Phil Hogan (Carlow-Kilkenny, Fine Gael)

Fine Gael supported the setting up of the Personal Injuries Assessment Board but we cannot support this Bill. It was the Fine Gael Party that first called for a mechanism to be put in place that would lead to reduced charging by the various intermediaries that were in place in order to speed up the processing of those claims in a less costly manner. Ultimately, we got the Government to act but a legal and perhaps constitutional principal is being trampled on here.

As has been spelt out, the purpose of the Bill is to provide for a situation where a claimant rejects a PIAB assessment that has been offered and where they fail to win more than the amount offered by the board when they go to the courts. I understand the logic behind that. Nobody wants to encourage frivolous claims. We co-operated with the House on the Civil Liability Bill when the Minister for Justice, Equality and Law Reform brought that Bill forward in 2005 to deal with some of the exaggerated claims. Nobody wants to tie up the time of the courts unnecessarily or add to the costs incurred by businesses and employers. This Bill, however, is a serious step in terms of the rights of citizens, aiming as it does to restrict through discouragement the exercising of the legitimate democratic and legal rights of citizens.

I want to quote directly from representatives of the Government at the time of the passing of the original legislation in 2003. It is in the context of that debate, and the undertakings Ministers gave at the time, that we raise some objections today. The then Minister for Enterprise, Trade and Employment, Deputy Mary Harney, on Second Stage in the Seanad stated:

"I am convinced the introduction of the PIAB, as well as the other reform initiatives being undertaken by the Government, will lead to a properly functioning market that will attract new entrants into the market and provide the much needed competition to drive premia down further".

There have been no new entrants into the market. While premiums could always be lower, the PIAB has done great work in helping to reduce costs but where is the evidence that people going to the courts are doing otherwise?

The Minister of State, Deputy Michael Ahern, the then Minister for State in the Department of Enterprise, Trade and Employment, at the end of that debate, stated:

The PIAB is not designed to deny people's access to the courts nor their entitlement to seek independent legal advice. The priority for the PIAB will be to implement fair procedures in accordance with the principles of natural justice as they apply in this "documents only" procedure.

He went on to state: "At the end of the Personal Injuries Assessment Board process, the parties are entitled to reject the award if they consider they would secure a more favourable outcome through the courts system". Why has there been a U-turn on that?

We were told also during the course of that legislation that the legal advice from the Attorney General to the Government would ensure there would not be any necessity to have a client take a case to the courts in respect of getting their costs restored if they used the services of a solicitor or a barrister for the purpose of presenting their case to the PIAB. The whole idea behind the setting up of the PIAB was to ensure the legal people and all of the other people would not be necessary. In other words, the process would be so simple, people would not need the help of a solicitor to draw up an application to the PIAB. That did not happen because in the O'Brien case Mr. Justice MacMenamin ruled that access to justice for the citizen was important and that what the Government had tried to do, despite the legal advice and assurances we got, was to take away the rights of the citizen to go to the courts, in denial of what the Minister of State, Deputy Ahern, had said in the course of the conclusion of that debate.

Another Minister made a contribution at that time. The former Minister of State at the Department of Justice, Equality and Law Reform, Deputy Frank Fahey, in the Dáil debate, stated:

It has also been alleged that respondents will consent to a case going to assessment with the full intention from the outset of rejecting the award and fighting liability in court. This makes no financial or tactical sense. Why would a respondent waste fees on the PIAB and then incur litigation costs? Delaying a case never operates to the advantage of the respondent but always enhances the value of the claim with the passage of time, which hampers rehabilitation.

That is what we are arguing today. There is no incentive for anyone trying to play the system to go to the PIAB with the intention of taking a frivolous claim to the courts. Only when there is a legitimate concern at the decision reached by the board would a decision to proceed to the courts follow.

It should not be forgotten that in its rush to tackle the little guy the Government is ignoring the massive profit increases for insurance companies since the introduction of the PIAB. We were told the savings the PIAB would accrue would be passed on to consumers. That was the rationale behind this Bill being introduced and the co-operation of the Opposition on that in terms of the benefit to the consumer. In 2005, the profits of insurance companies amounted to €418 million, an increase of 26% on the previous year, while the savings that have accrued from the PIAB amounted to 1.8%. The various savings from the PIAB are going into the hands of insurance companies rather than to the consumer.

Britain has seen the bonanza profits made as a result of the changes to the claims regime in Ireland and is begging the Government there to follow suit.

While I am on the subject of the big guy versus the little guy, I need not remind the Minister of a case that has been brought to my attention. It involves a 78 year old widow from Limerick who was offered €14,000 from the PIAB in an action she took against Bus Éireann in 2004. Bus Éireann fought the case and she went to court where she spent a day and a half in the witness box. The court awarded her €40,000. If we enact this legislation that lady will get €14,000 in a similar case. She will not have the prospect of going to court to get €40,000.

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