Supreme Court dismisses appeal; PIA Board cannot exclude legal representation in personal injury claims under 2003 Act.

THE SUPREME COURT

Record No. 169 & 170/2005

Murray, C.J.

Denham, J.

Macken, J.

Between/

DECLAN O’BRIEN

Respondent/Applicant

-and-

PERSONAL INJURIES ASSESSMENT BOARD

Appellant/Respondent

-and-

THE LAW SOCIETY OF IRELAND

Amicus Curiae

Judgment delivered the 19th day of December, 2008 by Macken, J.

This is an appeal by the appellant from the judgment of the High Court (MacMenamin J.) delivered on the 25th January,

2005, and the Order made thereon. By that judgment the learned High Court judge declared that the appellant, in declining

to accept or act upon an authorisation dated the 16th August, 2004, (“the authorisation”) signed by the respondent in favour

of his solicitor, acted in breach of s.7 of the Personal Injuries Assessment Board Act 2003, and without authority under any

other provision of that Act (“the Act of 2003”).

In the High Court, the parties, by an issue paper, agreed that the only matters which required to be determined were (a)

whether the appellant was acting in breach of s.7 of the Act of 2003, in refusing to deal directly with the said solicitor

pursuant to the authorisation, and (b) in doing so, whether it was thereby acting in breach of the respondent/applicant’s

constitutional rights. The learned High Court judge did not consider it necessary to rule on the latter claim, having regard to

his findings on the provisions of the Act of 2003, and no appeal has been taken in respect of that decision.

The Proceedings

The particular facts giving rise to the proceedings commenced by the respondent (as then applicant) are fully set out in the

High Court judgment, and a summary of the lengthy facts recited is sufficient for this appeal. In November 2001 the

respondent had an accident at work when an overhead line, on which carcasses of meat were being conveyed, collapsed. He

was struck on the back and sustained injuries. According to the judgment, he was working as a meat boner on a sub-

contract to a company other than the owner or occupier of the premises in which he was working. In mid 2004 he finally

consulted his solicitor about the injury, and was informed that under the Act of 2003 he would have to register his claim

with the appellant. Of immediate concern to his solicitor was the Statute of Limitations, as the three-year limitation period

provided by that legislation would shortly run its course. The solicitor had in mind the normal steps necessary to prepare a

claim for personal injuries, and set about assembling the data necessary to process such a claim including obtaining a medical

report. The judgment points out that, prior to the coming into operation of the Act of 2003, in May 2004, the solicitor would

have been able to protect his client’s position vis-à-vis the limitation period, simply by issuing a very short appropriate

plenary summons in the High Court claiming damages.

The solicitor contacted the appellant and gave particulars of the claim, expressing his concern regarding the effect of the

Statute of Limitations, and indicating he would be sending an authorisation on behalf of his client, which would require the

appellant to deal directly with the solicitor. According to the judgment, the person to whom he spoke asked to be given the

respondent's telephone number, and within a few hours had contacted him personally on his mobile telephone. He was then

at the side of the street, and got the impression he was being told he did not need a solicitor. On the facts, this belief was

held by the learned High Court judge not to have been well founded. The solicitor completed, at the request of his client, the

designated form used by the appellant for such claims and furnished it to the latter, together with the authorisation,

confirming also that no claim for legal costs would be made. On 19th August, 2004, the appellant wrote directly to the

respondent, a procedure at variance with the authorisation, and on 24th August, 2004, the solicitor replied complaining of

this fact. On 26th August, 2004, the solicitor received a telephone call from an official of the appellant, indicating that it

would not deal directly with solicitors, but would furnish copy correspondence to the solicitor, and informing him that the

claim would not be registered without a medical report.

Correspondence took place from that date but by mid September 2004 matters had still not been resolved and these judicial

review proceedings were instituted seeking, inter alia, an injunction restraining the appellant from interfering in the

solicitor/client relationship between the respondent and his solicitor, and an order directing the appellant to abide by the

authorisation. In addition, an order of mandamus was sought directing the appellant to register the claim, in order to prevent

its being time barred by virtue of the provisions of the Statute of Limitations, in circumstances where the medical report

required by the appellant was not yet available. The grounds upon which judicial review was sought at that stage were:

(a) that the appellant had acted unreasonably,

(b) that the exercise of the discretion vested in the appellant’s officers in relation to the making of an assessment

of the respondent's claim and the subsequent failure to register that claim had been exercised unreasonably,

(c) that the conduct of the officers in the handling of the claim had been such as to interfere with the

solicitor/client relationship and thereby to fetter the access to proper legal advice and the proper administration of

justice, and

(d) that in its manner of processing the claim the Board was acting ultra vires and contrary to the rules of natural

and/or constitutional justice.

In the course of interlocutory proceedings, a form of undertaking was given by the appellant to register the claim by a

certain date. The medical report, however, became available, was submitted to the appellant, and the claim was then

registered. In these circumstances, the application for interlocutory relief by way of mandamus was no longer necessary. I

will return to some of these matters later in the judgment.

On the application of The Law Society of Ireland, it was granted leave to participate, as amicus curiae, in the High Court

proceedings, and in December 2006, on application to this Court, was granted similar leave in respect of the appeal.

The Act of 2003

Before considering the judgment and the Grounds of Appeal, it is necessary to say something about the Act of 2003, and the

scheme provided for in the Act (and in Regulations made thereunder) since, central to the appeal, is the correct

interpretation of it. The Act of 2003 was enacted, in substance, to provide for the making of assessments of compensation

in civil actions for damages for personal injury without the need to commence court proceedings, to prohibit bringing any

court proceedings save in limited circumstances, to provide for the enforcement of the assessments made, and to establish a

Body for these purposes. That body is the Personal Injuries Compensation Board, the appellant in this appeal. In this part of

the judgment dealing with the legislation I refer to it as “the Board”. It appears to be accepted by all parties that the Act was

enacted, inter alia, with a view to reducing the costs, in particular legal and other professional costs, associated with the

resolution of such personal injuries claims by means of court proceedings.

The Act of 2003 regulates the determination of all “civil actions” as defined in s.4 which is in the following terms:

“civil action” means an action intended to be pursued for the purposes of recovering damages, in respect of a

wrong, for –

(a) personal injuries, or

(b) both such injuries and damage to property

… .”

By the terms of s.3 it applies to the following:

“(a) a civil action by an employee against his or her employer for negligence or breach of duty arising in the

course of employment with that employer;

(b) a civil action by a person against another arising out of that other’s ownership, driving or use of a

mechanically propelled vehicle,

(c) a civil action by a person against another arising out of that other’s use or occupation of land or any

structure or building,

(d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the

provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to

a person or the provision of any medical advice or treatment to a person)”.

Apart from civil actions of the type excluded under s.3 (d), the Act of 2003 does not apply to an action which bona fide

includes a claim in addition to a civil action claim, nor to certain other categories of claim, including those against the State,

which are not relevant in this appeal. In all other respects the Act applies fully to all claims for personal injuries arising in any

civil actions, as defined. Subject to what is said below, by virtue of the mandatory nature of the scheme, there is an absolute

bar on a claimant commencing any court proceedings in relation to any such civil action. This is clear from s.12(1) which

provides as follows:

“Unless and until an application is made to the Board under section 11 in relation to the relevant claim and

then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, [or] rules

under section 46 (3) or section 49 and subject to those sections or rules, no proceedings may be brought in

respect of that claim.”(emphasis added).

