|O'Brien -v- Personal Injuries Assessment Board|
| IESC 71|
Supreme Court Record Number:
|169 & 170/05|
High Court Record Number:
|2004 785 JR|
Date of Delivery:
Composition of Court:
|Murray C.J., Denham J., Macken J.|
Link to Judgment
THE SUPREME COURT
[S.C. No: 169 & 170/2005] Murray C.J.
The Personal Injuries Assessment Board
and Amicus Curiae
The Law Society of Ireland
Judgment delivered the 19th day of December, 2008 by Denham J.
1. The right to legal representation is at the core of this appeal.
2. This is an appeal by the Personal Injuries Assessment Board, the respondent/appellant, hereinafter referred to as 'PIAB', from the judgments of the High Court (McMenamin J.)  2
I.R. 1, and  2 I.R. 1 at p.40. Declan O'Brien, the applicant/respondent, is referred to as 'the applicant'. The Law Society of Ireland is before the Court as an amicus curiae by order of this Court.
3. There was a single issue determined by the High Court and that issue is before this Court on appeal.
4. The High Court declared, on the 11th March, 2008, that:-
"[PIAB] in declining to accept or act upon the authorisation dated the 16th August, 2004 (described as "a confirmation and authority by client”) by corresponding directly with the Applicant (and copying such correspondence to his Solicitors) is acting in breach of s. 7 of the Personal Injuries Assessment Board Act 2003 or without authority under any other provision of the Act."
5. Having regard to that declaration the High Court did not find it necessary to rule on the balance of the issues referred to in the list of issues agreed between the parties.
6. The facts of this case were stated by the learned trial judge. With the benefit of his findings, I summarise the relevant facts in the following paragraphs.
7. The applicant is a single man who, at the relevant time for this action, was employed at the premises of Galtee Meats, in Co Westmeath, as a boner in a meat factory, and was working on a sub-contract to a company known as Ard Meats Limited. In his job he boned carcasses of beef at a table.
8. The applicant alleges that in the course of his employment on the 5th November, 2001 he was involved in an accident. He claims that an overhead line which was carrying carcasses of meat collapsed, as a result of which he was struck on the back and sustained injuries. He was taken to hospital and had a bone scan. As a result he was certified 'off-work' for a period of approximately four months. It is claimed that he had a gradual return to work with periods off work when his back pain became acute. The applicant returned to work in February 2002. However, he claims that he was able to produce only 75% of his previous output and that his earnings have suffered. He claims that he suffers pain and aches at the end of a day's work.
9. The applicant did not commence proceedings immediately after the accident. However, on the 12th August, 2004 he attended at a solicitor's office and instructed Mr. Denis Boland of P.V. Boland & Co.
10. The applicant was told that under the Personal Injuries Assessment Board Act 2003, 'the Act of 2003', his claim would have to be initiated by applying to the PIAB.
11. Time was running in the case. The three year limitation period would run its course approximately eleven weeks after the applicant consulted his solicitor. Prior to the Act of 2003 the applicant's solicitor would have protected his position regarding the three year time limit by issuing a plenary summons in the High Court.
12. Mr. Boland, the applicant's solicitor, on the 16th August, 2004 telephoned and had a conversation with a Ms. Jo Crowley, at a call centre which acted as an agent to which PIAB outsourced the business of processing claims. Mr. Boland gave particulars of the claim and expressed his concern regarding the Statute of Limitations. He indicated that he would be sending an authority to PIAB on behalf of the applicant, this would require PIAB to deal directly with him as the applicant's solicitor. Mr. Boland was asked for the applicant's phone number.
13. Within a few hours Ms. Crowley contacted the applicant on his mobile phone. By the end of the conversation the applicant had formed the view that he was being told by Ms. Crowley that he did not really need the services of a solicitor and that all he needed to do was to send a medical report to the Board.
14. The learned trial judge held that the applicant's view was erroneous.
15. The applicant was resentful of what he perceived as the position of PIAB.
16. Mr. Boland completed the application form, which he had obtained from PIAB. He also completed a 'Confirmation and Authority' document signed by the applicant. By this document Mr. Boland had authority: (1) to act with reference to the applicant's claim before PIAB, (2) to receive all settlement cheques, (3) solely to deal with all correspondence on behalf of the applicant, and (4) to act in any subsequent court proceedings. The document also recited the applicant's liability for all necessary outlay and legal costs incurred in proceedings before PIAB and acknowledged that PIAB would not pay the applicant's legal costs.
