We look at the recent judgement of O’Brien -v- Personal Injuries Assessment Board: Supreme Court,Judgment delivered by Mrs Justice Denham on December 19th, 2008, Mr Justice Murray concurring.
If an applicant to the Personal Injuries Assessment Board (PIAB) wishes to have a legal representative, he or she is entitled to have one. However, PIAB is entitled to send the claimant copies of correspondence with the solicitor, in order to keep the claimant informed.
This case came as an appeal by PIAB to a ruling of the High Court upholding the right of a claimant to PIAB to be represented by a solicitor in his or her dealings with the board. The High Court had declared that PIAB, by corresponding directly with the applicant, was acting in breach of Section 7 of the Personal Injuries Board Act 2003 and without authority. This declaration was appealed. The Law Society appeared as an amicus curiae (friend of the court).
The case arose when the applicant, Mr O’Brien, was injured at work in a meat factory, when an overhead line carrying carcases fell on him. He returned to work, but was unable to work to the same level as previously, and suffered pain. Two years and six months after the accident he contacted a solicitor.
He was told he had to initiate his claim by applying to the PIAB. The three-year limitation period would run its course within 11 weeks of contacting his solicitor, and the solicitor, Denis Boland, was anxious to protect his client’s position by issuing a plenary summons in the High Court. He rang PIAB requesting that it deal directly with him.
Mr Boland completed the application form on behalf of his client and his client signed a “confirmation and authority” document giving his solicitor authority to act on his behalf with PIAB and in any subsequent court proceedings. It acknowledged that PIAB would not pay the applicant’s legal costs.
PIAB wrote directly to Mr O’Brien, which was at variance with the authority that had been given to it. Mr Boland wrote to it complaining that it had not recognised the authority. He also indicated his difficulties in getting a medical report, and his concern that he might not obtain it before the expiry of the time limit under the statute of limitations.
He obtained a phone call from PIAB indicating that it would not deal directly with solicitors, but indicating that it would provide copies of its correspondence with Mr O’Brien.
He was also told the claim would not be registered without a medical report.
He then initiated judicial review proceedings seeking an order directing PIAB to record and register the claim to stop the statute of limitations from running, and an injunction was sought directing PIAB to stop interfering in the solicitor/client relationship.
In the High Court Mr Justice MacMenamin held that there was a right to legal representation in administrative procedures when the matters in issue may have serious consequences or impinge on a party’s rights.
He found that there was no warrant under Section 7 of the 2003 Act for refusing to deal with a solicitor.
He made a declaration that, in declining to accept or act on the authorisation, and by corresponding directly with the applicant, PIAB was acting in breach of the Act and without authority under any other provision of the Act.
Counsel for PIAB said that it was an administrative body with an administrative task, which can have no legal consequences for a person. It made assessments in easy claims, and did not decide on disputes. The policy of not dealing with solicitors assisted in the swift processing of claims and reduces unnecessary legal costs.
Counsel for the applicant pointed out that there were legal consequences of a PIAB decision in that if an applicant did not accept an assessment and went to court, he was in danger on costs. In this case there were also statute of limitations issues.
Counsel for the Law Society said that if the Oireachtas had intended lawyers to be excluded by PIAB it would have said so in the legislation, but it did not.
The right to legal representation was so fundamental that the court should be reluctant to conclude its exclusion was inferred in the Act.
Mrs Justice Denham said that the Act was to enable the making of assessments in compensation for personal injuries without the need for legal proceedings. It created PIAB as an alternative forum for such assessments. The establishment of alternative methods of resolving issues has great merit, for example, in relation to family law issues, she said.
PIAB was established by legislation and if a function or power was not to be found in the 2003 Act it did not have such power or function. Legal representation is a right of special importance in common law jurisdictions where the legal system is adversarial. This right does not apply solely to litigation in court. The PIAB process is not a court, but it may conclude the claim with an assessment, or may be preliminary to court proceedings.
Any restriction to legal representation would have to be addressed clearly in legislation, either expressly or inferred if it were compellingly clear from the words of the statute. The Act did not expressly exclude lawyers.
Section 7 of the Act stated that nothing in the Act was to be read as affecting the right of any person to seek legal advice. It had been argued that this did not mean a right to legal representation, but if the Oireachtas had intended to exclude lawyers from PIAB it would have said so.
PIAB had stated that its policy derived from the statutory provision that it have all such powers as are necessary or expedient for, or incidental to, the performance of its functions under the Act, and that this policy assisted in the reduction of costs and in efficient management.
Mrs Justice Denham said she rejected this, stating that it was not a sufficient reason to interfere with a fundamental right. She also pointed out that costs were not an issue, as the claimant could not recover his or her costs from PIAB. Nor had the claim of efficiency been proved.
PIAB dealt with respondents’ agents and insurers, thus the policy of not dealing with legal representatives did not apply to respondents. Therefore its policy was one-sided and, given that claimants by their very nature lacked the skill or expertise of respondents’ agents or insurers, it would be open to question on grounds of fairness.
The process before PIAB had serious consequences for a client. There are many situations that are not adjudicative, but where a person may wish to have a lawyer by his side, she said.
Because a person who rejected a PIAB assessment and went to court could be liable for the respondent’s costs if the award was lower than that offered by PIAB, a claim before PIAB should be processed very carefully and professional guidance may be very important.
She said she was satisfied that the Act of 2003 could not be construed to confer a power on PIAB to interfere with the applicant’s right to legal representation, a constitutionally protected right, and indirectly to interfere with the applicant’s right of property.
As a statutory body initially in lieu of court proceedings, with a procedure intended to be client-friendly, PIAB was not excluded from informing an applicant who was legally represented of the progress of the claim by copying the correspondence to him or her.
A client might chose to be legally represented for many reasons. If the Oireachtas had intended PIAB to be a lawyer-free zone it would have said so. PIAB had no power to establish such a policy. This policy was an interference with the solicitor/client relationship, which has no foundation in the Act of 2003. An applicant was entitled to have legal representation if he or she wished to do so.
Mrs Justice Denham affirmed the order of the High Court and dismissed the appeal. However, she said this did not mean that PIAB could not have a policy of also informing the claimant of the position on his case, so it could send copies of all letters to the claimant. This would keep the claimant informed, was consistent with PIAB’s policy and was within its functions under the Act.