Rónán Mullen (Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Cuirim fáilte roimh an Aire Stáit. I very much enjoyed the time he and I spent together on the parliamentary delegation to the Council of Europe. I understand he is not opposing this Bill. I commend him on his own proposal to introduce legislation on the Personal Injuries Assessment Board, PIAB. If the Government is minded in these more inclusive days to accord me the necessary Government time to get this small but significant Bill through the Seanad, I will have no objection to any amendment to change its Title to the Personal Injuries Resolution Board (Amendment) Bill. I wish my goodwill in respect of that idea to be noted at the outset.

To paraphrase a great writer, in the world of 2022, when misinformation seems to be rife, telling the truth can be almost a revolutionary act. It should not be so, however. Truthfulness and truth — be it legal, scientific, historical or moral — should be at the core of our laws and politics and how we organise ourselves as a society. Unfortunately, there are many aspects of our law where we do not insist on the truth, for whatever reason. One example of this forms the backdrop to my Bill.

At present, the Personal Injuries Assessment Board Act 2003, as amended, does not contain any requirement that information given to the PIAB in the course of an application for, or the assessment of, a claim for an award for personal injuries should be truthful. No penalties exist for giving false or misleading information to PIAB.

As we know, PIAB was established almost two decades ago to ease pressure on the courts by allowing personal injuries claims to be dealt with and settled without recourse to litigation, thereby avoiding unnecessary legal costs and delays. A claimant can apply to PIAB for an assessment of his or her claim for damages. The respondent, which is usually, but not always, an insurance company, can consent to that assessment. PIAB then decides whether to make an award, and the parties can choose whether to accept it. Once it is accepted, it becomes legally enforceable.

If at any stage both parties do not consent to the assessment process or agree to the suggested award, PIAB grants authorisation for the claimant to issue court proceedings in the normal way. PIAB has certainly diverted tens of thousands of personal injuries claims from the courts in its time, but it is by no means a perfect system. The number of applications received by PIAB that are not resolved deserves some scrutiny.

On average, PIAB receives 31,000 applications each year, which number was down to about 26,000 in 2020. Many thousands of cases do not result in an award. Does that mean some of the applications are unmeritorious or possibly false? It almost certainly does but the problem is that we simply do not know the numbers because, at present, it is not an offence to give false information to PIAB. As a result, PIAB is not required to report to the Minister on any such cases of false information that it may encounter. However, we would be naive to think every single application was based on the truth and the whole truth. This is particularly the case given that there is no legal sanction of any kind in the 2003 Act for submitting false or misleading information to PIAB. Claimants can take a punt on submitting a false claim, and unscrupulous respondents can take a punt on submitting false information to repel a genuine claim, without any risk of sanction. It is like getting to put a chip on the roulette wheel without even having to buy it.

Is there a lacuna in the law? There most certainly is. When this issue was first brought to my attention last year, I must confess I was sceptical, believing there must surely be some kind of penalty for those who tell lies to PIAB. There is not. Ultimately, it is not against the law to tell lies, but we have many examples of where untruths are prohibited by law. The laws against perjury have existed in common law since time immemorial and have recently been codified in statute law. Other examples, more relevant to the non-judicial set-up that PIAB involves, are applications for social welfare payments under the Social Welfare Acts and statements made in returns and applications to the Revenue Commissioners under the Finance Acts, in respect of which applicants are clearly and repeatedly told they may be prosecuted if their applications are not truthful in all material respects. Applicants for the fair deal scheme under the Nursing Homes Support Scheme Act 2009 also face prosecution for any material untruths in their applications. If the use of false information in each of these circumstances attracts a serious criminal sanction, why should providing false information to PIAB not be treated in the same way?

In addition to enacting the Personal Injuries Assessment Board Act 2003, the Oireachtas enacted the Civil Liability and Courts Act 2004, which applies serious penalties for making false claims for personal injuries before the courts. When one thinks about it, one finds it remarkable that these cases do happen. In 2017, Zurich and the Motor Insurers' Bureau of Ireland, MIBI, exposed an organised fraud by a group that took out insurance policies just prior to staging accidents. The point, though, is that if false statements in the course of personal injuries litigation in the courts attract such serious penalties — they attract up to ten years in prison and a fine of up to €100,000 — surely the use of false information in a claim to PIAB, or in defence of a genuine claim, should attract at least some kind of penalty? It does not, however.

