Skeffington v Ireland and the Attorney General
| Jurisdiction | Ireland |
| Judge | Ms. Justice Pilkington |
| Judgment Date | 19 May 2020 |
| Neutral Citation | [2020] IEHC 296 |
| Docket Number | [Record No. 2009/11641 P.] |
| Court | High Court |
| Date | 19 May 2020 |
AND
[2020] IEHC 296
Pilkington J.
[Record No. 2009/11641 P.]
THE HIGH COURT
Declaratory relief – Personal Injuries Assessment Board Act 2003 s. 51B – Constitutionality – Plaintiff seeking declaratory relief – Whether s. 51B of the Personal Injuries Assessment Board Act 2003 is unconstitutional and/or incompatible with the European Convention on Human Rights
Facts: The plaintiff, Ms Skeffington, applied to the High Court seeking a declaration that s. 51B of the Personal Injuries Assessment Board Act 2003, as amended, is unconstitutional and/or incompatible with the European Convention on Human Rights. The plaintiff’s essential complaint was that, having incurred fees and expenses in connection with her Personal Injuries Assessment Board application, such fees and expenses were not recoverable on the subsequent taxation arising from her personal injury action, nor was the amount recoverable pursuant to the 2003 Act itself.
Held by Pilkington J that she was not satisfied that s. 51B operates as a breach on a claimant’s constitutional right of access to the courts, her right to obtain effective legal assistance and the constitutional requirement for the proper administration of justice.
Pilkington J held that the declaratory reliefs sought within paragraphs 1 and 2 of the Statement of Claim would be denied.
Reliefs refused.
In these proceedings, the plaintiff seeks a declaration that s. 51B of the Personal Injuries Assessment Board Act, 2003, as amended (the “2003 Act”) is unconstitutional and/or incompatible with the European Convention on Human Rights.
The background facts and circumstances of this matter are relatively uncontroversial and, indeed, most pertinent facts were agreed. Accordingly, the matter proceeded before the court in the absence of any oral evidence.
The plaintiff was involved in a road traffic accident on or about the 24th day of November, 2007.
By open letter dated 17th April 2008, AXA Insurance Ltd on behalf of the defendant accepted full liability.
In accordance with the standard statutory requirements within the 2003 Act, which are recited below, on the 15th day of May, 2008, the Plaintiff made an application, pursuant to s.11 of the 2003 Act. On the 22nd October 2008 a schedule of special damages was also sent to the Personal Injuries Assessment Board ‘(PIAB’) by Callan Tansey Solicitors, who were and remain the plaintiff's solicitors.
On the 30th April, 2009, in a letter to the plaintiff's solicitors, PIAB confirmed their assessment of the plaintiff as follows:-
(a) an assessment in the sum of €19,160; and
(b) a further sum of €350 which it stated had been allowed towards the fees and expenses “reasonably and necessarily incurred by Ms. Skeffington in making the application to the Board”.
The letter also states:-
“If both Ms. Skeffington and the respondent agree to accept the assessment, we will issue an “order to pay”. This “order to pay” has the same status as a court decree.”
The formal notice issued on 30th April and states as follows:-
“If you accept the assessment and if the assessment is accepted or deemed to be accepted by the respondent(s),
The respondent(s) shall be obliged to pay to you, in addition to the amount of the assessment, an amount of €350 being the fees or expenses that, in the opinion of the Board have been reasonably and necessarily incurred by you in complying with the provisions of the Act or any rules made thereunder in relation to the claim.”
By letter dated 15th May, 2009, the plaintiff's solicitors enclosed a standard rejection form signed by the plaintiff and seeking the authorisation to enable her to issue court proceedings.
On 21st May, 2009, the authorisation pursuant to s. 32 of the PIAB Act issued on the following basis:-
“As the assessment has not been accepted by both parties, we attach an authorisation which will permit the claimant to take legal action to resolve her claim if she so wishes.”
The application, assessment and authorisation procedure, as set out above, is now well known and well-established.
To continue the narrative, the plaintiff issued her personal injury summons on the 26th November, 2009 [2009/ 10700P] and shortly thereafter the above entitled proceedings issued on the 22nd December, 2009.
The personal injury proceedings proceeded, uneventfully, with a notice of trial issuing on the 6th December, 2010. By notice of tender offer dated 5th April, 2011, an amount of €40,701.00 was tendered, that sum was accepted by the plaintiff and accordingly the matter did not proceed to trial.