The proceedings referred to in this section are court proceedings. At certain stages throughout the process described below,

the Board may issue a document in favour of the claimant, called an “authorisation”, which then, but only then, permits a

claimant to commence court proceedings. Further, even if a claimant and a respondent to a claim have both engaged the

provisions of the Act, the claimant under compulsion, and the respondent by volunteering to the claim being disposed of

pursuant to the statutory scheme, the Board has a discretion (a) not to embark on an assessment at all, or (b) to cease an

assessment which it has already commenced. Section 17 of the Act of 2003 provides for this, in summary, in the following

cases:

“(1) …

“(i) if in its opinion, there does not exist,… a sufficient body of case law or, as the case may be, a

sufficient number of settlements for the purpose of making an assessment,

(ii) if in its opinion, it would not be appropriate to do so—

(I) because of the particular complexity of the issues that would require to be addressed,

… or

(II) because the injuries consist wholly or in part of psychological damage the nature or

extent of which it would be difficult to determine , … or

(III) because aggravated or exemplary damages are bona fide sought to be recovered, or

(IV) in case the claim arises out of trespass to the person, because the making of an

assessment of the claim by the means to which assessors are limited by this Act would

not respect the dignity of the claimant, …or

(V) because the gravity of any injury or illness of the claimant is such that, were

proceedings to be brought … , an early trial of the claim would, in the Board's opinion,

be ordered to be held to meet the contingency of the claimant's dying before the time the

claim would … come on for trial,

or

(iii) in its opinion, the period of time for which the making of such an assessment would have to be

deferred … would be likely to result in section 49 not being complied with, or

(iv) in its opinion, the person purporting to act as a next friend, or as … a guardian of the claimant

or a respondent, has a conflict of interest in the matter, … and steps are unlikely to be taken in a

timely fashion to secure an appropriate replacement for him or her, or ... .

(2) …

(3) a charge imposed by it .. on a respondent has not been paid to it; …”

The provisions governing the making of an application for an assessment to the Board by a claimant, contained in s.11 of

the Act, and in Rules made by the Board under s.46, are relatively straightforward. These Rules are entitled the "Personal

Injuries Assessment Board Rules 2004" (hereinafter “the Rules"), and were brought into effect by S.I. No. 219 of 2004.

Section 11 of the Act states:

“(1) A claimant shall make an application under this section to the Board for an assessment to be made under

section 20 of his or her relevant claim.

(2) That application shall be in the form specified by rules under section 46 and be accompanied by such

documents as may be so specified.

… .”

The relevant Rule relating to the lodging of an application is Rule 3, which requires that the application (a) be made in

writing or by electronic mail, (b) contain such information as the Board shall specify from time to time, and (c) be

accompanied by the following, (in brief):

(i) a copy of a document (dated) to the person(s) whom the claimant believes to be liable, notifying him/them of

the claim and seeking compensation;

(ii) copies of any other correspondence between the above persons;

(iii) a medical report prepared in accordance with information as

specified from time to time by the Board, prepared by the medical

practitioner who has treated the claimant for the injuries;

(iv) receipts, vouchers or other documentary proof of loss/damage being sought;

(v) any other document that the claimant considers relevant to the claim;

(vi) any other document that the Board/duly authorised members of its staff considers relevant to the claim and

specifies in a written notice to the claimant before receipt of the application by the Board.

Rule 3(3) provides that for the purposes of calculating the limitation period of both the “date of receipt” of the application

and the “date of the making” of an application under s.11 of the Act of 2003, is the date on which an application complying

with Rule 3(1) (a) and (b), shall have been acknowledged in writing as having been received by the Board. Until that time,

no valid application exists.

Rule 5 reads as follows:

“5 The Board may supply a copy of any records or other documents furnished by a claimant, a respondent or

any other person to it pursuant to the Act or the exercise by it or any member of its staff of powers under the

said Act, to a respondent, a claimant or as the case may be such other person as the Board considers

appropriate in relation to the relevant claim concerned.”

In light of the legislation, and information, if any, specified by the Board under the Rules, the processing of applications

pursuant to the statutory scheme provides for the following stages:

(a) When a valid application in respect of any claim for damages for personal injury for a civil action is made to

the Board, this is sent to the respondent(s) to the claim, and if the latter consents in writing to an assessment

being made, or fails to take up any position, the assessment proceeds. [s.14(1)]. If, however, the respondent, in

writing, indicates it does not consent to any assessment being made, the Board will issue an authorisation to the

claimant. [s. 14(2)].

(b) If there is more than one respondent to the claim, and only one accepts, but one refuses, the assessment

proceeds in respect of the willing respondent, and an authorisation issues to the claimant in respect of the other

respondent, but limited to an entitlement to commence proceedings against that non participating party, and

subject to certain limitations concerning the issue of contribution between concurrent wrongdoers. [s.15].

(c) If the assessment proceeds and is determined, this is reduced to writing and served on both parties. It may be

accepted or rejected by either or both. If the claimant fails to state his acceptance or rejection in writing, it is

deemed not to have been accepted. [s.31(1)] If any respondent fails to state his position in writing, he is deemed

to have accepted the assessment. [s.31(2)]. In the event a claimant rejects the award, an authorisation issues.

[s.32(1)]. In the case of a rejection by a respondent, again the Board issues an authorisation, similar to the above,

permitting the claimant to commence court proceedings at that stage [s.31(1)]. A modified position obtains in the

case of an acceptance by one respondent and a rejection by another, which is not directly relevant in the appeal,

save in one respect to which I will return.

The conclusions which can reasonably be drawn from the foregoing brief description of the scheme as provided for in the

Act of 2003 are the following. Any person who has suffered personal injury due to the fault of another has no means by

which his claim may be resolved, except pursuant the mechanism of the scheme established under the Act of 2003. The

scheme is mandatory for a claimant. That is so, even if a respondent contests liability in respect of the same, even in the

most vigorous terms, in the course of the exchange of correspondence which must take place in accordance with the scheme

prior to the lodging of any claim with the appellant. Once the claimant makes the claim, he may not opt out of the scheme

until the very end of the statutory assessment and on notification of the award to him, nor may he request the Board to

exercise its discretion not to deal with the claim. A respondent may opt out of the scheme immediately on receipt of notice

of the making of the claim, or at award stage, without any indication as to reasons. If one co-respondent agrees to an

assessment but another one does not, a complainant must continue against the one opting in to the scheme. If he wishes also

to resolve his claim against the other respondent who opts out, he must commence separate court proceedings against that

party, but only when the Board issues an authorisation to do so. Up until then he may not do so. Nor, without an

authorisation can he commence such proceedings even when a respondent rejects an award which is accepted by a

complainant. Not only therefore is the scheme mandatory for a complainant, but not at all for the respondent, the right

vested in the appellant to control at all stages the access to court by an injured party is a very significant right, extending, as

it does, to all stages of the procedure, even when, at the end of the day, a respondent to a claim rejects the award made.

Before moving from the Act it is appropriate also to cite certain other provisions invoked by the parties in the course of the

appeal.

Section 7 of the Act, the meaning which is pivotal in the context of the arguments in this appeal, states:

“(1) Nothing in this Act is to be read as affecting the right of any person to seek legal advice in respect of his

or her relevant claim and no rule shall be made under section 46 that affects that right.

(2) Subsection (1) shall not be read as requiring any procedure to be followed by the Board or hearing to be

conducted by it that would be required to be followed or conducted by a court were the relevant claim

concerned to be the subject of proceedings.”

The Board is obliged, by the provisions of s.20(4) of the Act of

2003 to make its assessment as to damages on the following basis:

“(4) An assessment shall be made on the same basis and by

reference to the same principles governing the measure of damages in the law of tort and the same enactments

as would be applicable in an assessment of damages, were proceedings to be brought in relation to the

relevant claim concerned.”

The principal functions of the Board are set out in s.54 of the Act of 2003. This provides as follows:

“(1) The principal functions of the Board shall be—

(a) to arrange for the making, in accordance with this Act, of assessments of relevant claims the

subject of applications to it under section 11 ,

(b) preparing and publishing a document known as the "book

of quantum" containing general guidelines as to the amounts that may be awarded or assessed in

respect of specified types of injury.”

As to the service of documents, s.79 provides:

“79.—(1) A notice or other document that is required to be served on or given or issued to a person under this

Act shall be addressed to the person concerned by name, and may be so served on or given or issued to the

person in one of the following ways:

(a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily

resides or, in a case in which: an address for service has been furnished, at that address; or

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily

resides or, in a case in which an address for service has been furnished, to that address.”

