Thursday, 11 July 2019
Department of Justice and Equality
396. To ask the Tánaiste and Minister for Justice and Equality the consequences for lawyers and legal advisers for bringing fraudulent personal injury cases to court; and if he will make a statement on the matter. [31428/19]
The rights and obligations of solicitors, who are deemed to be officers of the court, derive from section 78 of the Judicature (Ireland) Act 1877 along with section 61 of the Courts (Supplemental Provisions) Act of 1961. Substantial rights and duties accrue, therefore, by virtue of this relationship. The Superior Courts have an inherent supervisory role over solicitors including, particularly, the High Court, which can impose sanctions for professional misconduct up to and including the striking off of any solicitor concerned. This is to ensure that solicitors comply with their ethical obligations and act with the highest standards of conduct while also allowing the court to discipline or penalise solicitors who have failed in their duty to the court. The court therefore relies on solicitors to comply with their duties and to take careful instructions from their clients, to prepare their pleadings carefully, and to represent their client as best they can while complying with their duties to the court of candour and disclosure.
Similarly, barristers have a duty to the court. Under the Professional Code of the Honorable Society of the King's Inns it is the duty of barristers to act at all times with honesty and integrity and not to engage in conduct which is prejudicial to the administration of justice. They are also obliged to comply with the provisions of the Legal Services Regulation Act 2015 and any relevant code issued by the Regulatory Authority. Specifically, barristers have an over-riding duty to the court to ensure, in the public interest, that the proper and efficient administration of justice is achieved and they must assist the court in the administration of justice and must not deceive or knowingly mislead the court. The Code of Conduct of the Bar of Ireland also provides that a barrister shall not knowingly make, procure or countenance the making of any false or misleading statement of fact, whether express or implied, written or parol, with regard to any matter in which the barrister is engaged to any court or other body.
It should be noted, therefore, that the courts supervision of these matters is in addition to those broader measures that also apply to solicitors and barristers in the conduct of their business under their respective professional regulatory regimes. These are matters which will fall, to a growing extent, to the Legal Services Regulatory Authority which will come into substantial operational mode in this area from October 2019. This will happen under Part 6 of the Legal Services Regulation Act 2015 which I will be commencing at that time. The Authority will then deal with disciplinary and conduct matters in relation to both solicitors and barristers. This will be bolstered by the separate establishment of the new Legal Practitioners' Disciplinary Tribunal which will address serious misconduct in relation to both solicitors and barristers - including in terms of their possible striking off or disbarment with the approval of the High Court.
As I have set out , there are serious consequences for any legal practitioner who may be found to have acted in contravention of those duties owed to the court, including as the Deputy has raised, where this may involve an element of fraud. I would also point out that this is without prejudice to any investigation of such fraudulent matters by the competent authorities under the criminal law.
I would like to thank the Deputy for raising this matter again. On 6 February 2018, in response to parliamentary question 65, I advised the Deputy that my Department had established a Working Group to progress the action points raised under recommendation 25 of the Cost of Insurance Working Group's Report on the Cost of Motor Insurance, i.e. the establishment of a fully functioning integrated insurance fraud database for industry.
This Working Group continues to meet in order to establish an appropriate mechanism whereby insurance companies can share information to assist in the combatting of fraud. However, data protection-related issues have dominated the group’s deliberations and ultimately have made it impossible to establish the database by the end of 2018, as had been scheduled.
The Working Group has engaged in discussions with the Office of the Attorney General, the Office of the Data Protection Commissioner (ODPC), the respective UK bodies dealing with insurance fraud (the Insurance Fraud Enforcement Department and the Insurance Fraud Bureau), and completed a report which includes the recommended agreed parameters of the database, who is to be responsible, how it will be funded, and who will have access.
As noted last year, the application of the General Data Protection Regulation (GDPR) and the related Data Protection Bill will have a significant impact on any new data sharing arrangements between industry members and between the industry and An Garda Síochána. As such, the establishment of any new data sharing structures will require careful consideration against the changes to the legislative landscape. More generally, a critical balance will also be sought to ensure that data sharing between insurers is maximised while, at the same time, the data rights of the public are protected. Any changes, therefore, must be proportional to their effect.
The report of the Working Group was submitted to the Office of the Attorney General and the ODPC and in response, the ODPC strongly endorsed the group’s view that a detailed Data Protection Impact Assessment (DPIA) was required in order to answer outstanding concerns regarding the potential addition of new datasets to Insurance Ireland's existing InsuranceLink database, and the increased sharing of data.
The ODPC recommended that further work be completed to detail the evidential requirements for the creation of a new database or the enhancement of the existing InsuranceLink database. The benefits of such a database should be assessed against the potential harm or detriments that could occur to individuals and their fundamental rights. The Office of the Attorney General has also considered the Working Group’s report and further consultation will take place following the conclusion of the outstanding data protection matters.
In October last year, Insurance Ireland completed a DPIA in relation to matters such as the information currently held on InsuranceLink, as well as the specific additional data it is proposed will be shared, plus the additional circumstances under which the data will be shared.
Since receiving the DPIA, my officials conducted preliminary consultations with the ODPC, followed by more detailed consultations with the Department's internal Data Protection Support and Compliance Office (DPSCO). Subsequently, it was agreed by the Working Group (which met most recently in June 2019) that my officials would submit Insurance Ireland’s DPIA on InsuranceLink to the ODPC on behalf of Insurance Ireland. The DPIA was submitted to the ODPC, in accordance with Article 36 of the GDPR, on 14 June 2019 and a response is awaited.
Engagement will continue with the insurance industry to see if it is possible to develop an enhanced version of the existing industry database, with the management of the database to be with an independent, not-for-profit body. This approach will provide for complete and open access to the data held on the database for all existing and new entrant market participants.
Subject to consultation with the ODPC, the next phase towards implementation of recommendation 25 will require the identification of such an appropriate independent body to manage the database. These matters will continue to be monitored by the Cost of Insurance Working Group, who produce public-facing reports to track the progress of each recommendation on a routine basis: