Jim Daly (Cork South West, Fine Gael)
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The justice system works under the premise that justice is not only to be served but has to be seen to be served. There is disquiet among the people I represent, and no doubt among the people represented by the Minister of State, Deputy Stanton, and other Members, about rising insurance premia. It is not until such time people feel it in their pockets that they look around to see what is causing it. People are astute and quick to get to the bottom of things. There is particular disquiet around the perceived largesse of the awards coming from the courts in personal injury claims. I am well aware of the separation of the Judiciary and the Legislature. However, it only adds further fuel to people's concerns about whether anybody is watching this or if anyone is in a position to do anything about it.

Is anything being done about the level of awards and the massive amounts that appear to be awarded in the Irish courts on a daily basis? We only get a flavour of it in the news. A hotel owner made a very valid point to me recently in regard to a newspaper report of a €70,000 award to somebody who had slipped and cut their face. In the same court, on the same day, a person who had assaulted somebody got the Probation Act. His point was that the message this was sending was that if he assaulted somebody, he would get away with it, but as a manager of a hotel with responsibility and a duty of care, doing the best he can, he might have to pay €70,000 if somebody had the bad fortune to slip on his premises.

To be fair, it is more than a perception. It is time this House examined the legislation in order to rebalance liability. The day seems to be gone where people have a genuine responsibility for their own welfare. People seem to dream lotto numbers when, as some would see it, they have the good fortune to have a slip on someone else's premises. Despite all the health and safety, and the measures taken by owners and managers, particularly owners of public establishments, they have seen massive increases of 60% and 70% in their insurance premiums in the last year. Nobody is talking about this, whereas motor insurance has received a lot of attention.

People rightly ask questions about the awards. For example, an award for whiplash is typically €15,000 but, if it happens in England, it is €5,000, or that is what applied before they chose to leave the EU. I wonder whether the courts have become a bit trigger-happy. I accept the separation of the Legislature and the Judiciary applies to the apportioning of blame and to who is right and who is wrong. However, we can legitimately question the amount of the awards as it has nothing to do with the separation of powers. We should examine how much money is being awarded in the courts and on what basis.

I want to explore with the Minister, Deputy Fitzgerald, the possibility of bringing in legislation to rebalance liability and to ensure there is a personal responsibility and an onus on people. I ask whether this House can do something about the two issues of rebalancing liability and putting a check on the amounts being awarded in the courts, in order to ensure people are not being tempted to pursue claims.

David Stanton (Cork East, Fine Gael)
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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.

Jim Daly (Cork South West, Fine Gael)
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I thank the Minister of State for his response, although my fears are not allayed much further. We can all have a hands-off approach and I believe we are overly exercising the hands-off approach because of the separation between the Judiciary and the Legislature, of which I am well aware. As a House, we have an obligation in this regard. I am not suggesting for a second that anybody in the House gets involved in apportioning blame and deciding who is responsible for what - that is the job of the Judiciary. However, the law of the land is set by this House and, therefore, there is an onus on us, the Members of this House. I ask the Minister to review her approach, which is not to bring in legislation regarding the rebalancing of liability. It is an issue we should debate in the House. I believe legislation is necessary and that it would be of assistance to the courts, given we have become a bit trigger-happy, as I said earlier, in regard to the amounts of money that are being awarded. There is a lot of what many ordinary people on the street would call nonsense happening in the courts, with people making a lot of money out of a little misfortune. There is an on onus on the House in this regard.

In that vein, I respectfully ask that the Minister of State, Deputy Stanton, would go back to the Minister, Deputy Fitzgerald, to get the answer to three questions. First, can the sum of awards made in the Irish courts for each of the past five years be provided to me by the Courts Service, if it is possible to get that information, to see whether there is an increasing trend? Second, what reviews or benchmarking exercises are being undertaken by the Department to compare and contrast the awards in this jurisdiction with other jurisdictions? Third, will the Minister of State, Deputy Stanton, tell the Minister, Deputy Fitzgerald, that I earnestly ask that she review her decision not to introduce legislation, and that she would consider the introduction of legislation to rebalance liability in the case of personal injury?

David Stanton (Cork East, Fine Gael)
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I am dealing with this issue on behalf of the Minister, Deputy Fitzgerald, and I again thank Deputy Jim Daly for raising it. I have taken note of the three questions he asked and will forward them on and try to get the information to the Deputy as soon as possible. I pointed out that the civil liability (amendment) Bill is currently being drafted and should make a difference, the Legal Services Regulation Act is coming into force and the mediation Bill is also being drafted.

The Deputy has made a number of points regarding the rebalancing of liability between parties, and I will bring these to the Minister's attention.

The Deputy will no doubt take note of the many initiatives in the area which I have already outlined. It is important to stress that the doctrine of the separation of powers constitutes the basic framework of the Constitution and an incursion by one arm of Government into another's area of competence and authority is not and should not be tolerated. The Deputy has agreed with this and made the point on a number of occasions. The determination of liability between the parties to an action concerning a personal injury is a matter entirely for the presiding judge and should remain the responsibility of the Judiciary. The other initiatives that are on the way should help the points the Deputy has made and we will bring his message to the Tánaiste and Government.