17. Mr. Boland wrote to the consultant surgeon who had treated the applicant. He was concerned because he had not received a medical report. He was also concerned that in the absence of a medical report the application to PIAB would not be considered complete. In other words he intervened to expedite matters.
18. On the 19th August, 2004, PIAB wrote directly to the applicant. This was contrary to the procedure proposed by the applicant and Mr. Boland and at variance with the authority which had been given to PIAB.
19. On the 24th August, 2004, Mr. Boland wrote to PIAB complaining that they had not recognised the authority he had furnished, which authorised him to act for the applicant. He also indicated his difficulties in getting a medical report and his concern about not getting one before the expiry of the three years under the Statute of Limitations.
20. On the 26th August, 2004, Mr. Boland received a call from a Mr. Hewson of PIAB indicating that it would not deal directly with solicitors, but that PIAB would furnish copy correspondence to Mr. Boland.
21. It was stated that the applicant's claim would not be registered without a medical report.
22. There was correspondence and telephone calls in September. It emerged that PIAB would register the claim if the solicitor had not obtained a medical report for his client by the 31st October, 2004.
23. On the 7th September, 2004, the applicant initiated judicial review proceedings seeking an order of mandamus directing PIAB formally to record and register the applicant's claim to stop the Statute of Limitation from running in respect of his claim, and to register his claim, having recorded it on the 19th August, 2004. An injunction was also sought directing PIAB to stop and cease the interference in the client/solicitor relationship between the applicant and his solicitor, and an order seeking that PIAB abide by the irrevocable authority signed by the applicant on the 16th August, 2004, in relation to his claim.
24. There were appearances in the High Court. The medical report arrived from the medical consultant, signed on the 18th October, 2004, and was furnished to PIAB, and the claim was registered on the 22nd October, 2004. Therefore, it was unnecessary to pursue the relief of mandamus.
25. On the 1st December, 2004, the Law Society was permitted to appear in the proceedings as an amicus curiae,  3 I.R. 328.
26. Issue Paper
An issue paper was agreed by counsel for the parties. The first issue was whether PIAB, in declining to accept or act upon the authorisation dated the 16th August, 2004, and by corresponding directly with the applicant (and copying such correspondence to his solicitor), was acting in breach of s.7 of the Act of 2003.
27. The High Court
The High Court held that PIAB had not succeeded in demonstrating how its interference with the lawyer/client relationship was necessary, expedient or incidental to its functions.
28. The learned High Court judge referred to several significant features of the case to which he had regard, being:-
(d) the specific recognition within the terms of the Act of 2003 of the rights to legal advice. This if anything highlights the potentially serious legal consequences of the entire procedure for a claimant;
(e) the gravity of the consequences of the procedures and their significance for the claimant. This is underscored by the fact that in certain circumstances, such as in respect of vulnerable claimants (s. 29) and withdrawal of applications (s. 47), the issues arising are of such seriousness that the Act of 2003 recognises the desirability of claimants obtaining legal advice before further steps are taken."
29. The learned trial judge considered that there is implicit in the case the fundamental issue of the right to retain legal representation in contentious matters. He held that the right to legal representation has application in administrative procedures when the matters in issue may have serious consequence to the parties or impinge upon their rights.
30. The High Court held, at p.38:-
"At a number of points the Act of 2003 provides for the claimant obtaining legal advice. Why is this so? Clearly, it is because such steps and such decisions may have serious legal consequences for a claimant. The consequence of successfully pursuing a claim before [PIAB] is therefore by no means insignificant. The claimant may obtain compensation at an early date and such compensation is achieved without risk of an adverse award of costs."
31. The learned trial judge continued, at p.39 that:-
"Thus, even if I accept that the procedures before [PIAB] are administrative in nature, I am satisfied that by reason of their complexity, importance and potential consequences, they are such as to justify, not only access to legal advice, but also, such rights to legal representation as have been identified by the applicant in this case. Nor are such rights rendered irrelevant by the fact that [PIAB] does not conduct hearings."