Although the assessment in this case, and the proceedings, were all determined prior to the passing of the Personal Injuries

Assessment Board (Amendment) Act 2007 (the “Act of 2007”) which amended the Act of 2003, this Act is relevant to one

matter arising in the course of the appeal, and also to some general propositions advanced. The Act of 2007 includes a new,

important, amendment concerning costs. By s.51(A), it provides, in summary, that where a claimant rejects or is deemed to

reject an award which a respondent has accepted, even if the claimant succeeds in subsequent proceedings, he may lose any

entitlement to the costs of those proceedings if the award of the court does not exceed the amount of the assessment, and

may also be obliged to pay the costs of a respondent, as defendant, to the proceedings.

The Judgment:

Against the history of the proceedings set out above and the legislative scheme, the question which arose for consideration in

the High Court was whether the appellant, in declining to act on the authorisation, was acting in breach of s.7 of the Act of

2003, and if so whether that is in accordance with the provisions of the Constitution. The existence of a longstanding right to

legal representation was not challenged in the court below, as it is not in this appeal. The question which arose therefore was

whether that longstanding right is no longer available in the context of the scheme provided for under the Act of 2003

[including where, as here, the claimant does not intend to, and gives an undertaking not to, seek any costs in respect of such

legal representation.]

The learned High Court judge, made the following main findings:

(a) that the respondent had locus standi to bring the proceedings. This finding is not challenged in this appeal.

(b) that the similarities between proceedings under the scheme and court proceedings, or other proceedings of an

adjudicative nature, are such that a similar approach to the issue of legal representation could be adopted both in

principle and by analogy. That finding is challenged.

(c) that the policy or practice of the appellant is ultra vires S.7

of the Act of 2003, That finding is also challenged.

(d) that the policy or practice in fact adopted by the appellant could not either be based on any claimed

expediency or necessity on the part of the appellant, such as to be within s.54 of the Act of 2003. This finding is

also challenged.

(e) [obiter] that implicit in the case was the issue of the right to legal representation in the context of various

contentious matters, recognised in a wide range of fora, and not confined to court appearances.

(f) [obiter] that the latter right has its application in administrative procedures also, when the matters in issue are

of serious consequence to the parties or impinge upon their rights, including the assessment by a body, such as

the Criminal Injuries Compensation Board, of an award of compensation in respect of personal injury.

(g) [obiter] that even if the procedures before the appellant are administrative in nature, they are, by reason of

their complexity, importance and potential consequences to a claimant, such that they justify the right to legal

representation to the extent claimed for in the proceedings. These latter three dicta are also challenged.

The Appeal:

As mentioned at the commencement of the judgment, the learned High Court judge did not deem it necessary to make any

decision on the constitutional issue.

The appellant appeals from the judgment of the learned High Court judge on thirty-four separate grounds. I summarise these

under the following, namely, that the learned High Court judge erred in law:

(a) in holding that the appellant, by refusing to accept or act upon the authorisation, was acting in breach of or

without warrant under s.7 of the Act of 2003, and without authority under any other provision of the Act;

(b) in failing to distinguish between the right of a person to seek legal advice in respect of his claim under the Act

of 2007, and the constitutional right to legal representation in other situations not involving claims under the Act;

(c) in failing to hold that a person such as the respondent does not have a constitutional right to legal

representation, and by failing to hold that such a right is implicitly excluded having regard to the provisions of s.7

of the Act of 2003, or is no greater than the right to seek legal advice;

(d) in treating as relevant or of assistance in determining issues in the case, or in failing adequately to distinguish,

case law concerning a constitutional right to legal representation or in holding that analogies existed between those

cases and the position arising under the Scheme;

(e) in failing to hold that, on its proper interpretation, the Act made it clear that, apart from the provision of legal

advice, it was intended that lawyers would not be directly involved in the assessment process under the Act, and

further in holding that if it was intended that lawyers should be excluded from direct dealings between the

Appellant and a claimant, the Act would have expressly so stated;

(f) in holding that the procedure was of such importance or complexity as required persons making a claim under

the Act to have a right to legal representation;

(g) in holding that the procedures before the Respondent were of such complexity, importance and with potential

consequences as to justify not only access to legal advice but also a right to legal representation involving a

consequent obligation on the Respondent to deal exclusively with the legal representative engaged by a claimant

(such as the Applicant in this case).

(h) in holding that the impugned practice of the appellant was not necessary, expedient or incidental to the

performance of its functions; and in failing to hold that it was contemplated by the Act arose by necessary

implication therefrom.

(i) in failing to hold that the appellant was not obliged to comply with the terms of an authorisation to which the

appellant was not a party;

(j) in holding that the issues before the appellant were of such importance that not only did a claimant have the

right to legal representation, but that it follows that the appellant was obliged to deal solely and exclusively with

the claimant’s legal representatives.

Although the above sets out in summary form the main grounds of appeal, I consider that the issues in the appeal can, in

reality, be pared down to two very basic questions which were the main subject of the oral submissions on the appeal:

firstly, does the longstanding and unchallenged right of a claimant to be legally represented in connection with the resolution

of a personal injuries claims until disposed of, historically by means of court proceedings, no longer exist in the case of the

scheme established by the Act of 2003; and secondly, having regard to the terms of the Act of 2003, and given the above

existing right arising in such court proceedings, is the invocation by the appellant of a right to limit its relationship with a

claimant’s solicitor supported by provisions of the Act of 2003, whether s.7 or s.54, or other provisions, or in the exercise of

general implied powers of the appellant under the Act.

The General Effect of the Statute

Mr. Fitzsimons, Senior Counsel for the appellant, submits, as a general legal principle, that the right of a claimant to legal

representation under the statutory scheme does not exist, and is not envisaged by the provisions of the Act, save in certain

narrow circumstances provided for under s.29 of the Act in relation to vulnerable persons. On a correct reading of the Act,

the rights of a claimant are lawfully limited to those arising under s.7 whose terms are clear, and those terms, impliedly and

clearly, exclude a right to legal representation. A claimant under the statutory scheme is more than adequately protected at

law by the provisions of that section, which guarantees not to interfere with the right to secure legal advice in relation to a

claim. A claimant is however, limited to that latter right. In all other circumstances, save under s.29, he contends that, as a

statutory body, the appellant is entitled exclusively to regulate how it organises and carries out the functions ascribed to it by

the Act of 2003; that it has determined the manner in which it considers it expedient and/or necessary to carry out those

functions; that a claimant is not entitled to dictate to the appellant the manner in which it exercises its statutory functions,

and may not compel it to deal with him in any particular way, such as exclusively through his solicitor, or by means of an

authorisation to which it is not even a party.

Further, the learned High Court judge had failed to appreciate the relevant legal arguments and distinctions made, and had

wrongly applied irrelevant case law to purely administrative exercises. He had thereby erred in holding that the legal

principles enunciated in those cases could be applied to the purely administrative scheme provided for under the Act of

2003, when it was evident that they concerned a constitutional right to legal representation in court proceedings or in other

contentious situations.

Mr. Gardiner, Senior Counsel on behalf of the respondent, argues as a general legal principle that the pre-existing right to

legal representation is cut down by the appellant’s contention to such an extent that, if it were accepted, it would constitute

an unjustifiable interference in the solicitor/client relationship, and that for this to be lawfully permitted by the Act of 2003, if

at all, the wording of such a restriction must be clearly found in the Act itself, either by express provision, which it is agreed

does not exist, or by necessary implication. In the latter case, the contended-for implied restriction must be readily found, in

the language used, either in s.7 or in some other provision of the Act of 2003, but is not. Since the claim by a claimant to

vindicate his property rights is a valuable property right recognised as being constitutionally protected, and often arising in

complex legal circumstances, the clear terms of s.7 could not lead to a valid restriction on the right to be legally represented

in the vindication of those rights pursuant to the scheme established under the Act of 2003. Further, although passed after

the hearing in the High Court, the radical alteration brought about by the penalties imposed on a claimant pursuant to the Act

of 2007, even a claimant who legitimately rejects an assessment and brings court proceedings, makes it clear that the

assessment provided for under the Act of 2003, as amended, has serious personal and financial consequences for a

complainant, and possible adverse legal consequences. The learned High Court judge had properly applied the relevant case

law, which could not be rendered irrelevant, as claimed, merely because the appellant contends the statutory scheme is an

administrative one, or even if the scheme is in fact an administrative scheme.

