Mr Justice Robert Haughton would allow Bridget Delaney’s appeal to the extent of declaring invalid the provision requiring the Judicial Council to adopt personal injury guidelines. In a dissenting judgment delivered on 9 April 2024, he said section 7(2)(g) of the Judicial Council Act 2019 impermissibly encroached on judicial independence and the separation of powers.
The Supreme Court appeal concerned the constitutional validity of that provision and the personal injury guidelines adopted by the Judicial Council in March 2021. The judgment records that Delaney fell on a public footpath in Dungarvan, County Waterford, on 12 April 2019 and suffered an undisplaced fracture at the tip of her right ankle bone. She said a footpath defect for which the local authority was liable caused her fall. Liability was assumed for the purpose of PIAB’s assessment; the judgment does not determine the underlying claim against the local authority.
Delaney applied to the Personal Injuries Assessment Board (PIAB) on 29 May 2019. The assessment was delayed. PIAB assessed her claim in May 2021 under the new guidelines, placing the injury in a bracket of €500 to €3,000 and assessing it at €3,000. The judgment says the assessors considered whether to depart from the guidelines but found it was not necessary. Delaney did not accept the assessment and brought proceedings challenging the statutory scheme.
Haughton J considered the guidelines to be substantive norms with the effect of subsidiary legislation, rather than advisory guidance. He reasoned that judges and PIAB had to have regard to them and give reasons for departures, with rational, cogent and justifiable reasons required. He said the judiciary should not be compelled to perform this law-making role, which he considered could undermine public confidence in judicial independence.
He disagreed with the majority view, described in his judgment, that the 2021 Act had approved the guidelines and given them statutory effect. He considered the amendments insufficient to amount to ratification. However, addressing retrospectivity on the alternative assumption that the guidelines had been confirmed, he agreed with the majority that applying them to Delaney’s pending claim did not abrogate her constitutional rights.
This is Haughton J’s judgment, not a summary of the court’s overall disposition. His proposed order was a declaration that section 7(2)(g) was invalid under the Constitution, particularly Articles 6, 15.2, 34 and 35. The judgment does not state in this text the court’s final order or the majority’s complete reasoning.