Mr. Peter Boland:

I thank the committee for the invitation to make a statement in its scrutiny of the personal injuries resolution board Bill 2022. The Alliance for Insurance Reform consists of 47 civic and business organisations from across Ireland, representing over 55,000 members, who in turn have 700,000 employees, 622,000 volunteers and 374,000 students. Our single aim is to get insurance premiums down to affordable levels and keep them that way. I do not propose to read the introduction to our presentation except to say that as recently as last month in a survey we conducted among members, 42% of respondents indicated that insurance costs are threatening the future of their organisation. This figure is not materially different from the response to the same question from a survey we carried out in 2018. In addition, 31% state that insurance costs are preventing them from providing certain services, and this view is particularly prevalent in the voluntary and community sector. Overall, liability premiums on renewal have increased by 16% in the past 12 months.

The fact that 85% of the value of personal injury settlements in the liability sector are now made via litigation guarantees that the settlement of such claims is as expensive as possible, with obvious ongoing impact on the cost of insurance. If we genuinely want to protect Irish businesses, voluntary and community groups, sports and cultural organisations and charities from the impact of unsustainable insurance costs, we must protect and develop PIAB so that it can settle more cases. This is where the personal injuries resolution board Bill 2022 comes in. We warmly welcome the intent of this Bill, even if it does not go far enough in terms of enabling PIAB to adjudicate on claims.

With regard to the specifics of the proposals in the Bill, head 4 regards the supply of personal public service numbers, and it is on page 6 of the general scheme. We welcome the requirement for claimants to provide their PPS number to verify their identity and the proposal that failing to supply a PPS number will now be an offence. However, we note there is no sanction for this offence. We ask that an appropriate sanction be added to make this requirement meaningful.

Head 6 regards the wishes of the respondent to enter mediation. Subject to some caveats, which I will outline in a moment, the alliance welcomes the provision of mediation into the PIAB process but our view is that it would be of most benefit if it could be introduced at any stage in the process.

This head seeks to give respondents one opportunity to consent to mediation at the start of the process. We ask that the Personal Injuries Assessment Board, PIAB, be allowed to re-propose mediation to both parties later in the assessment, and particularly following assessment being rejected by either party. Additionally, we suggest that either party should be allowed to propose mediation at any stage as long as this does not serve to delay the overall process.

As I mentioned, the alliance for insurance reform welcomes the provision of mediation into the PIAB process, subject to several concerns. We welcome the commitment in the explanatory note to head 8 that mediation will not affect the timeline for assessments of a claim in cases where the statutory time frame applies. However, there is no mention of delivery costs of mediation. It must be crystal clear that mediation at PIAB cannot attract legal fees or other delivery costs, as this would fundamentally undermine its mission, particularly in the present situation, where there is no cap on fees for mediation. Furthermore, in order for mediation to be effective, it is essential that the plaintiff is present at all times, even where plaintiffs choose to use the services of a solicitor.

Head 9 deals with the power of the board to make procedural rules for mediation. As per our comments on head 6, we ask that PIAB and both parties be allowed to propose mediation at any stage in the assessment process and particularly following assessment, if the assessment is being rejected by either party.

Finally, with regard to mediation, we propose that if either party refuses to engage in mediation when it is proposed, such refusal should be factored into decisions on costs in any subsequent judgement by the courts.

We welcome the broadening of PIAB's responsibilities through the amendment of section 17 of the principal Act. Given the experience and expertise PIAB has developed in the 18 years since its establishment, it is now the most appropriate forum for the determination of a broader range of personal injury claims. In particular, it is the view of the alliance that it is well within PIAB's capability at this stage to assess psychological injuries and more complex claims, given that insurers' assessors frequently assess such complex claims, and insurers and claimants' lawyers settle accordingly.

Head 17 deals with section 50. Section 50 of the principal Act pauses the Statute of Limitations for claims before the board until six months following the issuing of an authorisation by PIAB. That six-month pause was a temporary measure to allay early concerns about the PIAB process being a barrier to the constitutional right of access to the courts. However, that issue has long been addressed and this pause must now be removed, as it merely serves to delay the process.