On behalf of the Law Society, Mr. Gleeson, Senior Counsel, in his role as amicus curiae, joins with counsel for the appellant

in his argument, and submits further that as the restriction must be clearly found in the Act and, but not being so found, the

Oireachtas cannot have intended that the pre-existing legal right to representation was to be set aside. It is, he argues a clear

principle of statutory interpretation that the appellant has only those powers designated to it by the statute(s) governing it.

Moreover, an interference with vested rights could not either be mandated by general words used in a statute, or by general

implied powers, on the basis that the statute must be interpreted on the assumption that the legislature did not intend at any

time to deprive a person of his property rights or interfere with it save in so far as was necessary for the common good, and

in accordance with the Constitution, citing in that regard In re Dunraven Estates ltd v Commissioners of Public Works

[1974] I.R. 113. The presumption against unnecessary interference with such vested or property rights is, he argues,

applicable in the present appeal, as the impugned policy of the Board interferes with a claimant’s established right to legal

representation. It also interferes with a claimant’s property in his personal injuries action, citing O’Brien v Keogh [1972]

I.R. 144. Such interference may also impact on the assessment ultimately made, and could clearly prejudice a claimant’s

personal injuries action, if that were to proceed eventually by means of court proceedings. Provided, as here, there are

sufficiently serious consequences arising out of the statutory scheme, the right to legal representation extends beyond the

field of pure litigation, and into administrative procedures, if the statutory scheme is such an administrative procedure.

Having regard to such principles, the appellant could not invoke s.54 of the Act of 2003 so as to confer on it a power to

adopt a policy whereby it refused to correspond directly with the legal representatives of claimants pursuant to an

authorisation executed in that regard, because that constitutes direct interference with the right of claimants to legal

representation, and an indirect interference with the claimant’s right of property in their personal injuries action.

The Appellant’s Functions are Purely Administrative

A fundamental and key argument advanced by Mr. Fitzsimons on behalf of the appellant and running through the entire of

the thesis underpinning the appellant’s interpretation of the statutory scheme, is the contention that, given the nature of the

appellant’s functions, that is to say, purely administrative functions, and the assessments which it carries out of claims for

personal injuries not establishing any legal rights between parties, and not being binding on either party unless accepted by

both, the scheme cannot constitute any type of contentious proceedings. Further, since the appellant makes no findings on

liability, it cannot on that basis either, be considered analogous or similar to court proceedings. Nor can the respondents to

the appeal benefit in any way from the case law concerning legal representation in court proceedings or other contentious

situations, which was neither relevant nor material to the issues before the High Court. Of their very nature, the functions of

the appellant are purely administrative exercises carried out by administrative staff of the appellant who are not even lawyers

and usually in respect of what he terms “easy claims”. The scheme leads, in the normal course, to an assessment of

damages which is accepted by the respondent to the claim. In the context of such a scheme, a claimant could, in law, have

no right to legal representation. Mr. Fitzsimons submits that the learned High Court judge failed to make this essential and

fundamental distinction. The learned trial judge had wrongly determined the entitlement to legal representation based on the

alleged complexity of claims and on their consequences for claimants and had wrongly concluded that the scheme provided

for in the Act of 2003 permitted him to apply cited case law by analogy, and had thereby erred in law.

Conclusion:

The learned High Court judge in my view properly described the effect of the appellant’s decisions on claimants, correctly,

when he said:

“At a number of points the Act provides for the claimant obtaining legal advice. Why is this so? Clearly, it is

because such steps and such decisions may have serious legal consequences for a claimant. The consequence

of successfully pursuing a claim before the Board is therefore by no means insignificant. The claimant may

obtain compensation at an early date and such compensation is achieved without risk of an adverse award of

costs.

Thus, even if I accept that the procedures before the Board are administrative in nature, I am satisfied that by

reason of their complexity, importance and potential consequences, they are such as to justify, not only access

to legal advice, by also, such rights to legal representation as have been identified by the applicant in this

case. Nor are such rights rendered irrelevant by the fact that the Board does not conduct hearings.”

It is difficult to imagine a civil action before the appellant save the most minor as being other than one having significant

consequences, including legal consequences, at least for a claimant for whom the scheme is mandatory, and probably also

for a respondent. It is axiomatic from the scale of the possible awards, according to the materials published by the appellant

for claimants under the scheme, that claims may cover injuries arising not just from minor wrongs but also from difficult,

complicated or complex events. Even the circumstances surrounding the making of a claim leading to a relatively small

award may be difficult, complex or complicated, for a myriad of reasons, and in consequence be equally of immense

importance legally and personally for a claimant.

Although at times the appeal was presented as being merely a dispute between the appellant and The Law Society, and I

would certainly agree that in some respects it is such, it is important not to lose sight of the fact that it concerns issues arising

from an actual civil action for personal injuries brought in respect of this respondent’s claimed right to have his solicitor

represent him before the appellant in all his dealings on his particular claim. Mr. Fitzsimons, in the course of the appeal,

categorised the appellant’s role as being substantially the assessment of what are called “easy claims” and in support of that,

invokes s.17 of the Act of 2003 which vests a discretion in the applicant not to deal with what it considers complex cases.

While Mr. Fitzsimons probably quite fairly speaks of “easy claims” and I fully appreciate that s.17 gives a discretion to the

appellant to decide not to deal with cases which might be considered to involve more complex or difficult matters, I do not

think this really resolves the issue, even on a brief reading of the section itself, to which I will return.

A consideration of the present case makes it clear also that the question of “easy claims” is not quite as evident as is

suggested. In these proceedings issues of a difficult legal nature, such as the imminent expiry of the limitation period, arose.

A layman seeking to deal with the matter, upon reading the Act of 2003 would see that a “civil action” covers, under s.3(a)

of the Act, a claim “by an employee against his or her employer for negligence or breach of duty arising in the course of

employment with that employer”. It would not necessarily be as evident to him that his claim might also lie against another

party, who does not come under 3(a), such as the owner or occupier of the meat processing premises in which the

respondent was working, under 3(d). Issues also arose on the obligation to “register” within the limitation period as well as

on the status of the authorisation provided. As is clear from the summary in the judgment on the interlocutory application,

specific problems in the absence of a medical report arose. While it is not necessary to rehearse the details, as the learned

High Court judge stated on this issue and on a form of undertaking options given by the appellant:

“Clearly a most difficult situation might have arisen if a court were to take the view later that the claim for

mandatory reliefs had been abandoned in circumstances where the Board and its advisers did not consider

that the respondent had availed of either of the precise options outlined in a letter from the Board of 17th

September 2004. For example, what would have happened if the respondent had insisted on Mr. Cogley's

being the relevant report or if the "stand-off" continued.”

A medical report is essential in order to have a claim “registered”, as the word was used in the course of the proceedings. A

layman reading of Rule 3(3) of the Regulations would find no such reference however. According to the Rule, the

acknowledgement by the appellant of a complete and valid application is the date both of “receipt” of the application and of

the “making” of the application, for the purposes of the limitation period. Nor even if a claim were “registered” against one,

correct respondent, assuming that is what Rule 3(3) envisages, would it be obvious to a layman that, as against another

respondent against whom a claim also existed but had not been “registered”, time was still running for the purposes of the

limitation period. Further, Mr. Gleeson correctly points to the legal complexities which can arise on matters such as

disclosure by a claimant to the appellant – inter alia for onward transmission to a respondent – of information or materials

which can be used subsequently by a respondent against a claimant in court proceedings. While under the Act of 2003, the

actual assessment figure may not be disclosed in such proceedings, there is no prohibition on the use of all documents

disclosed, even if done without the benefit of a solicitor, disclosure which might well be to the legal disadvantage of a

claimant and of great importance or of significant value to a respondent who may, on the basis of the same, decide not to

agree to an assessment proceeding, a decision he may make without disclosing any reason.