32. The learned High Court judge concluded by holding that the impugned conduct is without warrant under s.7 or any other section of the Act of 2003.
33. In light of the above decision the High Court held that it was unnecessary to consider any other issues.
The High Court ordered a declaration,  2 I.R. 40, in the following terms:-
"[PIAB] in declining to accept or act upon the authorisation dated 16th August, 2004 (described as 'a confirmation and authority by client'), by corresponding directly with the applicant (and copying such correspondence to his solicitors), is acting in breach of s.7 of the Personal Injuries Assessment Board [Act] 2003 or without authority under any other provision of the Act."
PIAB filed a notice of appeal against the judgments and order of the High Court. Thirty four grounds of appeal were filed, referring to submitted errors of law and/or fact of the High Court. PIAB seeks to have the applicant's claim dismissed and for an order for costs in both the High Court and this Court.
The applicant cross-appealed from the judgments and order of the High Court insofar as it limited the costs awarded to the applicant by declining to award certain specified costs. The cross-appeal will not be addressed in this judgment but will be a matter for consideration at a later stage in the proceedings.
37. Submissions on behalf of PIAB
Oral submissions on behalf of PIAB (written submissions having been filed) were made to the Court by Mr. Eoghan Fitzsimons, S.C.. Counsel referred to two issues of principle which arise on this appeal. On the one hand, the right to legal representation and that there should be no interference with the solicitor/client relationship. On the other hand, that PIAB is in charge of running its organisation and that it is not for others (e.g. the Law Society) to tell it how to conduct its business. Counsel referred to a number of matters, inter alia, (i) PIAB considered itself to be an administrative body with an administrative task, which can have no legal consequences for a person. Counsel referred to pages 20 to 23 of the judgment, which sets out PIAB's practice with regard to solicitors acting for claimants, and said these findings were not contested by PIAB. (ii) It was submitted that PIAB acts solely in an administrative capacity, and that there are no direct determinative consequences to the applicant, it does not determine a dispute. (iii) It was submitted that the functions of PIAB are limited, that PIAB makes assessments in easy claims. Complex cases are excluded. The assessments are not binding on the parties, hearings are specifically excluded, in this purely administrative task. (v) Counsel stressed that PIAB's case was that the Act of 2003 envisaged that PIAB could deal directly with the client. That the applicant had not demonstrated that his rights override PIAB's rights to run their organisation as the Oireachtas intended it to do. Counsel made the argument that PIAB has the right to override a person's wish to have a solicitor represent him. (vi) Counsel accepted that there is a right to be legally represented, but submitted that a person can be legally represented but that PIAB has the right to write directly to an applicant, and that PIAB would recognise the legal representation. (vii) Counsel submitted that while no specific provision of the Act of 2003 expressly authorised the practice of PIAB, it is implied, or is covered by section 54. (viii) Counsel submitted that there is no basis upon which to find that PIAB's practice was in breach of section 7. (ix) As to whether the practice is authorised by any other section, counsel referred to and relied upon section 54(1) and (2). Reliance was placed on the terms "necessary", "expedient", or "incidental". (x) It was submitted that the policy assists the swift processing of claims, omits delay, and reduces unnecessary legal costs. (xi) The Oireachtas had passed the legislation in the interest of the common good, to reduce costs and expenses. (xii) Counsel submitted that the learned trial judge erred in his approach to the issue, that he went too far in construing the statute, that he accepted that the constitutional right to legal representation lay with the applicant in dealing with PIAB.
38. Submissions on behalf of applicant
Oral submissions were made to the Court on behalf of the applicant (written submissions having been filed) by Mr. Paul Gardiner, S.C. He attacked the assertion that the policy assisted swift processing of claims, inter alia. He accepted that PIAB were entitled to adopt policies that were expedient, objectively so, but not when only subjectively so viewed by PIAB. It was submitted that the policy was an interference in the solicitor/client relationship. Examples were given of letters required under PIAB's scheme. Further, that PIAB gives advice to applicants which affects the solicitor/client relationship. Also, that PIAB is involved in contentious issues, for while liability is not in issue, quantum is. Counsel submitted that the policy established by PIAB is to cut out solicitors but that the Act does not say that. The Act of 2003 does not alter the solicitor/client relationship, but simply adds the additional administrative process. Further, that there are legal consequences, e.g. if an applicant does not take an assessment and then goes to court he is in peril on costs. Also, obviously in this case, there are the Statute of Limitations issues.