Within the present proceedings, the plaintiff had originally sought to challenge the constitutionality of ss. 51A and 51B of the 2003 Act. The fact that she obtained a greater award than the PIAB assessment, necessitated the plaintiff's formal confirmation that, within these proceedings, she was restricting her claim to matters relating to s. 51B.
The plaintiff's essential complaint is that, having incurred fees and expenses in connection with her PIAB application, such fees and expenses were not recoverable on the subsequent taxation arising from her personal injury action, nor was the amount recoverable pursuant to the 2003 Act itself.
The notice of additional particulars of loss and damage furnished on behalf of the plaintiff, on 26th November, 2012 states that, pursuant to the provisions of s. 51B of the PIAB Act, 2003, the fees and expenses incurred by this plaintiff, which were not recoverable, total €2,627.30 and comprise:-
(a) The PIAB application fee of €50 (in fact it appears that this fee was, in fact, reimbursed within the assessment of her expenses claim in the sum of €350).
(b) Professional fees – a significant narrative is included which culminates in a fee of €2,000 plus VAT, together with certain other costs for postage and sundries of €13.00 plus VAT.
Within the defendant's reply to a notice to admit facts, whilst the sums themselves, as set out above, are not admitted, but, in respect of the broader issue of the entitlement to recover those sums pursuant to s. 51B of the 2003 Act, para. 2, of that reply dated 4th November 2013 is in the following terms:-
“2. This is a matter of law and not fact and is not admitted. Without prejudice to the foregoing, the defendant admits that s. 51B(2) provides that, in any taxation of costs no amount shall be allowed in respect of any fees or expenses incurred by a claimant in connection with a PIAB application other than fees or expenses incurred by a claimant in connection with a PIAB application other than fees or expenses referred to in sections 35, 44 or 45 of the Personal Injuries Assessment Board Act, 2003.”
Section 4 of the 2003 Act defines “civil action” as:-
“means an action intended to be pursued for the purpose of recovering damages, in respect of a wrong, for-
(a) personal injuries, or
(b) both such injuries and damage to property (but only if both have been caused by the same wrong) …”
The plaintiff's claim is clearly one seeking damages arising from personal injuries governed by section 4.
Section 12 makes it clear that unless and until an application is made to the Board under s.11 no proceedings shall be brought in respect of that claim. In short, a personal injury action such as this cannot be commenced before the courts unless there is an application to the Board and an authorisation issued on foot of that application.
Section 14 provides the procedure in respect of a respondent/defendant. If a respondent, in writing, within a specified time period, consents to the assessment being made or fails to state in writing whether or not he or she does consent, then the Board will, subject to ss. 17 and 18, arrange for that assessment to be made.
Alternatively, if a respondent does state in writing that he or she does not consent to the assessment being made, then the Board shall issue what is referred to in subs. 4 of s. 14 as an authorisation and is defined within that subsection as:-
“(4) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim.”
Section 20 of the Act defines “assessment” which means “an assessment of the amount of damages the claimant is entitled to in respect of the claim on the assumption that the respondent or respondents are fully liable to the claimant in respect of the claim”.
Accordingly, therefore, an assessment is made either when the respondent states that they wish for an assessment to be made or if they fail to respond at all.
Section 30 deals with what happens after an assessment is made. Essentially, having stated that the assessment is reduced to writing and served on both the claimant and the respondent together with a notice which requests:-
“(a) in the case of a notice served on the claimant, the claimant to state to the Board in writing within 28 days, or such greater period as may be specified by rules under section 46, from the service of the notice whether he or she accepts the assessment, and
(b) in the case of a notice served on a respondent, the respondent to state to the Board in writing within 21 days from the service of the notice whether he or she accepts the assessment.”
Section 31, in essence states that where a claimant fails to reply in writing and in response to the notice under s. 30 within the period specified as to whether or not the assessment is accepted, then that person will be deemed not to have accepted it. The position is the same in respect of the respondent pursuant to section 31(2).
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Butterly v Cullinane
...Thus the applicant's right of access to the courts is not engaged at an inquest. 9 . In Skeffington v. Ireland and the Attorney General [2020] IEHC 296 Pilkington J. considered the issues of the non-availability of legal costs in the PIAB process stating: “88. Of course, I accept this plain......
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Butterly v Cullinane
...the applicant’s right of access to the courts was not engaged at an inquest. Referring to Skeffington v Ireland and the Attorney General [2020] IEHC 296, Meenan J believed that an inquest is an “administrative process”. Meenan J refused the reliefs sought by the applicant. Reliefs refused. ......