Do you need legal advice when applying to the Personal Injuries Compensation Board? The courts say you are entitled to legal advice. PIAB v's Declan O'Brien
In the High Court decision of Declan O'Brien -V- PIAB Ireland and the Attorney General, an application was brought on behalf of the Plaintiff Mr. O'Brien, a victim of an accident in the course of his employment, demanding PIAB to deal with his Solicitor in relation to the prosecution of the Mr. O'Brien's claim for personal injury.
Legal argument was adduced on behalf of the Plaintiff and the Notice Party (the Law Society) in support of the case noting the following matters:
1. the recognised right of access to assistance from professional lawyers;
2. the need for a similar right of access on behalf of claimants to professional advice to match the professional advice available to Defendants through their Insurers and legal advisers.
Dermot Glesson S.C. on behalf of the Law Society noted the significant inequality of arms between claimants and Defendants represented by Insurers.
Particularly, it was argued during the course of the judgement:
“In the event of a collision between two educationally disadvantaged and elderly gentlemen of no great educational attainments or administrative ability why should it be that the Board should prescribe that correspondence with the claimant must be dealt by himself personally and that by the respondent they will be dealt with on foot of a policy of subrogation by an Insurance Company with highly experienced claims personnel. To deny one side the use of a professional agent and to invite the other to employ such a person is an unconstitutional practice”.
In his judgement Mr. Justice MacMenamin held that the claimants lawyer could not be excluded from dealing with the Board on the claimants behalf as there was no such provision contained in the Act to that effect. In reaching his conclusion he considered the following matters significant:
a) the right of constitutional access to the Court by claimants;
b) the Board had acted outside its statutory powers;
c) the specific recognition within the PIAB Act, 2004 of the right of legal advice;
d) the gravity of the consequences of the procedures and the significance for the claimant; this was already recognised in the Act with reference to vulnerable Plaintiffs such as infants and persons under a disability.
Judge MacMenamin further noted as follows:
“compensation for personal injuries may involve substantial sums of money, and the question of entitlement thereto may be of vital significance to a claimant and his/her family.”
He recognised the necessity of obtaining legal advice as:
“such steps and such decisions may have serious consequences for a claimant. The right to legal representation and the lawyer/client relationship exist in a common good. Most significantly they help to guarantee equality of arms in litigation and various types of adversarial process and the maintenance of fairness between the strong and the weak.”