Personal Injuries Guidelines: Update re Implementation and Application

Following on from the adoption of the Personal Injuries Guidelines by the Judicial Council on 6 March 2021, further clarification in relation to the implementation and application of the Guidelines has now been provided by way of Section 30 of the Family Leave and Miscellaneous Provisions Bill, 2021.

The Personal Injuries Guidelines (“the Guidelines”), prepared by the Personal Injuries Guidelines Committee and formally adopted by the Judicial Council on 6 March 2021, are set to be introduced into law shortly by the Government. The Guidelines will formally take effect once S.99 of the Judicial Council Act, 2019 (the “2019 Act”) has been commenced – and at the latest by 31 July 2021. S.99 of the 2019 Act amends S.22 of the Civil Liability and Courts Act, 2004 (the “2004 Act”) – ‘Matter to be taken into account by the court when assessing damages’ – to direct that, when assessing damages in a personal injuries action, the Court shall … have regard to the Guidelines and where it departs from those guidelines, state the reasons for such departure in giving its decision.

The Minister for Justice, Helen McEntee TD, has previously stated that the Guidelines will apply to all cases that have not been assessed by the Personal Injuries Assessment Board at the date S.99 of the 2019 Act is commenced[1]. It would seem to follow, therefore, that the Book of Quantum will remain applicable to those cases which have been subject to an assessment by that date (i.e., the date on which S.99 of the 2019 Act is commenced).

However, it is important to note that S.30 of the Family Leave and Miscellaneous Provisions Bill, 2021 (“the Bill”) amends S.99 of the 2019 Act to provide for amendment of S.22 of the Civil Liability and Courts Act, 2004 (the “2004 Act”), by inter alia, inserting the following:

‘(1A) The court shall have regard to the Book of Quantum in assessing damages in a personal injuries action where the action is commenced—

(a) before the date on which section 99 of the Act of 2019 comes into operation, or

(b) on or after the date on which that section comes into operation in relation to a relevant claim where

(i)  an assessment was made under section 20 of the Act of 2003 in relation to that claim before the date of such coming into operation, and

(ii)  that assessment was not, or was deemed not to have been, accepted in accordance with that Act.’

The Bill was last week passed by both Houses of the Oireachtas and is expected to be signed into law by President Higgins imminently.

Having regard, therefore, to the terms of S.30 of the Bill, it would appear to follow that the Guidelines will apply to:

1. personal injuries actions in respect of claims made to the Injuries Board on or after the date of commencement of S.99 of the 2019 Act;
   and/or
2. personal injuries actions in respect of claims made to the Injuries Board before that date but which have not by that date been formally assessed by the Injuries Board.

The Book of Quantum will remain the reference point for those personal injuries actions issued on or following the date of commencement of S.99 of the 2019 Act, in circumstances where:

(i) an Assessment has been made in relation to the claim by the Injuries Board under S.20 of Personal Injuries Assessment Board Act 2003 (as amended) (the “2003 Act”) before S.99 was commenced;

and

(ii) that assessment was either rejected or deemed not to have been accepted.

Comment

Subject to clarification in due course as to the date of commencement of S.99 of the 2019 Act, there will – as was expected and previously indicated – be a distinction to be made between those personal injuries claims which are still ‘in’ the Injuries Board process at that date, and those claims in respect of which court proceedings have either already issued, or where an Authorisation has been issued from the Injuries Board permitting such proceedings.

The former category will be subject to assessment by reference to the Guidelines (whether by the Injuries Board in the first instance or the Court in due course); and the latter category will be subject to assessment by the Court by reference to the Book of Quantum (the ‘old’ regime).

It is perhaps interesting to note – to the extent that it will continue to afford the Court potentially significant latitude in respect of the assessment of damages for those cases in respect of which the Book of Quantum will still apply – that the various proposed amendments to S.22 of the 2004 Act largely leave sub-section (2) unchanged[2]. That being the case, whilst a Court hearing an action to which the ‘old’ regime applies shall be obliged to have regard to the Book of Quantum, it will not be prohibited from also having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action.

It is likely that amongst such ‘matters other than the Book of Quantum’ will be historical case law and precedent – which will continue to be important and relevant in any event in relation to the assessment of damages in ‘new’ claims, particularly claims falling into the higher (and wider) upper brackets of the Guidelines. It is also quite possible, however, that another such matter to which regard may be had could in fact be the impact of the Personal Injuries Guidelines themselves.

[1] Minister McEntee statement on Personal Injury Guidelines in advance of Judicial Council meeting – 5 March, 2021
[2] Subsection (1) shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action.