Rónán Mullen (Independent)
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Having listened to the contribution made by Senator Eugene Murphy, with which I agree, and the response made by the Minister of State, I was reminded of a line that may have been incorrectly attributed to the late Dr. Garret FitzGerald. He was reputed to have objected, on one occasion, to a policy measure on the basis that while it was all very well in practice that it would not work in theory.

As the Minister of State will be aware, the Personal Injuries Assessment Board, PIAB, was established in 2003 to try to divert personal injuries claims from the courts, reduce legal costs, reduce the pressure on the courts system and relieve upward pressure on insurance premiums. As we also know, to knowingly or recklessly give false statements in any court, either in direct evidence or by affidavit, amounts to perjury, which is a very serious offence that carries substantial sentences. The gravity of this offence is underlined in the Criminal Justice (Perjury and Related Offences) Bill 2018. It was originally sponsored by my former Seanad colleague, Pádraig Ó Céidigh, and I hope that the Bill will pass its final Stages in the House this afternoon. While the legislation deals with the situation in the courts, it is a remarkable fact that while the PIAB process was intended to be a substitute of sorts for the courts, there appears to be no legal penalty of any kind for making false or misleading statements in an application to the board for a claim of damages. In 2019, a total of 31,500 applications were made to the board and 11,500 awards were made. Approximately 20,000 applications were rejected by PIAB each year for the past several years as being unmeritorious for whatever reason and deserving of no award of damages. Therefore, PIAB rejects well over 60% of all applications each year.Nobody is suggesting all these rejected applications were false or misleading because there can be many factors involved in the rejection of a claim but, given the sheer number of rejected claims, it is difficult to believe all of them were based on the truth, the whole truth and nothing but the truth. Since personal injuries actions are regularly rejected by the courts based on false and misleading evidence, there is a likelihood that a substantial proportion of claims rejected by PIAB were based on allegations that were shown to be false or not wholly true. While perjury in a court of law runs the risk of prosecution and a serious penalty, there appears to be no penalty whatsoever in law for making a false or misleading claim to PIAB. The Personal Injuries Assessment Board Act 2003 and the very substantial amending Act in 2019 place no positive duty on claimants to tell the truth and do not even contain the words "false", "misleading" or "truthful", or any words like them. That is extraordinary given the onus of honesty that is correctly placed on applicants to other State agencies. The Nursing Homes Support Scheme Act contains stringent provisions against the making of false or misleading claims to the HSE. There is a penalty of up to three months in prison or a fine of €5,000 for knowingly or recklessly giving false or misleading information. When dealing with the Revenue Commissioners or the Department of Social Protection, applicants have to make regular and repeated commitments regarding the truth and accuracy of their applications. When getting a jobseeker's benefit or jobseeker's allowance, an applicant has to sign a declaration stating he or she is out of work and is a genuine claimant. This must be done every single week for which he or she collects the payment. Why on earth, therefore, is an applicant of PIAB not required to do likewise given that applicants are often making claims for tens of thousands of euro, or often hundreds of thousands?

Why is there no provision in law applying penalties for false or misleading statements to PIAB? Is the Minister of State aware of how many claims PIAB exposes as being false or misleading each year? How would he assess the knock-on effects of such claims on the work of PIAB and on insurance costs? As matters stand, any person can submit an application seeking damages that is a tissue of lies from start to finish but face no consequences for doing so. Does the Government have a reason for this? Will it justify further inaction?

James Browne (Wexford, Fianna Fail)
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I thank Senator Mullen for raising this important matter, which I am taking on behalf of Minister of State, Deputy Robert Troy, who unfortunately cannot be here this morning. PIAB is an agency under the remit of the Department of Enterprise, Trade and Employment that independently assesses claims for compensation arising from personal injuries. It can assess claims only where both parties, namely, the claimant and respondent, consent to an assessment. Under the PIAB process, a respondent has 90 days to carry out an appropriate examination of the facts relating to a claim before deciding whether to proceed with the PIAB process. By proceeding with the PIAB process, the respondent would have considered the claimant's case and satisfied himself or herself as to its merits or otherwise. Where liability is an issue, or the circumstances of a claim are disputed, the respondent, generally an insurer, will refuse an assessment of the claim by PIAB so he or she can investigate the matter. In those circumstances, PIAB will release the case and provide authorisation to a claimant to proceed to litigation if he or she so wishes.