If, as we see in cases that arise and are reported every so often, people are willing to make false statements in court, putting themselves at risk of perjury charges, can we seriously believe no false information is being given to PIAB if it can be given without sanction?

The text of my Bill is quite straightforward. It is short and almost self-explanatory. Under the 2003 Act, there are three main circumstances in which a person might find himself or herself submitting information to PIAB: making an application; providing further information or documentation in response to PIAB; and submitting information as a third party, such as an expert, to enable PIAB to assess a claim. As the legislation stands, there is no penalty for submitting false information. My Bill amends each of the relevant sections to include an additional subsection whereby a claimant or any other person who "knowingly gives the Board information which is false or misleading in a material particular is guilty of an offence."

Taking from the existing provisions in the Act regarding such events as it provides for, mainly acts of PIAB personnel that might be criminal, we are talking about the imposition on summary conviction of a fine not exceeding €3,000, or imprisonment for a term not exceeding six months, or both. These penalties will apply to each of the three new offences created by my Bill.

It is important to note that the amendments in the Bill would prohibit a person from "knowingly" giving the board information that is false or misleading. The other enactments I have referred to, including the fair deal legislation, make it an offence for an applicant to "knowingly or recklessly" submit false information. Therefore, what am I doing in my Bill? Without getting too far into the reeds of the matter, I believe colleagues will be aware that there is an important distinction in criminal law between an act that is committed "knowingly" and one that is committed "recklessly". An act committed "knowingly" means just that — an act committed deliberately, with full knowledge and foresight. An act committed "recklessly" has a different legal meaning. In layman's terms, it can include actions that are just rash or careless.Therefore, a test of recklessness creates a lower threshold to be met in order to get a conviction.

What this Bill aims to prevent is the deliberate use of false information, not information which might be submitted carelessly, rashly, naively or incorrectly. PIAB is intended to be a process which is engaged with by ordinary people without legal representation, even if in the great majority of cases solicitors are involved. Given the involvement of people who are sometimes not legally represented, I believe it would be wrong to include the lower threshold of recklessness because it might result in people being unfairly caught out for careless or inadvertent errors in their claims. To be caught by my legislation, one has to knowingly submit false information. What is needed is for people who deliberately submit false information to be held to account, and that is the reason the Bill has been drafted in this way.

It may well be the case that providing false information to PIAB could in certain circumstances, at least in theory, contravene section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001, which makes it an offence to "dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act...". If one intends to make a gain and one induces a person to do something or not do something by any deception, that is fraud. However, if this provision was in fact an effective tool against false information being submitted to PIAB, we would surely be aware of cases where prosecutions were brought. My office has not been able to find a single such case, and practitioners in this area to whom I have spoken are also not aware of any such cases.

Second, the provision I have just referred to would be of no use in the situation where knowingly false information is given but does not lead to a payment following a PIAB assessment. Third, false information by the respondents in PIAB claims may well not come under that section, since it might be a stretch to say that they are seeking to make a gain or cause a loss by submitting false information to defend a claim. They are just trying to prevent a loss to themselves in that situation. In other words, the legislation would not catch them for fraud.There may be situations where false statements are made at PIAB stage in an attempt to get a win there but later, when the case proceeds to court, the party mends its hand and does not repeat the false information there because of the perjury and other sanctions. In that situation, a person could get away scot-free as well.

Clearly, there is a lacuna in several situations and, quite possibly, even in situations where one might think the fraud legislation would apply, it is not workable. The 2001 Act, or the fraud legislation as I call it, therefore is a non-runner for dealing with a range of possible scenarios involving fraud, attempted or accomplished. The amendments proposed in my Bill bring about a clear and straightforward means of dealing with this problem, in that they prohibit knowingly false statements to PIAB under any of the scenarios I have outlined. The ultimate outcome of PIAB assessment, and therefore the issue of whether a gain or loss is caused by an award being made, becomes irrelevant.

