The state is bracing for a series of constitutional challenges to new personal injury guidelines that have reduced award levels.
The guidelines entered into force in April after being drafted by a judicial commission and approved by a vote of the Judicial Council, made up of the entire judiciary.
So far this month, two cases have been filed in the High Court requesting declarations that sections of the Judicial Council Act are unconstitutional. Another case calling for similar statements is expected shortly.
The first case filed was plenary action taken by Carmel Mulligan, a nurse from Kilcullen, County Kildare, who fractured her shoulder in a fall at Dublin Airport in February 2019.
The case has not yet been heard in open court, but the Independent Irish learned that she claimed that the legislation, under which the Judicial Council was authorized to formulate guidelines, violated the separation of powers and the independence of the judiciary.
Ms Mulligan filed with the Personal Injuries Assessment Board (PIAB) in October 2019, but said after “a prolonged delay” she was assessed under the new guidelines rather than the old Book of Quantum. This meant that she had been offered a lower price.
However, she does not dispute the processing of her request by PIAB. Rather, his action is directed against Ireland and the Attorney General and largely focused on
used on the legislation underlying the guidelines.
His lawyer, Robert Coonan, said he believed the procedure would affect how personal injury cases would be handled “from now on.”
“They raise very serious problems concerning the separation of powers and the oath of office of judges,” he said.
âThe complainant’s concern is that this legislation was enacted not by the Oireachtas but by the Judicial Council, which includes the judges of this country.
âThe ensuing concern is that any judge who will now be called upon to decide the question of constitutionality will have to consider his own views with respect to the injury guidelines, as it is a constitutional guarantee that a claimant has the right to an impartial hearing.
Opinions were divided between judges on whether to adopt the guidelines. They were accepted by a margin of 83 votes to 63.
In her proceedings, Ms Mulligan argues that parts of the law do not comply with section 35.2 of the Constitution, which requires all judges to be independent in the performance of their duties.
She says the law is unconstitutional because it requires or permits any judge to play a role in formulating or adopting prescriptive guidelines for cases that they do not judge themselves.
Ms Mulligan also argues that the law is unconstitutional because of the mandatory and coercive nature of the obligations imposed on members of the judiciary with regard to the drafting, adoption and application of guidelines.
The court this week heard judicial review proceedings brought by Bridget Delaney, a Waterford woman, against PIAB after it awarded her â¬ 3,000 for a broken bone after she fell on a trail.
In the context of her case, she seeks declarations that the Judicial Council acted outside its powers in adopting the guidelines and that the provisions of the law are contrary to the constitution and the European Convention on Human Rights. man.
Both cases may need to be heard by a recently appointed judge who was not a member of the Judicial Council when it adopted the guidelines.