PIAB does not investigate the circumstances of claims or address the issue of liability. This is because PIAB is not a court. It is an administrative body that assesses and makes awards for personal injuries based on the personal injury guidelines following consent of the parties and without recourse to court. The determination of liability is, by its nature, a matter of judgment for which a court is the appropriate body and for which a court can take into account the relevant matters presented to it by all parties.

Cases that proceed to court are subject to the Civil Liability and Courts Act 2004. Section 14 of the Act provides that any party to a personal injuries action who has falsely sworn an affidavit is guilty of an offence. Sections 25 and 26 address the matter of false evidence and fraudulent actions and section 29 sets out the penalties for persons found guilty of such acts, including fines of up to €100,000 or up to ten years in prison, or both.

The investigation of fraud is a matter for An Garda Síochána. Any individuals or companies that believe they are the victims of fraud should report it to the Garda. PIAB co-operates fully with any requests for information from the Garda.

The PIAB model, which is based on the consent of parties, works. It saves tens of millions of euro annually that would otherwise be paid in costs by the parties, and ultimately by policyholders. Through PIAB, claims can be settled without the need for many of the costs associated with litigation, which can contribute to the high cost of settling and the cost of insurance.

A range of actions to mitigate insurance fraud are set out in the Government's Action Plan for Insurance Reform. These actions are led, in the main, by the Minister for Justice. Of particular importance is the Criminal Justice (Perjury and Related Offences) Bill 2018, currently before the Houses and which I hope will pass through the Seanad today. When enacted, this will provide a deterrent to the making of misleading or fraudulent statements. It will be a welcome development, particularly regarding the cost of insurance.

As part of the action plan, the Minister of State, Deputy Troy, is currently finalising legislative proposals to enhance and reform PIAB and will engage with the Seanad on strengthening the PIAB process in the near future.

PIAB is not a court. It is an administrative body for assessing and either party can reject the process if he or she feels unsatisfied with it.

Rónán Mullen (Independent)
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I thank the Minister of State for his reply. Nobody ever said PIAB was a court. I accept that the Minister of State, Deputy Browne, is just a messenger for another Minister of State but, on a previous occasion, when Deputy Michael McGrath asked a parliamentary question on the same matter, the then Minister, Deputy Humphreys, at least stated baldly there were no penalties involved where false and misleading claims are made to PIAB. On neither occasion has the Government given a reason for this omission. The result is that somebody can place their lies on the roulette wheel of PIAB without even having to buy a chip. One can imagine a situation in which there is a conspiracy involving the person making a claim and somebody within an organisation. Why should there not be a penalty for putting false information before PIAB – false information which, for one reason or another, might not be properly denied or put in issue, as a result of which there would be a concession and acceptance of an award from PIAB? The reply that was given previously was very matter of fact and almost blasé but, in the context of the discussion on personal injury claims and insurance costs, which has raged in recent years, there is surely a jaw-dropping lacuna. There has been no action by the Government. There has been much political posturing about the cost of insurance in recent years. I have said here before that those involved often seem more interested in the rhetoric and grabbing headlines than in tackling the problem. Judges and the legal profession have been unfairly blamed. There was even a nonsensical kite flown about a potential constitutional amendment to cap awards. The Judicial Council guidelines on awards have come into effect, which is welcome, but I have concerns about some of the changes made that may see the victims of genuine injuries being short-changed owing to large cuts to the levels of awards. There is little indication, of course, that there will be a fall in insurance premiums. Regardless of all that, it is inexcusable that successive Governments and Oireachtasí have left this gaping hole in the PIAB regime unplugged.

James Browne (Wexford, Fianna Fail)
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There is not a gaping hole and there is no lacuna. It is on purpose. PIAB is an administrative body and both parties voluntarily enter its process to try to resolve the matter as quickly as possible without resorting to litigation. If we were to introduce what the Senator is proposing, we would effectively turn PIAB into a quasi-judicial body.

Rónán Mullen (Independent)
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No, we would not.

James Browne (Wexford, Fianna Fail)
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Parties would then effectively expect to have to be legally represented, which would only increase costs significantly. It is a process in which it is hoped that both parties will engage openly and honestly to resolve the matter in question, if possible. If an insurance company believes an applicant is in any way being untruthful - companies have their own resources to make these assessments - it can simply reject any assessment and take the matter to court, where the full force of law is available to address any falsehoods or lies. If the Senator's proposal were to be implemented, PIAB would become a more complex, quasi-judicial body and would serve only to increase costs.

Rónán Mullen (Independent)
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No, it would not. If there are lies-----

James Browne (Wexford, Fianna Fail)
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It is not a lacuna. It is on purpose.