The High Court has rejected a challenge to a law that prevents claimants from recovering most legal fees incurred during a Personal Injuries Assessment Board (PIAB) application when costs are later taxed in court proceedings.
The plaintiff argued that section 51B of the Personal Injuries Assessment Board Act 2003 breached constitutional rights of access to the courts, effective legal assistance and the proper administration of justice. She also claimed it was incompatible with the European Convention on Human Rights. Ms Justice Pilkington refused the declarations sought, concluding that the section did not operate as a bar to court access. She said the claim for damages therefore did not arise. The court had yet to hear the parties on consequential orders, including costs.
The challenge arose from a road traffic accident in November 2007. The insurer accepted full liability, and PIAB assessed the claim at €19,160, with a further €350 allowed for fees and expenses. The plaintiff rejected the assessment and received authorisation to bring proceedings. Her personal injury claim later settled after a €40,701 tender offer was accepted; it did not go to trial.
The plaintiff said €2,627.30 in fees and expenses connected with the PIAB application could not be recovered in the subsequent taxation of costs. The judgment records that the €50 application fee and €300 for a medical report were allowed by PIAB under section 44. It also notes that the court had no evidence that the plaintiff had actually paid the solicitors’ pro-forma fee note for the PIAB work.
Section 51B bars recovery on taxation of fees or expenses connected with a claimant’s PIAB application, apart from specified expenses under sections 35, 44 and 45. The judge said the section’s terms were clear and that it did not provide for recovery of the legal fees at issue. She also accepted that claimants are entitled to seek legal advice during the PIAB process, but said they could not be under the misapprehension that those additional legal costs would be paid by PIAB or recovered on later taxation.
The plaintiff relied on decisions concerning access to justice and the risk that fees could prevent people from bringing claims. The judge distinguished those cases, noting that this case did not involve a fee payable to the State to access the courts. She was not satisfied that the plaintiff, or claimants generally, had been deterred from using PIAB because they might have to pay legal fees. She also said she knew of no evidence that the number of claimants had fallen after section 51B was enacted.