Plewa & Giniewicz v Personal Injuries Assessment Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan,
• Judgment Date: 19 October 2010
• Neutral Citation: [2010] IEHC 516
• Docket Number: [Nos. 1128 and 1385 J.R./2008]
• Court: High Court
• Date: 19 October 2010

Plewa & Giniewicz v Personal Injuries Assessment Board

JUDICIAL REVIEW

BETWEEN

GRZEGORZ PLEWA AND KRZYSZTOF GINIEWICZ

APPLICANTS

AND

PERSONAL INJURIES ASSESSMENT BOARD

RESPONDENT

[2010] IEHC 516

[Nos. 1128 and 1385 J.R./2008]

THE HIGH COURT

PERSONAL INJURIES ASSESSMENT BOARD

Legal costs

Solicitors' fees - Legal advice - Recommendation - Reduction of 60% of fees claimed in related case - Power to recommend payment of fees claimed by applicant to be paid by defendant - Fees and costs reasonably and necessarily incurred - Polish nationals - Costs of application - Translation service - Cost medical report - Whether respondent failed to comply with statute - Whether breach of fair procedures - Whether unlawful fettering of discretion - Unreasonableness - Objective bias - No entitlement to legal costs - Duty to give reasons - Absence of itemised bill - O'Brien v Personal Injuries Assessment Board [2008] IESC 71 [2009] 3 IR 243, R v Chief Constable of North Wales Police, ex p Evans [1982] 1 WLR 1155, O'Keeffe v An Bord Pleanála [1993] 1 IR 93, Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 [2010] 2 IR 701, Keegan v Stardust Victims' Compensation Tribunal [1986] IR 642, Ryanair v Flynn [2000] 3 IR 240, Mishra v Minister for Justice [1996] 1 IR 189, McCarron v Kearney (Unrep, SC, 11/5/2010) and O'Donoghue v An Bord Pleanála [1991] 1 ILRM 750 followed - Personal Injuries Assessment Board Act 2003 (No 46), ss 7, 29, 30, 44 and 51A - Relief refused (2008/1128JR & 2008/1385JR- Ryan J - 19/10/2010) [2010] IEHC 516

Plewa v Personal Injuries Assessment Board

Facts The applicants were Polish nationals who had submitted claims to the Personal Injuries Assessment Board (PIAB) through solicitors. The PIAB made an assessment in respect of each applicant and allowed for fees claimed in relation to the costs of the application, a medical report and the translation services. In the case of the first applicant the Board had refused to allow any of the fees claimed and in the case of the second applicant had allowed 40% of the legal fees claimed. Judicial review proceedings were instituted on the basis that the Board acted unreasonably and in breach of its obligations under the Personal Injuries Assessment Board Act 2003, as amended. It was also contended that certain public statements members of the PIAB had made demonstrated that the Board had pre-judged the issue of costs before it had considered the applicants' claims and had shown objective bias. It was submitted that the PIAB had not exercised its statutory powers correctly, had failed to give reasons for the refusal of the full amount of legal fees claimed and the reasonableness of the decisions was challenged.

Held by Ryan J in dismissing the application for judicial review. There was nothing wrong with the PIAB setting out a policy in relation to legal fees. In each case the Board considered the application for an assessment by reference to the supporting documents submitted and it came to a decision as to the reasonableness and necessity of the fees claimed; based on the information before it. There was no evidence that the Board's policy disabled it from awarding legal fees that were considered to have been incurred reasonably. There was a real inconsistency in the complaint made by the solicitors that the Board had not give them reasons for reducing their costs, in circumstances where the solicitors themselves had provided no solid information as to how those costs were justified. No itemised bill had been provided by the solicitors in either case. Board members of the PIAB had not expressed the position that legal advice was never required or that no award was ever made in respect of legal fees. No informed observer would reasonably infer objective bias from the transcript of the evidence produced (evidence from an Oireachtas Committee meeting).

Reporter: R.F.

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S44

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 PART II

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S51A

PERSONAL INJURIES ASSESSMENT BOARD (AMDT) ACT 2007

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 PART II CHAP 2

CIVIL LIABILITY & COURTS ACT 2004

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S44(3)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S7

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S29

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S30(3)

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD 2009 3 IR 243 2009 2 ILRM 22 2008/48/10322 2008 IESC 71

R v CHIEF CONSTABLE OF NORTH WALES POLICE, EX PARTE EVANS 1982 1 WLR 1155 1982 3 AER 141

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

RYANAIR LTD v FLYNN & MCAULEY 2000 3 IR 240 2001 1 ILRM 283 2000 ELR 161 1999/22/7306

MISHRA v MIN FOR JUSTICE & ORS 1996 1 IR 189 1996/13/4227

MCCARRON v SUPERINTENDENT KEARNEY 2010 3 IR 302 2011 1 ILRM 237 2010/31/7813 2010 IESC 28

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

SOLICITORS (AMDT) ACT 1994 S68

O'CALLAGHAN & ORS v JUDGE MAHON & ORS (PLANNING TRIBUNAL) UNREP SUPREME 30.3.2007 2007/47/9902 2007 IESC 17

Mr. Justice Ryan,

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 Act2003, as amended. Leave was granted by Peart and MacMenamin JJ. by orders of the 13^th October and 8^th December, 2008 respectively.

2 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.

4 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 8^th December, 2005 in which he suffered a skull fracture and other injuries with serious sequelae. Mr. Giniewicz was involved in an accident on the 26^th 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%...