39. Submissions on behalf of The Law Society
Mr. Dermot Gleeson, S.C., counsel on behalf of the Law Society, which had also filed written submissions, made oral submissions to the Court. He submitted that if the Oireachtas intended lawyers to be excluded it would have said so, but it did not. He submitted that the issues before PIAB have substantial consequences. He pointed out that the right to legal representation arises outside litigation. He submitted that the contention of PIAB that the Act of 2003 prohibits legal representation is unsustainable. He submitted that the right to legal representation and to legal advice is so fundamental that a court should be very slow to say that its exclusion was inferred in the Act. Counsel drew the Court's attention to the different approach by PIAB to a claimant and to a respondent.
I have considered carefully the oral and written submissions of the parties and the amicus curiae. I would affirm the order of the High Court, and dismiss the appeal. PIAB should recognise the right to legal representation and contact the solicitor of the applicant accordingly. However, that does not mean that PIAB may not have a policy of also informing a claimant of the position of his case as it proceeds. Thus a copy of any letter PIAB sends to the applicant's solicitor may be sent by PIAB to the applicant at the same time. My reasons are as follows.
41. Alternative resolution
The long title of the Act of 2003 provides that it is an Act to enable, in certain situations, the making of assessments without the need for legal proceedings to be brought for compensation for personal injuries, to prohibit, in those situations, in the interest of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the assessment or certain other circumstances apply, to establish a body, PIAB, and define its functions. Thus it marks the creation of PIAB as an alternative forum for assessments in personal injury cases, in certain situations, and to prohibit the initiation of the process in the courts. This reflects a policy decision of the Oireachtas to establish a board, in the alternative to or prior to court proceedings.
42. The establishment of alternative methods of resolving issues, alternative to court proceedings, has great merit in that issues more appropriate to alternative methods of resolution may be
decided outside the Courts. Thus, for example, the resolving of family law issues by mediation may be very beneficial and more appropriate for the family than the adversarial court process. Also, the arbitration assists the resolving of issues. Indeed, the Commercial Court uses case management very effectively so that issues which may be settled are, and the critical issues only, on which settlement may not be obtained, proceed. Thus, parties may be well served in general by having alternative methods of resolving issues.
43. PIAB was established by legislation and thus its functions and powers were created by statutes. If an alleged function or power is not to be found in the Act of 2003 then PIAB does not
have such a power or function. PIAB is an administrative body with administrative functions which apply to the assessment of damages prior to a case for damages proceeding in the courts.
44. Legal Representation
Legal representation is a right of special importance in common law jurisdictions where the legal system is adversarial. This right is referable to court proceedings, prior to court proceedings, and in situations where there may be serious consequences for a person and the Oireachtas has not exercised a constitutional balance excluding legal representation. The applicant has a right to access the courts and to litigate to recover damages for personal injuries. To advance these rights the applicant is entitled to legal representation. This right does not apply solely to litigation in court. While the process in PIAB is not a court it may conclude the claim with an assessment, or it may be a process preliminary to court proceedings. Thus the process before PIAB is a critical part of the applicant's claim.
45. Any restriction of the right to legal representation would have to be addressed clearly in legislation. It could be stated expressly in legislation. Or it could be inferred if it were compellingly clear from the words of the statute.
46. The Act of 2003 does not exclude expressly lawyers from acting for claimants in PIAB. The Oireachtas did not expressly state such intent in the legislation
47. Thus it is necessary to construe the Act of 2003 to see if it is compellingly clear from the words of the statute that the Oireachtas intended to bar lawyers from PIAB.
48. A key issue raised was the meaning of s.7 of the Act of 2003. Section 7 provides:-
"7.—(1) Nothing in this Act is to be read as affecting the right of any person to seek legal advice in respect of his or her relevant claim and no rule shall be made under section 46 that affects that right.
(2) Subsection (1) shall not be read as requiring any procedure to be followed by the Board or hearing to be conducted by it that would be required to be followed or conducted by a court were the relevant claim concerned to be the subject of proceedings."