Having regard to such sample matters of legal complexity, a claimant could, with considerable justification, decide his

interests would best be served by being represented directly and exclusively by his solicitor, in the same way, for example,

as a person might well wish that all tax issues arising with the Revenue Commissioners, including all assessments as to tax,

which might well lead to eventual enforcement by means of court proceedings, be dealt with exclusively and directly by his

expert tax advisor.

But even allowing for the foregoing sample issues which arose in this present case which justified the learned trial judge’s

findings as to complexity, the question which remains is whether the learned High Court judge was also correct in holding

that the nature of the scheme is sufficiently similar to legal proceedings, citing, inter alia,, Re Haughey [1971] I.R. 217,

Maguire v Ardagh [2002] 1 I.R. 385, Mosley v St. Louis 634F.2d. 942 [1981] and Powell v Alabama 287 US 45 [1932]

and that because of such similarity, a claimant in his dealings with the appellant is entitled, both in principle and by analogy,

to be represented, if he wishes, by his solicitor. He stated:

“The above-cited cases clearly emphasise the importance of legal representation even outside the sphere of the

administration of justice proper, and the need for parties to be free to decide, prudently and reasonably, on

the nature and extent of their legal representation.”

There are several reasons why I consider the judge’s findings that the nature of the scheme is sufficiently similar to court

proceedings to justify the above statement, are correct. In the course of the appeal, as I have mentioned, the appellant

contends that because the scheme is a mere administrative exercise, not binding on the parties, with no determination of

liability, and because each party can reject the assessment figure, after which a claimant can bring court proceedings, it

cannot be similar to court proceedings or other contentious matters, or compared with them in any relevant way. Such a

description of the scheme concentrates however, on the circumstances under the Act in which the appellant may, during the

course of the exercise, authorise a claimant to commence court proceedings. But in my view that approach is erroneous,

when seeking to determine the true nature and intendment of the scheme and its similarity to court proceedings. It fails to

have regard to the primary and clear intention of the legislature as found in the provisions of the Act of 2003 itself, and

seeks to determine its functions and the legal nature of the scheme by reference to the statutory exceptions which exist to

provide for circumstances when the scheme does not, in fact, work. True, if the appellant exercises its discretion under s.17

of the Act not to proceed with an assessment of the claim, it will issue an authorisation to the claimant, permitting it to

commence court proceedings, but not only in cases where liability is in issue or the matter is complex. True, if a respondent,

but not a claimant, does not agree to engage in the assessment process at all, an authorisation will issue. True, if either party

to an agreed assessment does not accept the figure determined, an authorisation will issue. Indeed, it is only at that stage, at

the end of the entire assessment process, that a claimant, as opposed to a respondent may “opt out” of the scheme, so to

speak. But all these situations cover circumstances where, exceptionally, the scheme does not work to its intended end, and

are the only such examples.

On the contrary, the Act is intended to ensure the successful operation of a formal statutory mechanism for the final disposal

of genuine, proper, ordinary civil actions for personal injury, traditionally disposed of by court proceedings. It is intended,

because it is mandatory for them, to apply to all claimants. It is intended by the Act that the respondent to a claim will

engage in the process. It is intended, by the very nature of the scheme, to reach a stage where the assessment figure notified

to the parties will be accepted by both. It is specifically envisaged by s.20(3) of the Act of 2003 that the assessment will be

made on the long standing legal basis provided for, namely, by reference to the principles applicable to such claims in the

law of tort, established in court proceedings. It is intended to lead to an award of money to compensate a party for injuries

arising from a civil wrong such as negligence, and where accepted, the award is enforceable against a respondent, if

necessary by means of court proceedings. It is certainly not intended as a mere preliminary to court proceedings, or as a

form of non-binding mediation, since neither could lead to an enforceable award.

The fact that, by s.17 of the Act of 2003, the appellant has a discretion not to carry out an assessment or even to stop an

extant assessment in a particular case, whether because it considers it an especially complex claim or for any other statutory

reason, does not alter the legal status of the scheme or the legal outcome of a claim for the parties. Indeed it is quite clear

from the very broad terms of that section that the appellant may refuse to deal with claims and even halt an assessment

already in train where the issues arising are not at all complex, but where a court may then deal with precisely the same

matter. Interestingly, the scheme obliges a claimant to submit to it, even in circumstances where a respondent has vigorously

put liability in issue in the required exchange of correspondence prior to a claim being lodged. It must be assumed that, even

in such circumstances, the Act of 2003 is intended to encourage a situation where such a respondent, once a valid claim is

lodged, may in fact change his approach to liability and agree to an assessment, and undoubtedly some do. It is indicative of

an intention by the legislature, not to establish a scheme whose functions are to be assessed by reference to its exceptions, as

the appellant suggests, but rather to resolve to the largest possible extent, the maximum number of civil actions under the

scheme, once a claimant, as he/she must, makes a valid claim.

It is only (a) where the Act of 2003 itself precludes an assessment; or (b) where a respondent, but not a claimant, objects to

the assessment taking place; or(c) where the appellant exercises a discretion (without any input from a claimant) not to carry

out an assessment, that the scheme does not operate to its intended end. It is only when the scheme has functioned, and has

led to an award, that either party can reject it. Where it does operate to its intended end, it constitutes, without being capable

of being gainsaid, the final disposal of claims for damages in respect of all civil actions for personal injuries, provided these

come within the statutory definition of “civil claim”, that is, claims arising in tort causing personal injury. It seems to me that

when judged correctly, by reference to what is intended to happen and by what should happen, rather by reference to

certain exceptions to the intended operation of the scheme at certain stages in the process, its true character is evident. How

then does the scheme compare to court proceedings?

In each case important and constitutionally protected property rights of an injured party are being vindicated by the decision

maker, and the outcome is of considerable significance to the parties involved. Each disposes of tortious claims causing

personal injury. Each is intended to measure the appropriate award. Each involves parties seeking respectively the most

advantageous permissible award made for personal injuries arising in a civil action, or the lowest permissible award to be

made against it. Each of the awards is by reference to established criteria or to generally known and recognised comparators

in tort, in the case of the scheme by reference to a “Book of Quantum” which itself must be based, according to s.20(3) of

the Act of 2003, on an appropriate analysis of the principles of law applicable to such awards established in court cases.

Under the scheme itself a co-respondent who has not agreed to take part in any assessment, will have to meet a case in

court where an eventual assessment arising from the same events, and the same injuries, is dealt with simultaneously under

the appellant’s scheme in respect of the other co-respondent. And of course, also under the scheme itself, even if a

respondent(s) to a claim agrees to an assessment, and therefore does not put liability in issue in any way, the same

assessment as to damages will be determined by court proceedings, if the appellant exercises a discretion under s.17 of the

Act not to deal with the claim. In such circumstances, it seems highly unlikely that a respondent, having agreed to an

assessment taking place, could or would thereafter seek to put liability in issue in such court proceedings. A reading of the

circumstances listed in that section in which that discretion may be exercised makes it clear that a court would be making the

same assessment in law as the appellant would in respect of the same claim, under the statutory scheme. And of course,

each decision is fully enforceable at law.

