The decision and effects of the Supreme Court decision in Delaney v. PIAB & Ors.

In this article, Louise Smith, Partner in RDJ’s Litigation and Dispute Resolution Team discusses the Supreme Court decision published yesterday in the case of Delaney v. PIAB & Ors. which held by a majority of 5:2 that the Personal Injuries Guidelines which were enacted into law in April 2021, are constitutional and valid, and confirms that PIAB and the Courts have been correct in considering same when determining the level of general damages to be awarded in personal injuries claims. To use the words of Mr Justice Peter Charleton (presiding), the case is of “systemic importance” and “will influence thousands of cases currently awaiting judicial analysis and multiples of that into the future”.

The Background

Ms. Delaney suffered an undisplaced fracture of her ankle which required her to wear a walker boot for 4 weeks when she tripped and fell on a footpath in Waterford on 12 April, 2019. Her Solicitor had advised her that her injuries could attract general damages in the region of €18,000 - €34,000, which was reasonable considering the Book of Quantum was in being at the time. Ms. Delaney’s Solicitor lodged her application with PIAB. However, whilst her application was in PIAB for assessment the Personal Injuries Guidelines (“the Guidelines”) came into force and ultimately PIAB assessed general damages in the sum of €3,000.

The case before the Supreme Court

In these proceedings the appellant contended that the Guidelines were an impermissible delegation of legislative power, that they were contrary to the independence of the judiciary and that they were impermissibly retrospective in nature infringing on the appellant’s property rights, right to bodily integrity and equality.

If the Supreme Court was to find in favour of the appellant in this case the rippling effect of such a decision would have been significant given that since their enactment in April 2021, the Guidelines have been applied in thousands of personal injuries actions considered by PIAB and by our Courts across all jurisdictions.

The Decision

The majority of the Court (5:2) held that the Guidelines are legally binding and in short, the status quo remains.

Impermissible delegation of legislative powers?

In response to the suggestion that the drafting of these Guidelines by members of the judiciary was an impermissible delegation of legislative power, the judgment highlighted that since the enactment of the Courts of Justice Act 1924 there is nothing unlawful in tasking a body with fixing secondary legislation, provided that legislation is subsequently affirmed by the Oireachtas.

It is noted that a subordinate body cannot be “vested with an absolute and unparalleled discretion” however, having carefully considered the provisions of the 2019 Act, the majority confirmed that the Oireachtas was entitled to delegate to another body the function of adopting personal injuries guidelines and did so in a constitutionally effective manner here.

The Judicial Independence issue

Section 7(2)(g) of the Judicial Council Act 2019 (the 2019 Act”) required the Judicial Council to adopt the personal injuries guidelines prepared and submitted by the Personal Injuries Guidelines Committee to the Board and to adopt any draft amendments to personal injuries guidelines prepared and submitted by that Committee, as soon as practicable, and in any event not later than 12 months, after such submission.

Pursuant therefore to this section, the entire judiciary (albeit qua Council and not as individual judges) have been co-opted by statute to adopt the Guidelines, a heretofore unprecedented step in Irish legal history.

Ms. Delaney contended that what the Council was mandated to do, pursuant to this section of the Act, constituted an interference with the institutional independence of the judiciary and that by virtue of being mandated to adopt the Guidelines, the Council “has been adjudicating on the fairness or otherwise of the manner in which the courts in the State have been administering the law”.

The Supreme Court held that the fact that the relevant provision of the 2019 Act involves the entire judiciary, and that there was a compulsory obligation imposed on them to adopt the guidelines, was inappropriate.

Whilst it is accepted that a Judge can carry out a non-judicial function, Justice Faherty noted that precedent to say that this could only be done with the consent of the judiciary was persuasive.

Justice Haughton in his judgment states that there was “no justification for taking the extraordinary step of compulsorily requiring the Judicial Council, of which body all Judges are members, to adopt the Guidelines” and that in doing this the independence of the judiciary had been impaired and the separation of powers had been breached. He stated that the public confidence in the integrity of the judiciary was seriously undermined if the legislature can impose on the body of judges the task of effectively legislating. He finds the fact that the adoption of the Guidelines was not unanimous, yet once adopted had to thereafter be upheld by the same body of Judges, to be unquestionably undesirable.