Clearly this section protects the right of any person to seek legal advice. It has been submitted that this does not include a right to legal representation. However, if the Oireachtas had intended to exclude lawyers from PIAB it could have said that clearly. This would be the section of the Act relevant to the issue, and yet the Oireachtas did not expressly exclude lawyers.
49. As it is not stated expressly in the Act of 2003, it was for PIAB to indicate how its policy of writing to claimants and copying letters to solicitors may arise within the Act.
50. The High Court held that PIAB had not demonstrated how its interference with the lawyer/client relationship is necessary, expedient or incidental to its functions. This reflects the wording of s.54 of the Act of 2003. Section 54 provides that:-
"(1) The principal functions of the Board shall be—
(a) to arrange for the making, in accordance with this Act, of assessments of relevant claims the subject of applications to it under section 11.
(b) to prepare and publish a document (which shall be known as the “Book of Quantum”) containing general guidelines as to the amounts that may be awarded or assessed in respect of specified types of injury,
(c) to cause a cost-benefit analysis to be made of the legal procedures and the associated processes (including those provided for by this Act) that are currently employed in the State for the purpose of awarding compensation for personal injuries,
(d) to collect and analyse data in relation to amounts awarded on foot of, or agreed in settlement of, civil actions to which this Act applies, and
(e) to perform any additional functions conferred on the Board under section 55.
"(a) the fact that the matters in issue before [PIAB] are truly ones of substance. They relate to the applicant’s property right in his cause of action in tort. They are connected (albeit indirectly) with his constitutional right of access to the courts. These are matters of no small moment.
(b) The arrogation by [PIAB] to itself of the power to prescribe
(i) the form of authority, and
(ii) the manner in which communication shall take place between itself and claimants and/or their solicitors; this general practice albeit flexible in some aspects is significantly inflexible insofar as it relates to the applicant;
(c) the absence of an express authority contained within the terms of the Act of 2003 permitting of the adoption of such an approach. The approach imposes conditions which are not prescribed by any primary or secondary legislation;
51. PIAB asserted that not only was it entitled to adopt the policy which it did, but that it was obliged to do so under the Act. Further, that s.54(2), which states that the Board shall have all such powers as are necessary, or expedient for, or incidental to, the performance of its powers, empowers PIAB to deal directly with claimants, as that is advantageous to, and is practical, and assists, in the reduction of costs, and the advancement of efficient management. Further, that the policy can be justified under the doctrine of implied powers. I would reject these grounds.
52. PIAB is empowered to make assessments of relevant claims. It has such powers as are necessary, or expedient or incidental to the performance of its functions. The terms "necessary",
"expedient", or "incidental" should be considered disjunctively. PIAB submitted inter alia that they raised concepts which would be advantageous to or of a practical value to PIAB.
53. PIAB argued that the policy reduced legal costs and would lead to greater efficiency. The learned trial judge held that these were not reasons which could justify the policy. I agree, for, not only are they not sufficient reasons for such a policy which interferes with a fundamental right, but they are not valid. A claimant cannot recover his costs for legal representation at PIAB, thus costs are not in issue in PIAB. As to a claimant's expenses, it is a core concept in the common law that a person is entitled to choose to have legal representation. If in time it transpires that more claimants process their claim in PIAB by themselves, that is their entitlement. But if they wish, because of time constraints, or fear of dealing with institutions themselves, or any other reason, to have legal representation, then they are so entitled to, in circumstances where the Oireachtas has not excluded the exercise of that right. As is the norm, the legal representatives will have the interests of the claimant to the fore.
Nor has the claim of efficiency been proved. Indeed, the policy seems to make for more work. This was addressed by the learned trial judge, and I would not intervene in that analysis.
54. I am satisfied that the policy of PIAB has not been shown to be necessary, expedient or incidental to the functions of PIAB. I would affirm the judgment of the High Court on this aspect of the case.
55. The evidence in the High Court showed that PIAB dealt with respondents' agents and insurers, thus the policy of refusing to deal with legal representatives did not apply to the respondents.