It seems to me clear that, properly compared, the scheme is, inevitably, closely similar to court proceedings especially those

in respect of similar claims. It is also true that apart from proceedings involving both issues of liability and of assessment of

damages – the more usual situation - court proceedings for personal injuries claims included also, until the passing of the Act

of 2003, a reasonable number of cases which were also disposed of, whether from commencement or at hearing, by means

of a pure assessment of damages. While it is true that the extent of the legal differences between the parties on such an

assessment might, but not necessarily would, be greater than under the statutory scheme, that feature could not render the

statutory scheme not similar to court proceedings, nor could the fact that parties might have legal representation in court do

so. The learned High Court judge did not suggest the scheme was identical to court proceedings, nor with assessment only

court proceedings nor with contentious proceedings, but only that they were sufficiently similar in their nature to justify

applying the right to legal representation assured in the above case law, both in principle, and by analogy. I am satisfied that,

in light of the foregoing, the learned High Court judge was correct to reject the appellant’s contention that, because any

assessment made pursuant to the scheme is not made in “contentious” circumstances in the sense that this might be used in

some court proceedings, or because it does not, as in many court cases, also determine liability between the parties, it is not

analogous to court proceedings of a similar kind, or to similar adjudicative proceedings.

That being so, a decision by a claimant before the appellant that his interests would, in his opinion, best be served, by

mandating his solicitor to deal exclusively with the appellant in relation to his claim seems not only reasonable but even, in

an appropriate case, prudent. It would in consequence also seem exceptional that the Oireachtas intended that a claimant in

such circumstances, should, after the passing of the Act of 2003, be deprived of a long-standing right to legal representation

in respect of all aspects of the resolution of a civil action, including being permitted to employ his solicitor exclusively to

represent him in dealings with the appellant, without this being expressly stated in the provisions of the Act of 2003, as

adopted. At the very least, any words used in the Act upon which reliance is placed to support the argument that the

Oireachtas did by implication, so intend, would have to be very clear in evidencing that intention. In the present appeal, the

court is concerned with assessing whether the learned High Court judge was correct in his finding that the Act of 2003 did

not, having regard to its provisions, reflect a decision by the Oireachtas to set aside such a right, nor expressly nor impliedly

authorise that right to be interfered with in the way contended for by the appellant.

I will return to the statutory provisions later in the judgment.

The Principle of Equality of Arms

Mr. Fitzsimons also contends that the principle of “equality of arms” argued by the respondent and the amicus curiae as

applying, has no place in the legislative scheme, because it is purely administrative in nature and the assessment is not

binding on the parties. Mr. Gardiner points to the treatment by the appellant of a claimant, whose solicitor it refuses to deal

with directly, and its wholly contrary approach to a respondent. In the case of the latter, he argues, it may be represented

before the appellant directly by professional persons such as claims managers, where the alleged wrongdoer is insured and

the claim is subrogated to an insurance company. Mr. Gleeson submits that the approach of the appellant, both in its printed

booklet for claimants and in its written correspondence to them, makes clear that it refuses to deal directly with their legal

advisors, while at the same time being willing to deal with professionals on behalf of a respondent to a claim or to a

subrogated party, thereby excluding a mechanism well known for hundreds of years as ensuring a level playing field between

parties, and which offends fundamental principles of fair procedures, applicable also in administrative law hearings.

Conclusion

I am not persuaded that the appellant’s status as an administrative body, is determinative of the issue whether, in a claim

arising pursuant to the scheme in the Act of 2003, this principle, in the sense used in these proceedings, does not or cannot

apply. Although a phrase at times bandied about without much regard for its origin, which is founded particularly in

jurisprudence of the European Court of Human Rights, arising from the right of defence guaranteed in Article 6 of the

European Convention on Human Rights, or even for its true application - it has its origin in the use of documents in the

hands of one party which were undisclosed to, and used against, the other party in legal proceedings, in the context of the

present appeal, “equality of arms” is not used in that classic sense. It is intended by the parties invoking it to be considered

as a required element within the principles of natural justice, in particular fair procedures applicable in administrative law

matters, and to be applied to the different manner in which the appellant deals with the respective parties to a claim under

the Act of 2003. The principle of “equality of arms” in the classic sense is at this time also recognised in European

Community case law as applying to appropriate administrative decisions (see: T-30/91, Solvay v Commission [1995] ELR

II-1775, and, in the area of competition law, is actually embedded in relevant legislation, but limited to the availability and

use of documents. Having regard to its origin and to the manner in which it has been developed in the case law, the

respondent and the amicus curiae have not established that “equality of arms” in its classic sense, is applicable to the scheme

provided for under the Act of 2003. However, it seems to me that the principle of “equality of arms” is but one

representation or example of the umbrella of rights which are now recognised as applying to all types of proceedings. As was

stated by O’Dalaigh, C.J. in the case of In re Haughey [1971] I.R. 217:

“ … in proceedings before any tribunal where a party to the proceedings is on risk of having his good name,

or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed

as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its

enactments or through the courts, must outlaw any procedures which will restrict or prevent the party

concerned from vindicating these rights” (emphasis added)

This statement must cover not simply court proceedings, or

contentious proceedings determined outside court proceedings, or tribunals of the type being considered in that case, but all

those in which, inter alia, personal or property rights may be affected, including such rights as are affected under the

scheme provided for under the Act of 2003. It does not, however, follow that all procedures which operate in court

proceedings or all those appropriate to operate in a tribunal of enquiry setting, for example, also must apply to the type of

scheme under consideration. Basic appropriate fair procedures apply. As was very aptly and pithily put in the judgment of

Geoghegan, J. in Maguire v Ardagh [2002] I.R. (page) at p. 74):

“It is well established by decided cases that in respect of any kind of tribunal or inquiry body, as to what is or

is not fair procedures may vary depending on the nature of the matters being investigated.”

It is the relevant principles of fair procedures, applicable to administrative schemes, which are to be applied in the present

case, and the complaint by the respondent and the amicus, as described above, is really to be dealt with within this rubric,

rather than, under the classic “equality of arms” doctrine. In particular they argue that both parties should be treated in an

equal manner in their dealings with the appellant, or more correctly, the parties may not in law be treated in such a dissimilar

manner as to disadvantage one of them.

What then are the facts to be considered with a view to assessing whether such fair procedures are applied? Mr. Fitzsimons

very properly clarified, during the course of the appeal, that the appellant deals directly, and without question, with any

person put forward on behalf of a respondent, or his insurance company, in processing claims under the scheme. This

includes, he confirmed, not only a claims’ manager of an insurance company, who, it may be assumed, while not

necessarily being legally qualified, may be so, or may have many years experience dealing with civil actions for personal

injuries in court. But it also includes, he acknowledged, any in-house solicitor or legal advisor representing an insurance

company. I did not understand Mr. Fitzsimons to suggest that the appellant would not also deal directly with outside firms of

solicitors, acting on behalf of insurance companies in such claims, who must together with in-house lawyers represent the

vast bulk of respondents who will be insured parties.

The consequence of the above is that the appellant accepts the mandating by a respondent, or his insurance company, of his

or its solicitors, and deals with them directly, but refuses to deal directly with a claimant’s solicitor, whose position is starkly

different. According to the evidence, a claimant may only contact the appellant in relation to his claim by telephone or in

writing. If by telephone he must deal with a “call centre”, an independent undertaking to whom the appellant has outsourced

certain functions under the scheme, including dealing with claimants. Under no circumstances, save those arising under s.29

of the Act, will the appellant deal directly and exclusively with a claimant’s solicitor. I can deal with s.29 briefly. It is not

apparent to me from reading this section that the provisions of s.29 can be accepted as being intended exclusively to protect

an apparently vulnerable claimant, or whether the provision has a dual function, as I believe it must have, protecting also the

appellant from claims against it, by ensuring that it does not itself wrongfully or negligently deal with the claim of a

vulnerable person, without ensuring the intervention of a solicitor on his behalf. This more likely dual purpose renders s.29

of less assistance in determining the questions which arise on this appeal under this ground. Even if it only has a single

purpose, that also does not resolve the issue.

