Plewa & Anor -v- P. I. A. B., [2010] IEHC 516 (2011)

Docket Number:2008 1128 & 1385 JR
Party Name:Plewa & Anor, P. I. A. B.
Judge:Ryan J.
 
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THE HIGH COURTJUDICIAL REVIEW2008 1128 & 1385 JRBETWEENGRZEGORZ PLEWA AND KRZYSZTOF GINIEWICZ APPLICANTS ANDPERSONAL INJURIES ASSESSMENT BOARD RESPONDENTJUDGMENT of Mr. Justice Ryan, delivered on the 19th day of October, 2010 1. These are two applications for judicial review of decisions made by the respondent Board about solicitors’ fees. In the case of the first applicant, Mr. Plewa, the Board refused to include in its assessment any of the fees claimed by the applicant for legal advice and in the case of the second applicant, Mr. Giniewicz, the sum allowed was 40% of the legal fees claimed. The applicants claim that the Board acted unreasonably and in breach of its obligations under the Personal Injuries Assessment Board Act 2003, as amended. Leave was granted by Peart and MacMenamin JJ. by orders of the 13th October and 8th December, 2008 respectively.The Personal Injuries Assessment Board2. The Personal Injuries Assessment Board is, in effect, a kind of conciliation system for personal injury claims. A person who wishes to claim compensation for personal injuries is required by the Act of 2003, as amended, to apply to the Board before issuing proceedings. The procedure is that the claimant completes and submits a form with biographical details and some basic information about the circumstances in which he or she sustained the injuries (Form A) and must submit a medical report from his treating practitioner. If the allegedly responsible party (“the defendant”) agrees, the Board proceeds to consider the papers and to make a recommendation of a sum of money that it thinks sufficient to compensate the claimant for the injury (“an assessment”). The Board must also decide what fees and expenses claimed by the applicant should be included in the assessment that it proposes to be paid by the defendant. Under s. 44 of the Act of 2003, the Board has the capacity to recommend payment of fees or expenses, which can include legal costs which the applicant incurred “reasonably and necessarily” in complying with Part 2 of the Act of 2003. The defendant can choose whether to accept or reject the assessment, as can the claimant. If both sides accept the Board's assessment, the claim is disposed of on that basis without going to court and the defendant pays the sum assessed by the Board.3. An application to the Board has two possible outcomes. The first is that the Board does not proceed to make an assessment, or that the assessment is not accepted by one or other relevant party; in that case, the Board gives a certificate enabling the claimant to proceed in court. The second outcome is that the matter is disposed of by the payment by the defendant to the claimant of the sum assessed by the Board. One potential consequence should be noted. If a claimant rejects an assessment which the defendant has accepted, and if the case proceeds to court and the claimant recovers less in damages than the amount of the Board's assessment, the claimant may be penalised in costs pursuant to s. 51A of the Act of 2003, as inserted by the Personal Injuries Assessment Board (Amendment) Act 2007. The situation, in other words, is much the same as that which arises where a plaintiff has not accepted a lodgement paid into court in satisfaction of a claim but, after proceeding with the action, is not awarded more than the amount paid into Court.Background Facts4. The applicants are Polish nationals who were living and working in Ireland when they sustained personal injuries as a result of accidents. Mr. Plewa had a road traffic accident on the 8th December, 2005 in which he suffered a skull fracture and other injuries with serious sequelae. Mr. Giniewicz was involved in an accident on the 26th October, 2007 caused by his employer, although there was some question as to the identity of that entity or person. His injuries consisted of soft tissue damage.5. The applicants separately engaged the same firm of solicitors which conducted their business with the respondent Board on their behalf. The firm had contacts with the Polish community in Ireland and had on its staff a Polish legal executive who, in addition to his legal duties, acted as translator and interpreter for the applicants. The solicitors billed the applicant in each case for translation services and those costs were claimed as expenses that were “reasonably and necessarily” incurred pursuant to s. 44 of the Act of 2003. The process in each case resulted in an assessment by the Board which was accepted by the defendants. In both cases, the assessment included some of the expenses claimed including the costs of the application, a medical report and the translation services. However, in the case of Mr. Plewa, the Board awarded none of the legal fees claimed and in the case of Mr. Giniewicz it awarded just 40% of the legal fees claimed.Mr. Plewa’s Case6. Mr. Plewa’s solicitors submitted a completed Form A to the Board on behalf of the applicant in February, 2007. In August of that year, the Board notified the solicitors that the defendants had consented to the assessment of the claim, and enclosed a Schedule of Special Damages and a Loss of Earnings certificate for completion by the applicant’s solicitors.7. The solicitors furnished the completed Schedule of Special Damages to the Board in November, 2007 accompanied by a standard form covering letter intended for use in any case that goes to the Board. The letter states that legal fees have been reasonably and necessarily incurred by the applicant within the meaning of s. 44 of the 2003 Act and then sets out seven boxes to be ticked as appropriate. The following four boxes were ticked in the case of Mr. Plewa:-• The Claimant is a foreign national;• The Claimant has limited / no understanding of the English language;• The Claimant does not have any knowledge of the Law of Torts within this jurisdiction; and• The Claimant does not have a Law Degree and is not a qualified Barrister or Solicitor with particular expertise in the areas of personal injury litigation and the assessment of quantum for general damages in relation thereto.8. The other three boxes which were not ticked in the case of Mr. Plewa were:-• The Claimant has limited education and a limited capacity to interpret complex legislation and documentation, the meaning and import of which has serious consequences for his / her property rights;• The Claimant suffers from limited cognitive function and has difficulty in complying with the provisions of Part 2 of the PIAB Act and dealing with all matters arising therefrom and relies entirely upon the professional legal advice of his / her Solicitors; and• The Claimant is a minor.9. The appended Schedule of Special Damages was as follows:-• PIAB Application Fee - € 50.00• Cost of Medical Report submitted with Application - 325.00• Legal Advice Fee (including VAT) - € 2420.00• Translation and Interpreting Fee - € 350.0010. The solicitors enclosed a fee advice note listing the amount of € 2000 plus €420 VAT as a “Professional Fee”. Also enclosed were a fee note from the treating doctor and a fee advice note in the sum of € 350 for translation and interpreting services provided by the firm’s Polish legal executive; it is noted that it was he who had sent a letter of claim to the proposed defendant and his insurer in October, 2006 in Mr. Plewa’s case. Neither the solicitors’ fee note nor the interpreter’s fee note particularised the work undertaken for the fee charged.11. After a number of reminders from the Board, the solicitors also furnished a letter from Mr. Plewa’s employer with a completed Loss of Earnings certificate in May, 2008.12. The Board issued a notice of assessment in Mr. Plewa’s case by letter dated the 24th July, 2008. A substantial amount was awarded for general and special damages and €725 for fees and expenses, allocated as follows:-(1) Application Fee - € 50.00(2) Medical Fee - € 325.00(3) Translation Fees - € 350.0013. Thus, while the Board allowed the application, medical report and translation fees claimed without deduction, it allowed nothing for fees incurred for legal advice and services. How this came about was explained in an affidavit sworn by Mr. Maurice Priestly, Director of Operations of the Board:-“The said decision in respect of legal fees was made for and on behalf of the Board by three employees of the Board to whom the performance of functions under Chapter 2 of Part 2 of the 2003 Act is assigned (“the assessors”), one of whom was me, this Deponent. Before making that decision, the assessors carefully considered all of the documentation received by the Board in relation to the claim to ascertain whether there were any aspects of the claim in respect of which legal services and/or advice was reasonably and necessarily required by the Applicant for the purpose of complying with Part 2 of the 2003 Act and the Rules made thereunder. The assessors concluded that legal services and/or advice were not reasonably and necessarily required by the Applicant for the purpose of complying with Part 2 of the 2003 Act and the Rules made thereunder. Accordingly, in the exercise of the discretion of the Board pursuant to section 44 of the 2003 Act, no award was made in respect of them on assessment.”14. On the following day, the applicant’s solicitors requested the Board to clarify the reason for the omission of Mr. Plewa’s legal advice fee of €2420. The Board’s reply dated the 29th July, 2008 was in general terms, stating only that “Your comments are noted. The Board allowed fees and expenses, that in their opinion, were reasonably and necessarily incurred by Grzegorz Plewa”. By further letter dated the 30th July, 2008 the solicitors again requested the Board to set out the reasons for its decision on the legal fee claimed. On the following day, they furnished the Board with a “without prejudice” Notice of Acceptance.15. On the 7th August, 2008 the Board replied, stating:-“The Board did not consider that it was...

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