Thus the submissions made by PIAB that it is required to deal with a claimant and not his/her agent was one sided. An equal approach is fair. Any other approach, especially as by their very nature claimants would not have the skill or expertise of respondents' agents or insurers, would be open to question on grounds of fairness, even if it were validly grounded on the Act, which it is not.
56. The Act itself contemplates that a claimant may deal with PIAB other than by himself, which by common practice means a solicitor. For example, s.79 of the Act of 2003 provides for the service of documents at a claimant's residence or "in a case in which an address for service has been furnished at that address". This illustrates that a person may choose how to deal with PIAB. If PIAB is given an address it should, unless there are good reasons to the contrary, comply with the request.
57. I would adopt and affirm the judgment of the High Court that the policy does not fulfil any function of the Act of 2003, does not expedite matters, and does not save costs.
58. PIAB submitted that it is a purely administrative body, that it is not a court, and that there are no proceedings before it. That the process is simply a postponement of court proceedings.
However, I am satisfied that the process before PIAB has serious consequences for a claimant. Thus, even if it is accepted for the purpose of the analysis that the process is purely administrative, the fact that there are serious consequences for an applicant is an important factor. It should be noted, however, that even though PIAB submitted that its decision is not determinative there are such examples. For example, an applicant may ask for an independent medical report, which would be arranged by PIAB. In that situation PIAB would be determining as between medical reports.
59. The fact that the process in PIAB is not adjudicative does not exclude the right to legal representation. There are many situations which are not adjudicative in which a person may wish to have a lawyer by his side. The lawyer places the person on an equal footing. It creates a situation which is even handed. The concept of equality may be noted in this situation where the policy of PIAB permits the respondents to have agents, but not the claimants. PIAB has no statutory warrant for such a policy.
60. Further, since s.51A(3) was inserted in the Act of 2003 by s.1 of the Personal Injuries Assessment Board (Amendment) Act 2007, if a claimant refuses an assessment and pursues a claim in the courts and at the conclusion of that case he fails to obtain an award greater than that made by PIAB, the claimant will not be entitled to his costs, and a court may, in its discretion, order the claimant to pay all or part of the respondent's costs. Clearly, as a consequence of this fact alone, and ignoring the many other significant factors, a claimant's claim before PIAB should be processed very carefully and professional guidance may be very important. The lack of legal representation could have serious consequences for a claimant.
61. As the exclusion of legal representation is not expressly provided for in the Act of 2003, it is necessary to construe the Act to see if it may be inferred. Several rules of construction were raised. I do not consider the rule of construction expressio unius est exclusio alterius, as advanced by PIAB, to be of assistance. Nor do I find the rule in pari materia to be of assistance. Both are valid rules but are not of assistance to the construction of this Act, which has established a unique body. Further, the Acts put before the Court by PIAB are not of any assistance in construing the provisions of the Act of 2003.
62. In the construction of statutes the primary rule is that they should be construed according to the intent expressed in the words of the Act itself. If the words of the statute are precise then they should be given their ordinary and precise meaning. If the meaning is not plain then inferences may be drawn. But a court may not legislate.
63. Thus the first consideration is whether the language of the Act of 2003 is clear. I am satisfied that it is, it did not exclude legal representation.
64. However, even proceeding (which is not necessary) and considering the Act for inferences, I would also hold that PIAB had failed to establish its case. In construing the Act, and its sections, there is no inference to be drawn that the Oireachtas intended to exclude lawyers acting for claimants at PIAB.
65. To take any further steps would be to speculate. Indeed, it would be to advance into the territory of the legislature. The Court is not entitled to go outside the words of the Act, while at the same time trying to give effect to the intention of the Oireachtas. It cannot add words to the Act or read words into the Act which are not there.
66. Further, in construing the Act of 2003 I assume that the Oireachtas did not intend to breach a constitutionally protected right. On this ground alone, and not including other grounds advanced and accepted in the High Court and here, I am satisfied that the Act of 2003 and s.54 in particular may not be construed so as to confer on PIAB the power to adopt a policy by which it refuses to correspond directly with the legal representative of a complainant. This is a direct interference with the applicant's right to legal representation and an indirect interference with the applicant's right of property in his personal injuries action. There is no foundation for such a policy in the Act of 2003.