The only legal basis upon which the appellant could explain the distinction in its policy, underpinning the very different

approach it adopts between claimant and respondent, is if it were to argue that it is entitled to do so pursuant to s.7(1) of the

Act. It is worth noting that at ground 20 of the Notice of Appeal, the appellant claims that the learned High Court judge

erred in law:

20 in holding that the Act of 2003 did not make clear that apart from the provision of legal advice, it was

intended that lawyers would not be directly involved in the assessment process under the Act

(emphasis added)

This ground applies, on its face, to all parties to a claim and not merely to claimants, and is contrary to the approach actually

adopted by the appellant in practice. S.7(1) as worded refers only to claimants and not to a “party” to the claim. Although

the appellant contended in the course of the hearing that s.7(1) impliedly, but clearly, limits a claimant to legal advice, an

argument I deal with later in the judgment, it has not suggested that the section directly authorises the above difference in

treatment between parties. S. 7 of the Act is neutral on this matter. But when, as here, the appellant applies its policy or

adopts a practice to implement that policy, which is not expressly permitted by s.7 and thereby creates the acknowledged

difference in treatment between claimant and respondent in its administrative proceedings, without any objective justification

for doing so, it cannot be said to be applying fair procedures in the operation of the scheme. Could it, for example, be validly

contended that in dealing with a purely administrative planning issue, although one affecting an applicant’s property rights,

An Bórd Pleanála could lawfully refuse to deal with an applicant’s expert architect or engineer, and insist on dealing directly

with the applicant, while at the same time dealing directly and exclusively with an opposing party’s expert engineer or

architect? Nor can it be contended that any more equal treatment of parties is only required in the case of an oral hearing.

Many administrative decisions in many jurisdictions, from where the principles of equality of arms and of equal treatment of

parties in administrative tribunals stem, are disposed of “on paper” with no oral hearing and even without an entitlement to

an oral hearing. Neither has it been suggested, except by implication, that the difference in treatment can be justified by s.54

of the Act of 2003 which I will deal with later in the judgment.

I do not think it necessary to resolve the more nuanced “equality of arms” argument put forward by Mr. Gleeson on behalf

of the Law Society. His role on behalf of the Law Society, as amicus curiae, is to expose, if of assistance to this court,

more general consequences which might flow from the application of the scheme in the manner which the appellant

contends is permitted. If I had to decide this, based as it is on the proposition that a claimant should have a right of access to

professional advice or representation to match that available to respondents, insurers and the Board itself, I would have

found against it. Even absent the contended for restriction on a right to legal representation, it cannot be said with any

degree of certainty, or at least not without considering in detail the impact of social, financial and even cultural influences,

that there is any guarantee of such equality of arms between parties, in whatever forum claims are resolved.

Having regard to the foregoing admitted differences in the treatment of a claimant and a respondent or third party insurance

company on the very issue of legal representation which is the subject of this appeal, and without any valid legal basis

justifying the same, I find that the learned High Court judge was correct when he held that the practice of the Board in the

assessment of claims, represents an “inequality of arms” in the sense used above. That finding was made prior to the

clarification furnished on behalf of the appellant in the course of the appeal. The conclusion is even more evident as a result

of that clarification.

Guarantee of Legal Advice

As a final, and probably the most fundamental, plank of the appellant’s argument, Mr. Fitzsimons submits that on a correct

reading of the Act of 2003, in particular s.7, the Oireachtas has clearly provided that a claimant is entitled to, but – equally –

limited to, securing legal advice under the statutory scheme, and is not entitled to legal representation. Section 7(2) he

submits, makes it clear that the Scheme is not to be equated with court proceedings, and s.7(1) of the Act sufficiently

protects a claimant, guaranteeing as it does, the right to secure legal advice. He argues that the appellant is entitled to limit

the involvement of solicitors in the Scheme to the giving of legal advice in respect of claims, such as is guaranteed under

s.7(1) of the Act, having regard to its wording and the nature of the scheme. I have sufficiently set out the arguments of the

respondent and the amicus on this issue in the broad general legal principle arguments above.

Conclusion

Although cited earlier in the judgment it is useful to set out s.7 of the Act of 2003 again. It reads:

“(1) Nothing in this Act is to be read as affecting the right of any person to seek legal advice in respect of his

or her relevant claim and no rule shall be made under section 46 that affects that right.

(2) Subsection (1) shall not be read as requiring any procedure to be followed by the Board or hearing to be

conducted by it that would be required to be followed or conducted by a court were the relevant claim

concerned to be the subject of proceedings.” (emphasis added)

I am satisfied, having regard to the appellant’s submissions, that the learned High Court judge correctly approached the

exercise to be carried out by him, by considering whether the appellant could validly base its contended for right to restrict

the respondent to obtaining legal advice but no more, as falling within the scope of, or as being permitted by s.7 of the Act,

and if not, by proceeding to consider whether the right could be found to exist pursuant to any other relevant provision of

the Act.

Firstly, as to s.7(2), this subsection is not one which, either expressly or impliedly, restricts the right of a claimant to be

legally represented by a solicitor in his dealings with the appellant. Rather it is entirely neutral on that issue, and its intention

is clear. It restricts any party under the statutory Scheme, and not simply the claimant, from invoking procedures which

govern court proceedings such as, for example, motions for discovery, or required applications to join third parties, or the

obligatory exchanges of expert witnesses’ statements or of medical or other reports, or the provision of an oral hearing, or

similar procedures. Rules of Court governing such procedures do not however interfere with or regulate in any way the right

of a person to be represented by a solicitor in court proceedings. Save in specified and very limited circumstances, the Rules

do not govern whether a party has legal representation or not. A party may on the contrary, represent himself. If, however,

a party is legally represented, that fact must be recorded, and correspondence to or contact with a party to proceedings is

made exclusively through such legal representative for so long as he remains on record. Section 7(2) cannot be invoked to

establish that it governs the right, or otherwise, of a claimant to be represented exclusively by a solicitor, in respect of claims

being dealt with under the Act of 2003.

As to s.7(1), a public policy which aims to reduce legal and associated costs arising in court proceedings, and which has as

its basis, inter alia, the aim of disposing of claims for personal injuries in a simple straightforward manner, which may also

enable a claimant to apply for and benefit from the statutory assessment scheme without legal representation if he/she

desires, is a perfectly proper and acceptable public policy aim, and an appropriate basis for a legislative scheme of the type

under review here. The provisions of s.7(1) are neither intended nor permitted to interfere with the entitlement of a claimant

to obtain legal advice, the only caveat being that under the legislation a claimant does not have a right to be indemnified in

respect of the costs of such advice. This clearly includes such advice as may be sought in relation to the completion of an

application or in relation to correspondence between a claimant and the Board. The position concerning costs appears to be

subject to an unelaborated discretion vesting in the Board to award costs. Counsel for the appellant disclosed during the

course of the appeal that the current position is that costs are now sometimes awarded, depending on the nature of the case.

According to counsel for the respondent, this is different to the position as explained by the appellant in the High Court. My

decision however is not dependent on this apparent change in approach to costs, and for the purposes of this judgment,

costs are simply part of the overall background to the issues raised, save in respect of the legal consequences of the Act of

2007, already mentioned above.

Section 7(1) of the Act, on its face, does no more than state the obvious, for it would be a strange piece of legislation which

would seek to prohibit a person from taking legal advice at any time and in respect of any matter. It is very clear, and not at

all ambiguous – so far as it goes. The fact remains that s.7 is wholly silent on the question of legal representation, which

might suggest that, whatever the hope or expectation behind the language chosen, legal representation is not expressly

excluded. The question which arises is whether, by guaranteeing the right to secure legal advice, even at no cost to the

scheme, the Oireachtas intended necessarily that no legal representation would be permitted under the scheme, or, more

correctly, that no legal right to this exists.

In endeavouring to determine whether the Oireachtas intended to limit or restrict a claimant from being represented by a

solicitor by adopting the language actually used, it is helpful to apply to the Act appropriate drafting norms or practices

which might be considered applicable for that exercise. As to these, firstly on their face, both s.7 and the remaining sections

of the Act of 2003 are accepted as being silent on whether a claimant is entitled to be legally represented before the

appellant, in respect of a claim being dealt with under the statutory scheme of 2003. No express provision for legal

representation exists in the Act of 2003 save s.29 in relation to vulnerable persons. For the reasons set out above, it does not

follow from that provision, that a claimant has no such right. Secondly, legislation is sometimes drafted to include a

provision in favour of a decision maker, such as the appellant in the present case, to retain to itself the right to decide

whether or not legal representation is to be permitted, or the extent of the same. No such provision exists under the Act of

2003. In Commission into Child Abuse [2002] 3 I.R. where a right to legal representation expressly existed in circumstances

where oral hearings were envisaged, this right was held not capable however, of being limited, without express provision.

