The Supreme Court is expected to give judgment within weeks on a landmark appeal concerning the constitutionality of guidelines slashing awards for mainly minor personal injuries.
The seven-judge court reserved judgment on Bridget Delaney’s appeal almost a year ago but, in an unexpected development, asked the parties last week for written submissions on a specific legal issue. The issue relates to the impact, if any, of legislation enacted by the Oireachtas following approval of the guidelines by a majority of the judiciary in March 2021.
The relevant legislation – the Family Leave and Miscellaneous Provisions Act 2021 – provided for amendments to the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act 2003 to make further provision in relation to the operation of the guidelines.
Having heard follow-up oral submissions on Wednesday, Mr Justice Peter Charleton said the court had important issues to consider.
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Ms Delaney’s appeal raises significant issues concerning the separation of powers between the judiciary and Oireachtas. It involves important questions relating to interpretation and construction of delegated legislation and the implications for judicial independence by any involvement of judges in processes that might be categorised as legislative.
In her personal injuries action against Waterford City and County Council, Ms Delaney claimed that due to the council’s negligence, she fractured her ankle bone after she tripped and fell on a public footpath in Dungarvan on April 12th, 2019. She said she required medical treatment and physiotherapy and was given a walker boot for several weeks.
She submitted an application to the Personal Injuries Assessment Board (PIAB) in June 2019 and it used the guidelines, prepared by the Personal Injuries Guidelines Committee (Pigc) of the Judicial Council, to assess her claim in May 2021 at €3,000.
In High Court proceedings, Ms Delaney argued her claim should have been assessed under the guidelines’ predecessor, the book of quantum, at €18,000-€34,000.
She claimed the PIAB acted outside its powers and breached her rights in assessing her claim under the guidelines and the Judicial Council acted outside of its powers in adopting the guidelines.
Her Supreme Court appeal over the High Court’s rejection of her case was heard in March 2023 by a seven-judge court, comprising four Supreme Court judges – Mr Justice Charleton, Mr Justice Gerard Hogan, Mr Justice Brian Murray and Mr Justice Maurice Collins – and three Court of Appeal judges, Ms Justice Máire Whelan, Ms Justice Mary Faherty and Mr Justice Robert Haughton.
In submissions to the court on Wednesday, Feichín McDonagh SC, for Ms Delaney, argued it should not address issues which his side maintained were neither pleaded nor argued by the other side during the hearing of the case.
Without prejudice to that submission, counsel said the making of the guidelines introduced a “brave new world” involving guidelines being drafted and approved by a majority of the judiciary after a democratic vote.
The suggestion now was that procedure was “set at naught” and, as a result of “technical amendments” later approved by the Oireachtas for a sequential application of the guidelines to ensure no unfairness, the guidelines were given a new status as primary legislation, he said.
The court should reject that “absurd” suggestion, he urged.
Eoin McCullough SC, for the respondents, said the effect of the 2021 Act had arisen in “very general” terms in the statement of opposition and disagreed it could not be addressed by the court. The “simple fact” is the 2021 guidelines were in place when the matter came back before the Oireachtas, he said.
The 2021 Act gave the guidelines a “different status” but it did not make them into a “law” as that word was interpreted by the courts, he said.
The legislation meant the guidelines were recognised by the Oireachtas as something the courts and PIAB should have regard to but it did not alter the entitlement of judges not to abide by them or their proper interpretation when it came to applying them, he said.
Without the amendments, he could not say the Oireachtas required the courts and PIAB to have regard to them, counsel added.
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