Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I thank Deputies Cowen, Calleary and Michael Moynihan for setting out on behalf of Deputy Michael McGrath the proposals under the Civil Liability and Courts (Amendment) Bill 2019, which Deputy McGrath introduced as a Private Members' Bill last week. As Deputy Cowen mentioned, the Bill comprises three sections and proposes two amendments to the Civil Liability and Courts Act 2004 and one amendment to the Criminal Justice Act 1951.

I wish to state that the Government has decided not to oppose the Bill on the understanding that substantial amendments to it will be required and that there will be engagement with the Deputies opposite to seek agreement on those amendments. At the same time, the Government has noted that the Bill addresses matters that have been considered by the cost of insurance working group. As reflected in the setting up of that group, the Government recognises that we have a real challenge with awards inflation and claims inflation in the insurance sector along with the premium inflation that comes from them. At the same time, we have a highly profitable insurance sector, with the annual profits of our top ten insurance companies running at between €6.1 million and €201 million at the end of 2017. The total assets of insurance corporations are reported by the Central Bank to have been €305 billion at the end of last year. There is a role in this situation for insurers, too, including by taking a more concerted and solutions-based approach to resolving the fact that certain areas of risk are being commercially avoided across the sector to the detriment of vulnerable businesses and consumers. I listened to what the Deputies had to say about how this was an issue. I do not disagree.

Section 1(a) of the Bill proposes an amendment to section 26 of the Civil Liability and Courts Act 2004. This section provides that a court shall dismiss a plaintiff's personal injuries action in circumstances where the plaintiff or another person knowingly engages in the giving of false or misleading evidence unless the dismissal of the action would result in an injustice being done. This amendment would require the court, where it so dismisses an action, also to make an order that the plaintiff shall pay the legal costs of the defendant unless this would result in an injustice being done. However, section 26 of the 2004 Act deals with the issue of dismissal of a case on the basis of false or misleading evidence. It does this in respect of the relevant proceedings and any affidavit sworn in support of those proceedings under section 14 of the Act. The court shall dismiss an action in such circumstances "unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done". It is clear, therefore, that the avoidance of an injustice already runs to the root of section 26 as currently implemented and, to that degree, it is already aligned with the Bill. I accept that the proposed subsection is intended to avoid a situation where the Oireachtas might be seen to be instructing the courts on how justice is administered, but further work will be necessary if we are to be satisfied that this will not become the case if orders of costs are issued in the manner proposed.

Section 26 of the 2004 Act also needs to be read in conjunction with section 25, which makes it an offence to give or adduce false or misleading evidence in a personal injuries action.

It also makes it an offence to give, or dishonestly cause to be given, such an instruction or information to a solicitor, or a person acting on behalf of a solicitor, or an expert, as defined in section 25, in respect of a personal injuries action. For the purposes of section 25, the act is done dishonestly if the person does it “with the intention of misleading the court”.

Under section 1(b), the Bill proposes an amendment to section 29 of the Civil Liability and Courts Act 2004, which deals with offences under Part 2 of the Act. This Part of the Act relates to personal injuries actions and provides for offences relating to a verifying affidavit under section 14 and false evidence under section 25.

Section 2 proposes an amendment to section 4 of the Criminal Justice Act 1951. This amendment appears to duplicate the proposed amendment of section 29 of the Civil Liability and Courts Act 2004 in respect of fines and sentencing, as I have just described, and, as such, it may not be necessary. The Bill is, to some degree, a restatement of what is already happening to costs before the court in personal injuries cases. We need, therefore, to be careful of any undermining of the Statute Book that might result from restating powers the courts already have in one particular instance but not in others. Ultimately, the Bill would impose a requirement on the courts to make orders for costs, despite this being a matter for which there is some existing judicial discretion. I remind the House that, under the principle that costs follow the event, the courts have the power to award costs and have done so against a plaintiff at the discretion of the judge in many cases. The court also has the power to limit costs where a plaintiff brings proceedings in a court that does not have the lowest jurisdiction and can make differential costs orders by reference, for example, to a proportion of the costs, a date or steps in proceedings. A further important consideration is that the principle that costs should follow the event is being given greater legislative authority under Part 11 of the Legal Services Regulation Act 2015.

The wording of section 8 of the Civil Liability and Courts Act 2004 was recently amended to ensure that defendants in personal injuries actions are notified in writing of a claim within one month of the date of the cause of action. The section was also amended to require a court to draw inferences from a failure by a plaintiff to comply with this requirement and, where the interests of justice so require, require it to make no order as to the payment of costs to the plaintiff or to reduce such costs. Measures have been undertaken to increase the awareness of these obligations among relevant parties and the relevant rules of court have been updated.

In its report on the cost of motor insurance, published in January 2017, the cost of insurance working group reviewed sections 25 and 26 of the Civil Liability and Courts Act 2004. It noted that the number of recorded prosecutions and convictions for the offence of false evidence in section 25 is very low and that this suggests a need for further co-operation between the insurance industry and An Garda Síochána. On the basis that much more could be done by the insurance industry and other defendants to pursue allegations of insurance fraud, the framework for the reporting of alleged insurance fraud cases to the Garda authorities is being strengthened. The working group was satisfied that sections 25 and 26 did not need further review and went on to express its belief that for section 26 to achieve more effectively its aim of tackling personal injury fraud, there is a major onus on defendants to challenge misleading evidence, where appropriate, by taking the matter to courts rather than settling on the steps of the court for fear of an unsatisfactory outcome.

A number of Deputies sitting opposite me mentioned Garda involvement and Garda units. As the House will be aware, in December 2018, the Garda Commissioner indicated his preference that, in principle, An Garda Síochána should not be funded by any source other than the Exchequer in addressing the matter. That notwithstanding, the Commissioner has indicated that, taking into account factors such as the availability of resources and competing demands, he is examining an improved investigative capacity within An Garda Síochána to tackle this important area. I undertake to keep the House informed of that and I expect action on the part of the Garda Commissioner in the not too distant future.

A range of legislative and policy measures have been taken by the Government on foot of the work of the cost of insurance working group, its fraud round table, its legal subgroup and the Personal Injuries Commission, while a number of others are at an advanced stage of preparation. As shown even by those few examples I have given in response to the Bill, these mutually reinforcing measures have a particular focus on the area of insurance fraud and, as such, are strongly intended to augment the original policy objectives of sections 25 and 26 of the Civil Liability and Courts Act 2004. Any ongoing consideration of the Bill will have to satisfy these important objectives.

On the Judicial Council Bill 2017, I am pleased that in spite of some challenges in the Houses, we have completed Committee Stage and I expect a number of subsequent amendments to address further the matter of cost of insurance claims to be passed.

I will not take issue with any of the facts outlined by Deputy Cowen or other Deputies sitting opposite me in respect of the cost of insurance working group. I am, along with the Minister of State, Deputy D'Arcy, the Minister for Business, Enterprise and Innovation, Deputy Humphreys, and, to an extent, the Minister for Finance, Deputy Donohoe, very conscious of the issue and we welcome initiatives on the part of the Opposition such as the Bill. I assure Deputies Cowen and Michael McGrath that we will safely see the passage of the Bill on Second Stage at the earliest opportunity. We will be happy to engage with the Deputies opposite to ensure that any legislation we enact is constitutionally sound and legally robust. I welcome the opportunity for the debate. The House will have further opportunities in coming weeks to report progress on what is a difficult and challenging matter. It behoves us all to ensure, from both a resource and legislative perspective, that we do our best for people.

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