David Stanton (Cork East, Fine Gael) | Oireachtas source

I thank Deputy Jim Daly for raising this subject, which affords me, on behalf of the Minister for Justice and Equality, Deputy Frances Fitzgerald, the opportunity to inform the House of recent developments in this area. The Minister has asked me to make it perfectly clear at the outset of this debate that the courts are subject only to the Constitution and the law, and are independent in the exercise of their judicial functions. The conduct of any court case, including the determination of liability between the parties to an action concerning a personal injury, is a matter entirely for the presiding judge and the Minister has no function in this matter.

That being said, I wish to draw the Deputy's attention to a number of initiatives in the general area of compensation for personal injury. The civil liability (amendment) Bill is currently being drafted. The Department of Justice and Equality has undertaken an intensive policy analysis and consultation process with the Department of Finance, the Department of Public Expenditure and Reform, the Department of Jobs, Enterprise and Innovation, the Department of Health, the Office of the Attorney General and the State Claims Agency in the development of these legislative proposals, with the objective of designing legislation which could cover all instances of catastrophic injuries and not just those arising in respect of State defendants.

The components of the proposed legislation are as follows: the court would have the possibility to make periodic payment orders for catastrophically injured plaintiffs who require life-long care and attention; the decision to make a periodic payment order would be at the court’s discretion, following consultation with the parties and having considered the needs of the claimant; payments would be indexed to the Irish harmonised index of consumer prices and reviewed at five-yearly intervals; the periodic payment orders could be changed at specified times to accommodate changes in the plaintiff’s circumstances, such as the move into full-time education; and the existing limits in the insurance compensation fund would not apply in cases of periodic payment orders and, consequently, where an insurance company became insolvent, the full amount due to a periodic payment order plaintiff would be paid in full from the insurance compensation fund. Work is progressing well on this Bill and the Minister expects to be in a position to publish the draft Bill in the next session of the Oireachtas.

In addition, the Legal Services Regulation Act 2015 includes provisions relating to the making of regulations for pre-action protocols in cases of clinical negligence actions. Work has begun in the Department of Justice and Equality on framing these regulations, which are aimed at encouraging timely communications between parties and the early resolution of such actions. The Deputy may wish to note that the Legal Services Regulation Act also contains a number of measures relating to legal costs, including the following: the establishment of a new Office of the Legal Costs Adjudicator to replace the existing Taxing Master's office; the introduction of new rules relating to the charging of types of fees by legal practitioners and advance notification of costs to their clients; and the introduction of a system of public complaints about all legal practitioners, including complaints as to costs, which are to be dealt with for the first time by an independent statutory authority, the new Legal Services Regulatory Authority.

The mediation Bill, which is currently being drafted in the Office of the Parliamentary Counsel, will introduce an obligation on solicitors and barristers to advise any person intending to commence legal proceedings to give consideration to using mediation as an alternative means of resolving disputes. It is intended that this will help to reduce recourse to the courts, as well as the costs and delays which may arise during court proceedings. The Bill will also provide that a court may, following the commencement of any such proceedings, on its own initiative or at the request of a party to the proceedings, invite the parties to consider mediation as an alternative option and suspend the proceedings to facilitate that process. The Minister expects to be in a position to publish this long-awaited Bill early in the next session.

In addition, the Minister understands that the then Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, met with Mr. Justice Peter Kelly, President of the High Court, on 29 January 2016. The purpose of the meeting was to discuss the current review of the book of quantum. It is understood the Personal Injuries Assessment Board hopes to have the revised book of quantum ready as soon as possible. It should be noted that the book of quantum is not a recommendation for compensation levels but rather a reflection of the prevailing level of awards, that is, compensation values awarded by the courts, settlements agreed by the insurance industry, settlements agreed by the State Claims Agency and settlements agreed through the Personal Injuries Assessment Board process.

To conclude, I want to reiterate my opening statement that the determination of liability between the parties to an action concerning a personal injury is a matter entirely for the presiding judge. The Minister believes that the separation of powers between the State and the Judiciary is a fundamental feature of the judicial system in this country and should remain so. The Minister has no plans at present to legislate for rebalancing liability between parties to an action concerning a personal injury.

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