As the UK Parliament considers the management of costs in litigation in England and Wales, Kennedys’ Dublin office assesses the impact in Ireland of the Personal Injuries Assessment Board. The Injuries Board is a statutory body set up in 2004 to deal with concerns of insurers and businesses about the spiralling legal costs associated with settling often straightforward personal injury claims. It aims to streamline the process of dealing with over 80% of claims where liability is not at issue. The Injuries Board deals with all personal injury claims except clinical negligence claims. It may refuse to deal with claims involving a substantial psychological element.
The process is as follows:
- Claimants bringing personal injury claims must first apply to the Injuries Board which will, if necessary, issue an authorisation to issue proceedings.
- The Injuries Board will assess claims where all parties consent. As a respondent, consenting to the Injuries Board assessing the claim is not deemed to be an admission of liability.
- The claimant completes a “Form A” - similar to an accident report form - which is submitted with a medical report and details of special damages.
- The respondent has 90 days to accept or reject the Injuries Board assessing the matter. If the respondent does not respond, then they are deemed to have accepted by default the assessment of the claim by the Injuries Board. If accepted, a fee of €850 is due to be paid by the respondent.
- The Injuries Board must process the claim within a nine month statutory period, subject to an extension to 15 months at its discretion.
- The Injuries Board may arrange to obtain up to date medical reports, as can the claimant and respondent. It will refer to a Book of Quantum, which provides a broad range of damages for various injuries (similar in principle to the Judicial Studies Board Guidelines).
- The Injuries Board will then award an assessment, setting out a sum for general and special damages plus a contribution for outlay and medical reports. Generally there is no amount awarded for legal costs, save at best a token amount. The claimant’s solicitor will recover their costs from the award given.
- The assessment, once accepted, can if necessary be enforced through the courts by the claimant.
An authorisation to issue proceedings is issued by the Injuries Board under three scenarios:
- A respondent declines to have the matter assessed initially.
- The Injuries Board cannot assess within the statutory time limits.
- The assessment is rejected by either party.
In 2010, over 75% of the awards made by the Injuries Board arose from motor liability claims, 11% from employer liability claims and 15% from public liability claims. Two thirds of the awards were for less than €20,000 including costs, with the average award in the low €20,000s.
The scheme has cut the cost of this type of litigation by substantially reducing legal costs. Insurers are in a position to claims manage the case during the process and save on their own costs as well. The process has shortened the length of time to bring claims to completion – down to an average of six months as opposed to 18 months to two years before it was introduced.
From our dealings with the Injuries Board on behalf of insurer clients, a number of concerns have been raised over the years:
- Insurers have expressed concerns over the level of awards made, though it must be remembered personal injury awards are higher in the Irish jurisdiction than in the UK.
- Reservations have been raised about the Book of Quantum, which has not been updated since the creation of the Injuries Board in 2004 and provides an often vague range of figures for certain injuries.
- Concerns have been raised about the relatively high fee charged by the Injuries Board to the respondent - €850 (which was recently reduced from €1,050).
- Others have expressed issues with the default acceptance of a claim where the respondent does not reply within the 90 day period. However, our experience is that the Injuries Board will accept a respondent declining after the 90 days.
Notwithstanding the above reservations, on balance the process does work better for low value, high volume claims. In lower value claims where liability is in dispute, an argument can be made to let the claim go to assessment so that the insurer can carry out further investigations into liability whilst the claim is processed by the Injuries Board. Once the assessment is made, the insurer can enter into negotiations with the claimant on the issue of liability and try to settle the matter before court proceedings are issued.
For more serious claims, the Injuries Board is less equipped to deal with cases where the long term prognosis and special damages are still undetermined within the statutory time frame given. In many cases the process becomes a stepping stone to the inevitable issuing of proceedings.
Insurers and claims managers can use the 90 day period to try and settle claims and avoid the Injuries Board fee. They can also try and settle during the assessment period or enter into further negotiations when the assessment is made but rejected prior to issue of legal proceedings. Claimants' solicitors tend to be receptive to settlements at these particular points.
By proactively managing the claim during the Injuries Board process, costs can be reduced and claims managed more effectively