Constitutional and administrative law framework of the personal injuries assessment board

• Author: David Gwynn Morgan
• Position: Professor of Law, University College Cork
• Pages: 32-42

Judicial Studies Institute Journal [6:1

32

CONSTITUTIONAL AND ADMINISTRATIVE

LAW FRAMEWORK OF THE PERSONAL

INJURIES ASSESSMENT BOARD

DAVID GWYNN MORGAN*

I. THE ANATOMY OF THE BEAST

The Personal Injuries Assessment Board (PIAB) and the

structure into which it fits undoubtedly looks odd: and when any

legal or other official arrangement looks odd, the question

inevitably arises: is this novelty unconstitutional? But oddity is

not automatically unconstitutional; nor is bad policy or policy

which re-engineers the law more in favour of insurance

companies, necessarily unconstitutional. There is

unconstitutionality only if one can find some constitutional

principle which has been broken.

This oddness is exacerbated where a tribunal – which is

essentially what PIAB is - becomes involved. For tribunals are

anomalous beasties which do not fit well into any established

legal category. Moreover, PIAB is an obstacle in the path to court

and of all the parts of the Constitution, the ones about which the

law is most strict are those which protect the position and

independence of the courts.

The first issue which arises is the major structural provision,

concerning the judiciary, Article 34.1 which states in relevant

part: “Justice shall be administered in courts… by judges…”

There are two limbs to this. The first leg is that, as Article 34.1

states: only courts can ‘administer justice’. However, in my

opinion PIAB is not ‘administering justice’, if only because its

decision is not final and binding.1

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* Professor of Law, University College Cork. This article is based on a paper

delivered at a conference entitled ‘Civil Liability and the Courts Act 2004’,

University College Cork, on 22 November 2005.

1 For the gory details as to the meaning of the ‘administration of justice’, see

Hogan and Whyte, JM Kelly’s The Irish Constitution (Butterworth, 2003) at

pp. 610-29 and Morgan, Separation of Powers in the Constitution (Round Hall

Sweet & Maxwell, 1997), Chapter 4.