The Supreme Court has confirmed that a personal injuries claimant may instruct a solicitor to deal directly with the Personal Injuries Assessment Board, rejecting the Board’s policy of insisting on communicating directly with the claimant.
The case arose from a workplace accident in November 2001 in which Declan O’Brien, then working as a meat boner, was struck on the back when an overhead line carrying meat carcasses collapsed.
O’Brien consulted a solicitor in mid-2004, when the three-year limitation period for bringing his claim was approaching. His solicitor submitted the claim documentation and an authorisation directing the Board to deal with him on O’Brien’s behalf, while confirming that no legal costs would be claimed.
The Board nevertheless communicated directly with O’Brien and told his solicitor that it would not deal directly with solicitors, although copies of correspondence would be provided. Judicial review proceedings followed.
The High Court ruled that the Board’s refusal to recognise the authorisation breached section 7 of the Personal Injuries Assessment Board Act 2003. The Board appealed.
Ms Justice Macken, delivering the Supreme Court judgment, held that the legislation did not expressly prohibit legal representation and contained no necessary implication that claimants were limited to obtaining legal advice only.
The court rejected the Board’s argument that its process was merely administrative and therefore materially different from court proceedings. The statutory scheme was mandatory for claimants, dealt with legally significant personal injury claims, applied established damages principles and could result in enforceable awards.
The judgment also highlighted the practical imbalance created by the Board’s policy: respondents and insurers could deal with the Board through claims professionals or lawyers, while claimants were denied equivalent direct representation.
The Supreme Court dismissed the appeal and affirmed the High Court orders. The ruling did not require claimants to use solicitors or establish a general entitlement to recover legal costs; it confirmed that those who choose legal representation cannot be excluded from using it in their dealings with the Board.