James Bannon (Longford-Westmeath, Fine Gael)

I thank the Leas-Cheann Comhairle.

Surely it is realistic to expect the Government to produce watertight legislation that will not waste our time or leave the door open to constitutional challenge. This is not to take from the work being carried out by the Personal Injuries Assessment Board, which was advocated and supported by Fine Gael, albeit with some reservations. However, our support cannot be extended to this Bill. It is unbelievable that any Government or its representatives would legislate to restrict the rights of its citizens to access the courts without regard for public consultation. Speaking on the original debate on the Personal Injuries Assessment Board in 2003, the then Minister of State at the Department of Enterprise, Trade and Employment stated: "The PIAB is not designed to deny people's access to the courts or to their entitlement to seek independent legal advice." It appears, however, this Bill not only adversely affects the rights of citizens but it may also force the introduction of other legislation to review and revise the operations of the assessment board. That would be the unfortunate result of the railroading of the legislation.

The Personal Injuries Assessment Board (Amendment) Bill 2007 seeks to curb a reported practice whereby a large percentage of claimants are rejecting PIAB assessments and taking their cases to court in the hope of securing larger settlements or awards. According to The Irish Times, this amounts to a figure of 40%. The route is made more attractive by media reports on claimants who were awarded legal costs. The important words here are "curb" and "practice". The Government is seeking through legislative means to impose a blanket ban on the recovery of costs in any subsequent litigation conducted by a solicitor in respect of work carried out in the course of the PIAB process. This is further compounded by section 51B(1) which interferes retrospectively with the right of a claimant to recover the PIAB element of costs in subsequent litigation. So much for the Government commitment to allow people to access the courts. The right of access to court is an inherent element of Article 6 of the European Convention on Human Rights and covers civil proceedings. Peter Leach has observed in Taking a Case to the European Court of Human Rights that the effective exercise of this right may create other obligations on the State, such as the provision of legal aid in civil proceedings where legal representation is made compulsory for certain types of litigation or simply because of the complexity of the procedure or the particular case.

The PlAB initially sought to minimise lawyer involvement in the new procedure by corresponding directly with claimants rather than their legal advisers. This policy was tested in the High Court in the case of O'Brien v PIAB 2005 and it was held by Mr. Justice McMenamin that the board had no statutory authority to exclude an applicant's legal adviser from the process.

An article in the Sunday Business Post on 1 July 2007 noted that the process of settling claims has changed hugely since the advent of the PIAB and stated:

"The new system was designed to help insurers reduce costs but an unfortunate by-product has been the way it has encouraged insurers to short-change consumers. Few outside the legal profession decry PIAB's professed aim of creating a lawyer-free zone, but the system has given carte blanche to the insurance industry to get the unsuspecting victims to accept settlements that are considerably lower than their true value."

In supporting the establishment of the PIAB, Fine Gael made the point that Article 34 of the Constitution prescribes that justice must be administered in courts established by law, by judges appointed under the constitution and in general must be administered in public. Where is the care we should be giving to personal injury victims? The Government has become so obsessed with reducing insurance premia that the rights of victims have simply been forgotten. The denial of their constitutional rights is just another way of leaving the average citizen adrift without the necessary recourse to viable options. Rather than rushing through this legislation, the Minister would be better advised to pause to consult the Attorney General because Fine Gael is tired of repeating that rushed and railroaded legislation is bad legislation.

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