not submitted himself or herself to the medical examination.

The section provides that the court may order certain matters, taking into account the failure to comply or submit in the manner specified in subsection (1). The word "may" in the section refers to the order a court may make on what costs, if any, it will allow a claimant or a respondent. The making of an order is, and must remain, a discretionary matter for the judge. The court must take the matters referred to in subsection (1) into account when deciding on whether to make an order.

When the general scheme of the Bill was published in June 2017, it was proposed under head 7 that a court shall have regard to the failure to respond to a request for further information, documents or medical reports in determining the admissibility of evidence in subsequent proceedings and that a court shall have regard to a failure to attend an independent medical examination in determining what medical evidence is admissible in the court case.

The Bill was drafted in consultation with the Office of the Attorney General, which was involved directly in the wording of the section. It was decided that a proposal to limit a court's discretion as to the admissibility of evidence would raise constitutional issues because it would cut across the constitutional principle of the separation of powers. It is the function of the court and the constitutional duty of a judge to hear all the available evidence, arrive at a decision on foot of that evidence and determine issues of liability and quantum. Furthermore, the plaintiff has a right to tender evidence before the courts. The court must retain discretion in any given case to ensure constitutional rights are vindicated and fair procedures are followed. By providing for potential financial consequences to be applied for non-compliance with requests by PIAB assessors, the section, as drafted, should have the desired effect to change behaviour and encourage parties to adhere to the requirements set out in the Act.

For the reasons I outlined, I ask the Deputy to withdraw his amendment because I cannot support it.