Four years of the personal injuries assessment board: assessing its impact

• Author: Jonathan Ilan
• Position: PhD, Post-doctoral Researcher, Compensation Culture Project, School of Law, University College Dublin
• Pages: 54-77

Judicial Studies Institute Journal [2009:1

54

FOUR YEARS OF THE PERSONAL INJURIES

ASSESSMENT BOARD: ASSESSING ITS IMPACT

JONATHAN ILAN*

I. INTRODUCTION

Since the Personal Injuries Assessment Board (PIAB)

began operating in 2004, there has been considerable change and

controversy injected into Ireland’s personal injury claims regime.

Linked to wider measures designed to tackle a perceived runaway

“compo culture” and spiralling insurance premiums,1 PIAB was

specifically presented as a means of reducing the high levels of

legal costs associated with negligence claims.2 Debate over the

Board’s fairness and efficacy persists. Legal practitioners

maintain that its lawyer-sceptical ideology is a snub to the

legitimate rights of victims. As parties hold the option of retaining

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* PhD, Post-doctoral Researcher, Compensation Culture Project, School of

Law, University College Dublin. This work is part of the Compensation

Culture Project undertaken by the Schools of Law in University College

Dublin and the University of Strathclyde, funded through project grants from

the Irish Research Council for the Humanities and Social Science and the

Economic and Social Research Council. The author would like to thank Colin

Scott, Simon Halliday, Denis Cusack, Vincent Hogan and Anthony Kerr for

their comments on earlier drafts of the manuscript.

1 See Ryan, “The Impact of the Act on ‘Compensation Culture’: Big or

Small?” in Craven and Binchy (eds.), The Civil Liability and Courts Act 2004,

(Dublin: Firstlaw, 2004), p. 138.

2 As per then Minister for Enterprise, Trade and Employment, Mary Harney:

“The purpose of establishing this alternative mechanism is to reduce the cost of

delivering claims and expedite the delivery of a person’s entitlements …

The purpose of not providing legal costs or fees in this case is to reduce costs.

The Insurance Industry Federation informed us that €340 million, an incredible

sum, was paid in legal costs and fees, while IBEC stated in 2002 that personal

injuries were costing employers €2 billion, of which legal costs accounted for

€600 million. The PIAB will not hold oral hearings in which claimants will

have to advocate or someone will have to advocate on their behalf”. Debates of

the Select Committee on Enterprise and Small Businesses, Dáil Eireann, 10th

December 2003 (34 SESB1, No. 4). Available at http://www.gov.ie/

committees-29/c-enterprise/20031210/Page1.htm.

2009] Four years of the Personal Injuries Assessment Board 55

legal representation (albeit at their own expense) and to ultimately

reject awards in favour of initiating litigation, the Board’s impact

is inherently tied to public acceptance of the new paradigm.

This paper examines the publicly-available data on PIAB

and court litigation, which despite containing notable lacunae,

reveals a number of significant insights. Firstly, an analysis of the

outcome of PIAB applications will be undertaken. Secondly,

questions will be posed concerning the manner in which savings

of time and money have been calculated. Thirdly, rates of higher

court litigation will be reviewed to determine the Board’s impact,

and comparisons will be drawn between the adjudication of

compensation under the two regimes. Finally, the paper will

consider the media debate between the proponents of PIAB and

the legal profession, both to contextualise the manner in which

public data has been presented, and to comment on its possible

impact on the Board’s operational aspirations. Ultimately, it will

be argued that the Board seems to adjudicate principally on cases

that would previously have settled out of court. Due to a paucity

of data on the cost and expedience of cases settled privately,

it becomes difficult to draw precise comparisons between the old

and new regimes. PIAB’s claimed improvements must be read in

light of this caveat. In considering PIAB outcomes such as “early

resolution” and “rejected awards”, the paper will argue that there

is perhaps a more nuanced relationship between the legal

profession and the Board than previous media coverage might

suggest. Indeed, it will be argued that there may be enhancements

to the efficacy and equity of the PIAB process through enhancing

the formal role of legal representation within current practices.

II. BACKGROUND

The combination of the Personal Injuries Assessment Board

Act, 2003 (the “PIAB Act”), and the Civil Liability and Courts

Act, 2004, created a new personal injury litigation regime in

Ireland. The latter statute reformed litigation procedures,

introduced a system for the early notification of defendants,

reduced the limitation period for initiating actions from three

years to two, and introduced penalties designed to combat