Willie Penrose (Longford-Westmeath, Labour)

I am a practising barrister; immediately therefore the PIAB and those associated with the insurance industry will say, "You would say that". Notwithstanding the fact, some of those involved in the PIAB are closely associated with the insurance industry or had backgrounds in it. That is their profession. It is often the case when one is a legal person that there is a tendency to shoot the messenger because one may make points with which people are not happy.

Let us be clear; I am here, not as a legal person but to represent my constituents, people who have rights that are being trammelled upon and curtailed. They are not being shown respect, despite the fact that under the Constitution, they are entitled to have those rights vindicated. A plethora of cases have indicated people have rights of access to the courts and that they are entitled to receive the best legal advice available to them. If they win their case, because they have been the victim of an injury perpetrated by somebody who has done wrong, their costs should also be recovered.

Like Deputy D'Arcy, I also have a business and pay insurance. The premium has reduced to some extent but it is nowhere near the level of reduction that, according to the Minister, should be passed on to me as a consumer since the introduction of the PIAB. The biggest beneficiary to date of its introduction has undoubtedly been the insurance companies and the insurance industry. The cost of insurance has come down but the magnitude of the decrease, some of which would have happened, is dwarfed by the significant increase in the profits of insurance companies. In 2005 the profits of the motor insurance industry increased by 26% to €480 million.

This figure comes from a report by the Financial Regulator. Overall, insurance companies made a net underwriting profit of €802 million in 2005. This figure only pertains to the Irish risk business and represents a 16% increase on the €689 million achieved in 2004. This gives the lie to any displays of the poor mouth from such sources up to now. Profits have continued to increase in 2006 and I would like to see those figures.

It is clear the major winner from the introduction of the Personal Injuries Assessment Board was the insurance industry. Is that a coincidence, simply pure good fortune or would this have happened to some extent in any event? The board has played a role. However, it only handles uncontested cases and Members should understand that many such cases are contested. Although some Members were of the view that one had a choice and was not obliged to go through the board, one must do so. Moreover, it is obligatory to go through PIAB even when one has a case against the Motor Insurers Bureau of Ireland, which was set up by the Oireachtas in a parallel measure. In such cases, it is passed back and subsequently the entire process begins again.

While the Personal Injuries Assessment Board offers assistance to people to try to get them into the system, the important point is that one must get some advice before going through the board. Not everyone can read the plethora of complex forms that come to them. Mr. Justice John MacMenamin's judgment in the O'Brien case is very interesting. He went to great lengths to spell out the reasons and cited various cases from America and elsewhere. Every other jurisdiction recognises that legal representation involves conduct as well as advocacy. However, the Minister's actions today will ensure they are wiped out.

No one who is involved in any way in a legal profession is able to offer any criticism of the Personal Injuries Assessment Board because we are deemed to be vested interests. Others however, including those with senior jobs in other fields involved in the insurance industry, can say what they like or put forward any view without being deemed to be vested interests. There is no point considering matters through rose tinted glasses that are coloured by whatever background from which one comes. It is important that people's rights are not simply trampled upon.

Insurance companies have not passed on the moneys saved to their customers. I wish to acknowledge the work of Pat Leahy of The Sunday Business Post who has conducted a critical analysis of the Personal Injuries Assessment Board, which was not the most popular thing to do. I understand that Dearbhail McDonald, the legal correspondent for the Irish Independent, has also done so. In an interview with The Sunday Business Post on 5 November 2006, the chief executive of the Personal Injuries Assessment Board stated "It's not my job to criticise the insurance companies" and she refused to comment on the level of premiums charged. While she may believe it is not her job, the PIAB criticises everything else. Incidentally, I was holding a clinic one day when I overheard an avalanche of Personal Injuries Assessment Board people coming on air to criticise and take issue with everything she said.

Members should consider the facts. How many of the claimants, of those who have filled forms with the board, have had their cases proceeded with and have accepted the awards? While the Minister has cited a figure of 35,000, the duty of lawyers is to act in the best interests of their clients. Everyone, including IBEC and the insurance industry, is claiming we are all one big happy family. I have always taken the view that when everyone is pronouncing that we are all winners, someone must be losing. It is clear the losers are ordinary claimants and consumers. While the ultimate aim is a lawyer-free zone and there is nothing wrong with that, not everyone is able to understand the intricacies and complexities that exist. Clearly this is a one-sided equation as the insurance companies can arm themselves with the best lawyers and claims managers. Such individuals are very good at their job and I salute them for that. They can be as tough as nails. However, as Deputy Flanagan asked, what about the little person? Undoubtedly, the system will gain a fresh impetus after the passage of this Bill. Basically, it is so designed to compel accident victims to accept settlements that may be significantly lower than their true value. A fear will be generated that were one to reject an offer of €25,000 and proceed to court, where one was awarded €24,999, one would lose both one's own costs and those of the defendants. Although this constitutes a double whammy, the system is supposed to be fair.

The Minister should recall the Bill. I had always considered him to be a middle of the road or centre-left politician, unlike some of his colleagues and have always believed that he would consider matters from a broad perspective. I am surprised he has presented this Bill to the House in a rushed manner. Is there any control of the insurance industry under any circumstances?

Recently, I read that insurance companies are offering parents money for injuries sustained by their children. In other words, they are settling children's claims directly with parents. I am unsure of the truth of this report. For good reason, the Civil Liability and Courts Act and the Personal Injuries Assessment Board Act have in-built statutory safeguards to protect the rights of children. All such offers of settlement to a solicitor or parent of a child under 18 years of age must remain just that, namely, offers until they are approved by the court of competent jurisdiction. A time-honoured process exists for enabling the court to adjudicate upon the adequacy or otherwise of the offer. Of course to invoke such vital safeguards, the claim must have been initiated, that is, legal proceedings must be issued or a claim made through the Personal Injuries Assessment Board. When the court is not satisfied, the case will proceed to a hearing before a different judge and any amount ultimately approved or awarded by the court will then go into the Courts Service, to be managed until the child in 18. I have read about such developments. It would be a serious matter if an insurance company could settle such claims directly.

Deputy Flanagan mentioned a scenario about which I have concerns, namely, when someone is injured. Someone could come to one's hospital bed or home to make an offer within two or three weeks of an accident. If it looks good, perhaps €15,000 or €20,000, one might decide to accept it. At present, the incentive is to do so. However, two years later one may be attending physiotherapists, be out of work with a bad back or be obliged to see an orthopaedic surgeon. Where does it end? This is a oneway road. This is a genuine point as I no longer carry out as much work of this nature as heretofore, because I do not have time.

This road is oneway. I am disappointed with the trade union movement. It represents workers in the industry and I have not heard a squeak out of them. Workers are involved. Why should it be that local authorities, big business and so on can have the best brains in the business representing them, while the Minister proposes that people should take the chance by going to court? If one is awarded a cent less than one's offer, one is banjaxed. This is what the Minister proposes and he is providing no discretion.

I will not go into the opinion offered by Gerard Hogan. As I told Deputy Quinn this morning, I was not aware of it. However, I refer to the retrospectivity of this measure. It cannot stand up and the Minister should withdraw sections 51B(1) and 51B(2). The Minister proposes to implement a measure that is unconstitutional.

I cherish a couple of things, namely, the Constitution and the independence of the Judiciary. I am very proud of them and in that context, I urge the Minister to re-examine this Bill.

See this speech in context