This was the only aspect of the Appellant’s claim before the Supreme Court where she was successful with a majority of the Court (4:3) finding that section 7(2)(g) of 2019 Act is unconstitutional and therefore invalid in their present form.

It should be noted that there is no objection, as such, to the Council having the power to issue guidelines. The constitutional objection, however, noted by Justice Hogan, is rather “to the Council being given the power to issue legally binding guidelines which have normative effect”.

Whether sections 30 and 31 of the Family Leave and Miscellaneous Provisions Act 2021 had the effect of validating the Guidelines?

These sections of the 2021 Act amended 2019 Act and set out the effect and consideration that must be given to the Guidelines and notes that where these Guidelines are departed from, reasons for this must be given.

In March 2024, the Supreme Court asked the parties for further submissions on whether it could be said that the subsequent parliamentary confirmation of the Guidelines, as adopted by the Council, gave them statutory effect?

Given that s.7(2)(g) was held to be unconstitutional, then without the Guidelines being separately and independently given legal effect by legislation, enacted after the 6^th March, 2021, the date of their adoption by the Judicial Council, the Court would undoubtedly have had to find in favour of the Appellant.

However, as this Act was signed into law on the 27^th March, 2021 and later commenced on the 24^th April, 2021, the majority (6:1) upheld that this provision has statutory effect, which in turn means that the Guidelines cannot now be amended save by further legislation enacted by the Oireachtas.

The retrospective application of the Guidelines and whether this infringed the appellants constitutional rights?

In relation to the retrospective application of the Guidelines and the argument that this infringed on the appellant’s property rights, right to bodily integrity and equality, the majority confirmed that a plaintiff never had a vested right to have damages assessed at any particular level. The judgment of Mr. Justice Charleton succinctly explained the basis for this finding. He pointed out that no right to seek an appropriate assessment is in any way altered by the legislation. No one in the past in any personal injury claim was ever guaranteed any personal right to recover at a particular level. There is a right to damages, assessed by a judge in a court and subject to appeal, where a duty of care has been breached and this has not been changed by the Guidelines.

So what are the practical implications of the Judgment in the area of personal injury claims?

• All cases where a monetary assessment of damages was not made by PIAB before 24 April, 2021 or where proceedings had not issued in advance of that date are obliged to have regard to the Guidelines.
• The Guidelines are not “prescriptive or mandatory” and the judiciary are entitled to depart from them, though to do so they must state their reasons for doing so.
• In light of the unconstitutionality of s.7(2)(g), if further personal injuries guidelines are to be adopted in the future, some different mechanism for the adoption of the guidelines must first be prescribed by the Oireachtas. Justice Collins in his Judgment noting that this might involve the Oireachtas legislating directly to impose a set of guidelines on the courts or alternatively, the Oireachtas could give the power to make guidelines to a body other than the Judicial Council, which guidelines would then bind the courts. One wonders if it would be simply adequate to give this power to the Council Committee, rather than the Council as a whole, thereby removing the mandatory nature of the section to impose an obligation on the judiciary as a whole to legislate.

• In light of this, I think it is safe to say that the current review of the Guidelines which is currently being undertaken will undoubtedly be significantly delayed in their ability to make recommendations or amendments to the Guidelines.
• Whilst not relevant in the personal injury sphere, it is also clear from this Judgment that the work currently being undertaken by the Judicial Council to review and draft sentencing guidelines in criminal matters will also need to be reconsidered.

For Ms. Delaney

Ms. Delaney still has a road to travel with her claim. Let’s not forget that whilst she commenced proceedings against the Local Authority those proceedings are yet to be determined. The issue of liability and her entitlement (if any) to recover damages is still uncertain and it will certainly be interesting to see when her case is heard before the judiciary, if she, like many others before her, will be awarded damages far in excess of the sum for general damages as assessed by PIAB, when considering the new guidelines.