knowledge | 19 January 2023 |

Reform of Personal Injuries Procedures

The Personal Injuries Resolution Board Act 2022 was enacted on 13 December 2022 and awaits commencement. It reforms the PIAB process in a number of ways.

The Act renames the Personal Injuries Assessment Board (PIAB), as the Personal Injuries Resolution Board (“Board”) to reflect an expansion of its remit.

This expansion includes the ability of the Board to offer mediation as a means of resolving a personal injuries claim. It can also deal with claims of a wholly psychological nature and those where an injury is more long-term.

Mediation

The new mediation process is modelled on the Mediation Act 2017. Participation is voluntary and consent can be withdrawn at any time prior to the completion of that process. The mediator will be a Board staff member or an external appointment. The policy preference is for the former.

After the mediation, the mediator will prepare a report to the Board. Where parties reach an agreement in mediation, each will still have the option to withdraw from that agreement provided they inform the mediator and Board within ten days of the completion of the mediation. Where the mediation agreement stands, the Board will issue an order for payment of the monetary value agreed. If mediation is unsuccessful, the Board will refer the claim for assessment, although it may not arrange this where a respondent has notified it of its intention not to accept the assessment.

Subject to certain exceptions, all communications and documents relating to a mediation, including the mediator’s report, will be confidential and cannot be disclosed in a subsequent assessment or court proceedings. Conversely, evidence used in mediation that is otherwise admissible or subject to discovery in proceedings will not become inadmissible or protected by privilege in such proceedings solely because it was used in mediation.

Although a potential extra layer in the process before the Board, mediation is not intended to add to the length of that process with cases still needing to be resolved in the usual 9-month statutory timeframe.

Enhanced role of the Board

The Act also expands the Board’s role in dealing with certain types of claims. As referenced above, it will now consider claims where the injury consists wholly or in part of psychological damage. In addition, it can now retain claims where a long-term prognosis is unlikely to be available within the 9-month statutory timeframe. The Act provides a further two years for a long-term prognosis to become available. The Board may continue to deal with the matter after this period provided it has the consent of all parties.

Costs

In relation to costs, the Act now provides that where a claimant brings proceedings following an assessment accepted by the respondent and fails to recover an award higher than the assessment, the respondent will be deemed to have made an offer of tender on the acceptance date equal to the amount of the assessment. This has costs implications for a claimant. The court can override this provision in certain circumstances.

Fraud prevention

The new Act introduces new anti-fraud measures. The general prohibition on the disclosure of confidential information by the Board and others will not now prevent the disclosure of information to An Garda Síochána if that information, in the opinion of the Board, may relate to the commission of an offence. This is coupled with additional requirements on claimants in relation to proof of identity.

The Act also makes it an offence for a person to knowingly or recklessly provide false or misleading material information in relation to an application.

Other measures

Finally, the functions of the Board are expanded around the collection and publication of personal injuries data, research and promotion of its work with the public. 

Conclusion

The Act represents a further step in the reform of the personal injuries framework in Ireland and may not be the end of the reform. A review mechanism is included in the new legislation obliging the Minister to commence a review of the operation of the amendments within 18 months of the commencement of that particular section and then to report on that review within a further 12 months. It is also clear from the Oireachtas debates preceding enactment that additional reform may be forthcoming.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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