PIAB COSTS RECOVERABLE BY PLAINTIFF PRE 2007 ACT
In the case of Gleeson V Rudden application was made as part of the taxation of the Plaintiffs cost to seek recovery of Solicitors fees in relation to work associated with lodgement of Application before the Personal Injuries Board Tribunal established pursuant to the provisions of the Personal Injuries Assessment Board Act 2003 [PIAB 2003] The case involved a Road Traffic Accident which proceeded by way of assessment in the Circuit Court. A Notice of Tender had been made by the Defendant in the sum of €8,970.00 which corresponded with the sum awarded by PIAB. Ultimately an award was made by the Court in the sum of €11,128.00 which was in excess of the tender sum.
The Defendants then made a submission to the Court pursuant to the Provisions of Section 17 (5) (b) of the Civil Liability and Courts Act 2004 [The 2004 Act] in relation to the content of the Notice of Terms of Settlement made by the Plaintiff and the reasonableness of the conduct of the Plaintiff in respect of his formal offer. The Plaintiff had served a Notice of Terms of Formal Offer seeking General Damages in the sum of € 17,400.00 which was within the range set out in the Book of Quantum as promulgated by PIAB.
It should be further noted that Section 22 of the 2004 Act requires a Court when assessing general damages to have regard to the Book of Quantum. It was the Plaintiffs contention that when lodging a Notice of Terms of Settlement that it was open to him to put his "best foot forward" and to seek damages within the range of the Book of Quantum.
Having heard counter submissions from James O'Donnell BL for the Plaintiff`s the President dismissed the Defendants application under Section 17 (5) (b) and awarded full costs to the Plaintiffs to be taxed in default of agreement.
Both Plaintiff and Defendants Solicitors subsequently instructed Legal Cost Accountants and a preliminary issue arose on the taxation to be determined by the County Registrar as to whether the costs incurred in engaging with the Personal Injuries Assessment Board (the Board) pursuant to the Provisions of PIAB 2003 were recoverable.
Submissions were made by both Cost Accountants and a preliminary ruling was made by the County Registrar on the 17th of July 2007. It should be noted that in the meantime Personal Injuries Assessment Board (Amendment) Act 2007 ( PIAB 2007) had been enacted which specifically provides that no amount should be allowed in respect of any fees or expenses incurred by the claimant in connection with an application before PIAB.
The County Registrar considered authorities that were opened and held inter alia as follows:
* Mr. Justice McMenamin in O`Brien V PIAB 25th January 2005 noted it was accepted by all parties that the cost of an application to PIAB were not recoverable as part of the PIAB Assessment. There was however no decision on whether costs would be recoverable in the event of Proceedings being issued following the rejection of an Assessment.
* The PIAB Application was distinguishable from an Appeal from the Employment Appeals Tribunal as the engagement with EAT was not a mandatory process and the Courts discretion was appellate only.
Having considered the various submissions the County Registrar held that the Plaintiff was entitled to recover the Solicitors costs reasonably and necessarily incurred in bringing the Application before PIAB.
The decision of the County Registrar was then appealed by the Defendant and came before Ms. Justice Linnane in the Circuit Court on the 3rd of December 2007. Reliance was placed by the Plaintiff on a decision of Mr. Justice Bermingham of the High Court in Boyle V McKeever, North Western Circuit 22/10/2007 which was an appeal from the Circiut Court. In the Circuit Court Judge O'Hagan had ruled that the solicitor client legal fees were not items of special damage but rather items to be taxed on a party and party basis in the normal course. This decision was upheld by Judge Bermingham who further went on to say that the purpose of the 2007 Act was to plug a hole that existed and he concluded that the 2007 Act was not retrospective.
Counsel for the Defendant in the Gleeson case also very fairly handed in a note of the Judgement delivered by Mr. Justice McCarthy in the High Court of the 19th of November 2007 in the case of Elizabeth O`Sullivan V James Casey on Appeal from the Circuit Court Record No. 429/2007 wherein Mr. Justice McCarthy held the correct interpretation of the Law under the PIAB 2003 Act was that costs incurred by the Plaintiff prior to commencement of Proceedings were recoverable as an item of costs as between the parties to the action but not as item of special damages. He therefore held that the cost incurred by the Plaintiff in that case prior to the institution of proceedings i.e., Solicitors PIAB costs were part of the cause of the action and capable of being recovered by the Plaintiff.
CONCLUSION
It is now clear that Plaintiffs are entitled to recover Solicitors fees in relation to the work associated with the PIAB Application in all cases prior to the introduction of PIAB 2007. Section 51 (b) Subsection (2) of PIAB 2007 however provides that in Proceedings initiated subsequent to the implementation date of PIAB 2007 a claimants costs associated with complying with the Statutory requirements under PIAB are specifically disallowed .
This prohibition in relation to recovery of costs contained in PIAB 2007 appears to mean that these fees are now chargeable to a claimant on a solicitor and client basis. However arising out of a recent Judicial Review in Hinc v PIAB which was settled PIAB reversed it's former policy and will now allow fees which are reasonably and necessarily incurred within the meaning of Section 44 of PIAB 2003 to vulnerable claimants. The question now arises whether these additional costs which are allowable by PIAB are recoverable as special damages or whether the prohibition contained in PIAB 2007 applies and no doubt others will apply to Court for clarification on this complex area in due course .
Shane Carty is a Partner in Kent Carty Solicitors specialising in Personal Injury Law.