Head 24 deals with the functions of the board. The alliance welcomes the formal addition of functions regarding the publication of data and research on personal injuries and related areas. It is essential for reasons of public policy, competition, health and safety and fraud prevention that details of all personal injury claims in the State be recorded, analysed and published. The alliance calls on the Department to initiate the transfer of Insurance Ireland’s claims data-sharing platform, InsuranceLink, into the ownership of PIAB, where it can be developed by the board in the interests of the common good and accessed by all parties with a valid fraud prevention or detection function.

The European Commission Directorate-General for Competition, having issued a preliminary assessment last year which found that Insurance Ireland restricted access to InsuranceLink, thereby restricting competition in the Irish motor vehicle insurance market, has published proposals by Insurance Ireland concerning access to InsuranceLink which involve Insurance Ireland retaining ultimate ownership of the database. We strongly believe that InsuranceLink should be taken from Insurance Ireland and made completely independent. PIAB is the natural repository for this data, given its founding legislation, its role in the Irish personal injury sector and its experience and expertise in this area. For this and all databases, data protection considerations must be honoured but not allowed to impede the provision of data where the data serves the common good, promotes safety or prevents and detects criminality.

Finally, with regard to head 24, we welcome the proactive approach proposed for promoting the board and its work. PIAB must continue to make clear to plaintiffs and respondents alike the benefits of settling via the board and the potential consequences of non-engagement or rejection of an assessment by the board.

On head 27 on the disclosure of information regarding offences, we welcome the formalisation of a mechanism for reporting suspected fraud to An Garda Síochána.

It is a common experience among our members that the case presented to court varies in material details from the case that was presented to PIAB, which undermines the assessments of the board. In addition to the content of the draft legislation we are scrutinising today, the service provided by PIAB would be greatly enhanced if court cases were to commence with the exhibition of the PIAB claim. This would verify that, by and large, the same claim is being made in court. If it is not, then the claim should be sent back to PIAB.

The alliance believes that reform of PIAB will be a missed opportunity if it does not consider the development of PIAB into a quasi-judicial body, along the lines of the Workplace Relations Commission, Residential Tenancies Board or An Bord Pleanála. While the right of access to the courts must be protected, PIAB now has the experience and expertise necessary to facilitate it in adjudicating on personal injury claims. In addition, the recent adoption of judicial guidelines on damages for personal injuries means that many more cases may be directed towards the District Courts, which will present a capacity problem. PIAB is well-placed to adjudicate on such claims, therefore talking pressure off the courts.

We note the decision of the Supreme Court in the case of Zalewski v. the Workplace Relations Commission, Ireland and the Attorney General, and welcome the clarity this ruling would provide in considering the establishment of PIAB as a quasi-judicial body.

We propose that a mechanism be inserted into the Act that allows for periodic reviews of the new legislation in order to allow for the consideration of additional reforms and to counter any unforeseen challenges to the operation of PIAB in the future. Such a review mechanism is already built into the founding legislation of the Legal Services Regulatory Authority. I have provided section 6 of the Personal Injuries Assessment Board Act but I do not intend to read it out in full detail.

In conclusion, businesses, voluntary and community groups, sports and cultural organisations and charities need insurance to be affordable now and into the future as a matter of urgency. While we warmly welcome this draft legislation, we urge this committee to do everything in its power to make sure the legislation is amended, approved and commenced in its entirety immediately to facilitate this. Of all the major challenges facing Ireland right now, of which there are many, insurance is the one that Government can fix quickest but reforms are not moving fast enough. It is clear that neither the economy nor the fabric of society will fully recover from the Covid-19 pandemic unless insurance is sorted. Government has a golden opportunity to make the cost of insurance affordable now and forever, but only if it gets meaningful reforms, such as this legislation, into place now before the opportunity is lost. This concludes our formal presentation and we will be happy to take any questions.