67. The terms of the Act do not establish an administrative process of direct communication between PIAB and the claimants. For example, s.29, which was advanced as being a list of persons who may act on behalf of a claimant, does not relate to the issue of agency, but to who may act in place of a person who is unable, for reasons such as minority or incapacity, to bring a case in their own name.
68. I am satisfied that not only is PIAB's policy not expressly stated in the Act of 2003, but it is also not compellingly clear that it arises by necessary implication from the Act of 2003.
69. PIAB is a statutory body in charge of running its organisation. It is a statutory body established by the Oireachtas. Clearly the Act of 2003 established a body which initially is in lieu of
court proceedings, with a procedure which is intended to be claimant friendly and easy to access, and with the aspiration that claimants could process the claim themselves without the assistance of a legal representative. Thus while PIAB is required to accept the authorisation, and write to the applicant's solicitor, this does not exclude PIAB from informing the applicant also. This could be done by copying the correspondence issued to the legal representative to the claimant. There is nothing in the Act of 2003 which prohibits such a policy. This would advance the policy of PIAB as an
alternative forum, less formal than a court. It would also keep a claimant informed of the process. Such a practice, while it would recognise the applicant's choice of having a representative, would also advance the policy of PIAB. It has the benefit, for any claimant, and the applicant in this case, that it would keep him informed of the state of his claim.
At issue in this case is the policy of PIAB whereby it would write to a claimant and not his solicitor, although it would send a copy of the letter to his solicitor. PIAB asserted that it was empowered to adopt this policy by the Act of 2003. The only issue determined by the High Court, and on appeal to this Court, is whether PIAB is entitled by the Act of 2003 to make direct contact with a complainant or whether it is required to make contact with his solicitor, if a complainant, as was the position of the applicant, has appointed a solicitor to act on his behalf.
The right to legal representation is a fundamental right. The Act of 2003 does not expressly exclude lawyers from acting for claimants in PIAB. Nor, for the reasons given by the High Court and affirmed in this judgment, am I satisfied that a power to establish such a policy by PIAB may be inferred from the words of the Act of 2003. It may be that more people will process their claim in PIAB themselves as time goes by. But, lawyers not being excluded from PIAB by the statute, a claimant may choose to be legally represented. This choice may be taken for many reasons, such as a lack of time to attend to the claim, or a fear of dealing with institutions, or general illness while not rendering a person incapable affects their situation, or any other reason. The right to legal representation is a right which a claimant may exercise, in the knowledge that costs of legal representation will not be paid by PIAB. In such a situation PIAB should accept and act upon an authorisation such as was given in this case.
Even accepting that the process before PIAB is administrative, it may have serious consequences for a claimant. There may be consequences for refusing an assessment in PIAB and achieving a lesser amount subsequently in court. The process before PIAB is an alternative process, an alternative to a court process, however, it has significant consequences for a claimant.
If the Oireachtas intended PIAB to be a lawyer free zone it would have said so. The Oireachtas did not expressly exclude the right to legal representation. Nor are the words of the statute so clearly compelling that it may be inferred from the Act, under the rules of construction. Thus PIAB has no power to establish such a policy. Also, it is reasonable to assume that the Oireachtas did not intend to interfere, by inference or by implication, with the fundamental right to legal representation. A court would be slow to draw such an inference of such a breach of fundamental right. In this case I am satisfied that the statute did not intend to interfere with the right of legal representation.
Therefore, the policy of PIAB is an interference in the solicitor/client relationship, but it has no foundation in the Act of 2003. If the applicant wishes to have a legal representative, or considers that it would be in his interest to have a legal representative, then he is entitled to such representation.
However, PIAB is entitled under the Act of 2003, in the managing of its business, to keep a claimant informed of the process. PIAB is not a court. It is an alternative resolution process. It does not have the formality and rules of a court. Thus PIAB would be entitled to inform a claimant by, for example, sending to him a copy of any letter sent to his solicitor, at the same time as sending that letter. This keeps the claimant informed, is consistent with PIAB's policy, and within its functions under the Act of 2003.
Consequently, I would dismiss the appeal.
(2) The Board shall have all such powers as are necessary or expedient for, or incidental to, the performance of its functions under this Act.
(3) The Board may perform any of its functions through or by any member of the staff of the Board duly authorised in that behalf by the Board."