About this case:

• Citation:
  [2024] IESC 10
• Court:
  Supreme Court

In this landmark case, Mr Justice Peter Charleton, Mr Justice Gerard Hogan, Mr Justice Maurice Collins, Ms Justice Mary Faherty and Mr Justice Robert Haughton each delivered judgments on complex issues of law which arose before the seven-judge Supreme Court.

These included the separation of powers, democratic accountability, delegated legislation, the independence of the judiciary, statutory construction, constitutional construction, the limits of judicial competence, retrospectivity, vested rights, equality, affirmation of secondary legislation by subsequent legislative enactment and the nature of what guidelines are.

Background

On 12 April 2019, the appellant tripped on a defective footpath in Co Waterford. She sustained injuries to her knee and an ankle fracture, resulting in her requiring a medical boot for a month. The appellant was not expected to have any long-term sequelae beyond some swelling for up to nine months.

The appellant was advised that based upon the Book of Quantum, being the relevant point of reference for valuing general damages at that time, her injuries could warrant an award of up to €34,000. The appellant subsequently applied to the Personal Injuries Assessment Board (or PIAB, as it then was) on 4 June 2019.

On 27 March 2021, the Family Leave and Miscellaneous Provisions Act 2021 was signed into law. The 2021 Act amended the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act 2003, having the effect that where a court was required to assess personal injuries, it was obliged to have regard to the Personal Injuries Guidelines and to state in writing their reasons for departing from same.

PIAB issued its assessment in respect of the appellant on 13 May 2021 under the Guidelines. By reference to the Guidelines, PIAB valued her general damages at €3,000.

The High Court

The appellant brought judicial review proceedings as against the respondents, challenging the basis for the drawing up and passing of the Guidelines and asserting inter alia that PIAB erred in law in assessing the value of her injuries under the Guidelines instead of the Book of Quantum.

Mr Justice Charles Meenan refused the reliefs sought, finding inter alia that economic, social and commercial conditions have to be accounted for in fixing levels of awards, that the 2019 Act had clearly set out principles and policies to be applied and these were methodically followed by the Personal Injuries Guidelines Committee in drawing up the Guidelines, which were later reviewed and passed by the Judicial Council.

Mr Justice Meenan also found inter alia that the requirement for the court to have regard to the Guidelines and to give reasons for departing from them was not an encroachment on its independence. The High Court concluded that PIAB had not erred in its assessment, and ruled that the appellant’s constitutional rights did not include a right to a particular sum of damages, but rather to have damages assessed in accordance with well-established legal principles.

The appellant was subsequently granted leave to bring a ‘leapfrog’ appeal before the Supreme Court.

The Supreme Court

Before the Supreme Court, the appellant contended inter alia that the Guidelines are a form of law and so were the result of an impermissible delegation of the Oireachtas’ legislative power to the judiciary. The appellant also contended inter alia that that the provisions giving legal effect to the guidelines are contrary to Article 35.2 of the Constitution providing for the independence of the judiciary.

A majority of the court found that the Guidelines were legally binding, with certain of the judges considering that the Guidelines were a type of “hard” law which recast the entire personal injuries landscape and were only to be departed from where there is no reasonable proportion between the Guidelines and the award which should otherwise be made.

Mr Justice Gerard Hogan observed: “The essential neutrality of judicial adjudication and the disinterested application of the law is irrevocably compromised if judges are seen to have been involved in the making of laws affecting the substantive law which they are then called upon to apply.”

As such, the majority found that s.7(2)(g) of the 2019 Act which required the Judicial Council to adopt the Guidelines is unconstitutional, being contrary to the independence of the judiciary as guaranteed by Article 35.2 of the Constitution.

However, a majority of the court also determined that the Guidelines were then independently ratified or confirmed by the Oireachtas and were given legal effect by the 2021 Act, and as such, the Guidelines were in force in law in their current form. Mr Justice Collins indicated that “legislative intervention will be required to permit the adoption of any further personal injury guidelines (and any sentencing guidelines)”.

The appellant also contended that the Guidelines were impermissibly imposed in a retrospective manner depriving her of her asserted right to be assessed under the Book of Quantum, and that the Guidelines reducing her potential award infringed her property rights, her rights to bodily integrity and to equality.

A majority of the court disagreed with this contention, deciding inter alia that the right of the appellant to seek an assessment was not in any way altered by the legislation, with her cause of action and entitlement to full compensation for her injuries remaining effective. As such, the 2019 Act did not operate in an unconstitutionally retrospective manner.

The majority explained inter alia that the appellant had no entitlement to have her claim assessed by reference to any earlier guidelines than those passed by the Judicial Council on 6 March 2021 and which were signed into law on 24 April 2021, with Mr Justice Charleton summarising that the appellant “did not have any vested property rights as to the manner, or result, of any assessment of her grazed knee and fractured ankle”.

Mr Justice Collins agreed that the appellant “has no constitutional right to have her claim for damages for pain and suffering assessed at a particular level or by reference to any particular date — whether the date of her accident or the date of her application to PIAB. In that respect, a claim for damages for pain and suffering is qualitatively different to claims to vindicate a pre-existing property right…”

Conclusion

Accordingly, the Supreme Court proposed the following orders:

1. A declaration that s.7(2)(g) of the 2019 Act is unconstitutional in its current form;
2. A declaration that the Guidelines were given force of law by virtue of s.30 of the 2021 Act and consequently are in force;
3. A declaration that PIAB did not err in applying the Guidelines to the appellant’s claim in May 2021;
4. An order that, save for the declaration of unconstitutionality and the order for costs, dismissing the appeal;
5. An order awarding the appellant her costs as against Ireland and the Attorney General, with PIAB to bear its own costs.

Delaney v. The Personal Injuries Board & Ors [2024] IESC 10