Thirdly, legislation may itself provide for, or it may retain to the decision maker, such as the appellant, the right to grant

representation to a particular group of legal advisers, such as, for example, representation by a solicitor but not a barrister, or

representation by a legal advisor or by others registered on an approved list. Examples of this are found in subsidiary

legislation governing the Rules of the Superior Courts, concerning representation before the Taxing Master of the High

Court, and were also included in the Trademarks Act 1963 and the Patents Act 1964 in respect of those registered as patent

or trademark agents on statutory registers. Again no such power is vested in the appellant under the Act of 2003. Fourthly,

legislation may sometimes provide for an entitlement to an oral hearing, such as under the legislation in the last case cited,

and in that event, the authorities predominantly suggest that that right implies also an entitlement to legal representation. It

does not follow as a corollary, however, that absent provision for an oral hearing, as here, there is no such right. These are a

small range of examples of the ways in which the Oireachtas might have dealt with the issue of legal representation, quite

apart from the most obvious option, namely, a straightforward prohibition on such legal representation, assuming that were

constitutionally permissible, upon which I express no view whatsoever, the learned High Court judge having made no finding

on that issue. None of the above mechanisms, frequently used in legislation, by which an intention to grant, prohibit or limit,

or, as is contended for here, to oust a right to legal representation, and which might otherwise have been established by

reference to the language used, is found in the Act of 2003.

Nevertheless since the provisions of s.7(1) clearly were intended to have some real and sensible meaning, it being a well

established norm of statutory interpretation that the legislature does not adopt provisions without a clear purpose, it is not

sufficient simply to conclude that, in providing for the entitlement to legal advice, the Oireachtas could not have intended the

words used to have no useful meaning. The Act of 2003 was, as is acknowledged by all parties, intended to provide a

mechanism for resolving civil actions for personal injuries, without the costs involved in court proceedings. I have held that

the scheme reflects a perfectly valid public policy. It guarantees a right to legal advice, as a minimum. The fact that, on

appeal, it is said that costs are allowed in certain cases, does not however grant a right to costs to a claimant, so can makes

no difference to the interpretation of s.7(1) of the Act. Bearing in mind the public policy behind the establishment of the

scheme, the Oireachtas undoubtedly anticipated that if the scheme succeeded as expected, many claimants, especially those

having very simple claims, would engage in the scheme directly with the appellant, despite the guarantee of a right to legal

advice. That would certainly meet the public policy underlying the scheme. By guaranteeing the availability of legal advice,

some claimants will also undoubtedly be satisfied to be guided by that legal advice in relation to a claim, without requiring

more. That too meets the public policy underlying the Act, although not perhaps to the same extent as with those dealing

directly with the Board, since there will be a cost to a claimant in such a case. But neither of these desirable aims can, in

law, override the entitlement of other claimants, even if small in number, or reducing in number as the scheme becomes

more established, to be legally represented if they choose, in the absence of a clear prohibition on the right to legal

representation, whether express or implied in the Act.

The appellant, in my view, cannot support the practice it has adopted, it not being either expressly stated, or necessarily

implied from the language used in s.7(1) of the Act of 2003, nor by reference to the public policy underpinning the Act, that

legal representation of the type sought in these proceedings, is prohibited. Nor does the appellant point to legislation in any

other analogous area of the law, or even in any other jurisdiction, governing a similar or comparable scheme in which legal

representation is prohibited, or to any provisions in an Act which has been interpreted to exclude such a right and which

might have been of assistance to the court in this appeal.

Practice both Expedient and Necessary and the Implied Power to Limit a Right of Representation

It is appropriate to deal with these grounds of appeal together. The learned High Court judge found, as a fact, that the

appellant, having relied on s.54 of the Act in support of its contention that its practice was both necessary and expedient,

had not established this. The appellant submits that this finding was wrong in law. The appellant has correctly and lawfully

come to the view, Mr. Fitzsimons argues, that it is both expedient and necessary to regulate the administration of its business

in this manner, that is to say, by dealing directly with a claimant, and copying his solicitor with correspondence. In the

present case, the appellant was willing to copy correspondence to a claimant’s solicitor, as it does in all cases in which it is

requested to. He submits that this expedient approach to the carrying out of its functions is clearly within s.54(2) of the Act

of 2003. It will be recalled that this states:

“(2) The Board shall have all such powers as are necessary or expedient for, or incidental to, the performance

of its functions under this Act.”

Further, he argues, that the Act of 2003 also includes all implied powers generally available to a statutory body of the nature

of the appellant although the trial judge failed to refer to it in his judgment, It is not necessary that the Act of 2003 should

itself include an express provision granting all such implied powers. The approach adopted by the appellant falls within the

ambit of “implied powers” as understood in the correct context.

Conclusion:

In finding, as he did – as a fact – that the appellant had not established that it was either expedient or necessary to deal

exclusively with claimants, or not to deal directly with a claimant’s legal advisor, pursuant to an authorisation in that regard,

the learned High Court judge did not misdirect himself in any way in his interpretation of s.54 of the Act of 2003 which

findings he made having regard also to the appellant’s implementation of other sections, such as s.79 of the Act. The finding

of fact was based on the evidence adduced, was within jurisdiction, and does not exhibit any perversity in the finding made

or the conclusions drawn. The appellant is not entitled, in the above circumstances, to go behind those findings of fact, the

case law, including Hay v O’Grady [1992] I.R. 210 being clear in that regard. It is true of course that in the present case, all

the evidence tendered was by means of affidavit evidence, and that this Court is, in such circumstances, in as good a

position as the High Court, to determine the appropriate conclusions to be drawn from that factual evidence. I am also

satisfied that, prima facie, the opinion of the appellant as to what it considers reasonable or necessary for the purpose of

administering the scheme, should be accorded considerable respect. But when the claimed expediency or necessity is put in

issue, as it was in the present case, then it seems to me that the findings of the learned High Court judge, based on the

evidence tendered, must also be accorded considerable respect, unless it can be established that he misdirected himself in a

material manner. I do not find, in the judgment on this aspect of the matter, any evidence that he did so.

Mr. Fitzsimons was entitled however, to criticise the absence from the judgment of an additional, complementary, argument

made, namely, that there was an implied general power under the Act of 2003, to do all appropriate things flowing from the

nature of the Act and the functions of the appellant. He very fairly says that there may be some overlap between the

argument on “expediency” and “implied powers”, and I agree. The absence in the judgment of a specific answer to that

argument does not lead to any frailty in the judgment of the learned High Court judge however the case law establishing that

it is not obligatory to deal with each and every non-essential argument made. Since a clear finding was made on both

expediency and necessity, this is, in my view, sufficient also on the issue of general implied powers, having regard to the

correct acceptance by the appellant of the obvious overlap between them.

Finally, although not the subject of significant argument in this appeal, the appellant is, nevertheless, entitled to prescribe the

terms of the authorisation which it considers acceptable and appropriate, having regard to its functions and the scheme in

general, as part of its power to manage its functions and the scheme itself in accordance with its permitted policy, subject

only to the above findings.

Decision:

In light of the foregoing, I find that the appellant is unable to point to an express, or necessarily implied intention on the part

of the Oireachtas, such as can be ascertained from the language used in the Act of 2003, whether under s.7, s.54, or

otherwise, to exclude a claimant from being legally represented, if he so wishes, in his dealings with the Board in respect of a

civil action before it, arising from personal injuries, of the type covered by the provisions of the Personal Injuries

Assessment Act of 2003. I am satisfied that there are no grounds upon which this court should interfere with the judgment

of the High Court. I therefore dismiss the appeal and affirm the High Court Orders.