I raised this in a Commencement matter in June 2021. The Minister of State at the Department of Justice, Deputy James Browne, told me there was no lacuna. He said that if we were to introduce what I was proposing, it would effectively turn PIAB into a quasi-judicial body. With the greatest of respect to him, expecting people to tell the truth in their dealings with PIAB does not turn PIAB into a quasi-judicial body, no more than expecting people to tell the truth in their dealings with the Department of Social Protection or the HSE would turn any of those bodies into quasi-judicial bodies. After all, neither PIAB nor any of those other bodies can impose sanctions on anyone for telling falsehoods. That responsibility rests with the Garda Síochána to investigate and ultimately the courts to decide.

There is a lacuna and this Bill proposes to close it. I do not pretend that PIAB is a perfect system. I know the Minister of State, Deputy Troy, is making an announcement today that he is getting permission from the Cabinet to develop and bring forward legislation, as I understand it, to give PIAB a role in mediation and in other matters that would strengthen and enhance its remit. That is very welcome. I believe he is also proposing that PIAB would have a role in co-operating with the Garda where information about fraud is made available to it. That is also welcome. What my Bill achieves, and what is not mentioned as I understand it from what I have read about his press release, is that it clearly creates an offence of knowingly providing false information. The fact that it does not exist at present is anomalous, having regard to the other examples I have given where it is an offence to supply false information knowingly, for example, in the social welfare context or to the Revenue Commissioners or in the nursing homes support scheme.

There are also questions about whether PIAB is aligned too much with respondents and the insurance industry. One will get a different account on that depending on who one talks to. PIAB's remit should surely be to assist genuine claimants to receive compensation they are entitled to outside of the court system. It is certainly not to assist insurers to resist claims. Any reduction in insurance premiums is welcome, and we should work hard for that, but that should only come through the elimination of fraud and the reduction of legal costs. Those are the issues we must examine closely. PIAB is not a quasi-judicial body; it assesses awards with the consent of both parties. It has no role in adjudicating on personal injuries claims. There have been calls for it to be given that power, but I am quite sceptical about that. Those calls sometimes come from business representative groups and we should scrutinise very carefully whose interests such a move would serve. We must keep the interests of ordinary people and genuine claimants at the forefront of this.

As I said earlier, truth has become something of a devalued currency in recent years. In spite of that, the vast majority of Irish people are honest. They would never dream of lying in any kind of application to a statutory body or in any other circumstance. When we can, we should always try to take people at their word. However, even that must have its limits, and that is why we have law. Applying to a statutory body seeking damages out of the pockets of fellow citizens, or seeking to avoid paying damages which are justly owed, simply has to be one of those situations. As they say in Russia, “Doveryay, no proveryay" - "Trust, but verify". Members might recall Ronald Reagan reminding Mikhail Gorbachev of that. In other words, we should take people at their word to the extent that we can, but we should have no fear about asking them to stand over their word, and no citizen should have any fear or complaint about being asked to do so. Telling the full truth to a body such as PIAB, on the basis of the facts as one has them, should never be portrayed or seen as, or felt to be, an intolerable burden.

I acknowledge that there are other lacunae in our law. It was also pointed out to me recently that the Judicial Council Act 2020 contains a similar lacuna to the one I am seeking to close today. With regard to the process for complaints against members of the Judiciary, there appears to be no penalty for including false information in such a complaint. I wonder why that is the case. Surely we should insist on truthfulness there too, especially when a person’s good name and professional reputation are at stake. I would have thought it would apply a fortiori that we should do so. I should also add, on a completely unrelated matter, that as the law stands only one third of all voters are asked to prove their identity with a photographic identity document at polling stations on election day. In this day and age, when photographic ID is required for the most mundane of reasons, especially in the last couple of years, is that acceptable? However, those are matters for another day and for other Bills.

The Oireachtas should have no reluctance about requiring people to tell the truth in their dealings with statutory bodies, and about having a system of enforcement in place that supports that fundamental concept. That applies all the more to any case where inaction could result in citizens having money taken out of their pockets through wrongful awards – with the resulting hikes in insurance premiums for all of us – or citizens having genuine awards denied them through deception and false statements being made.

For all those reasons, I ask the Minister of State to consider either incorporating this Bill in his legislation or, even better, joining me in asking the Government for the small amount of Government time it will take to get this small but significant and necessary Bill through the Seanad. I fear that the Minister of State's legislation might take some time given its greater scope and complexity. I commend this Bill to the House.