Recusal application in lead challenge to personal injury guidelines dismissed
Posted on 17th February 2022 at 21:28
Counsel argued there could be a perception of bias if a judge who voted for rules heard case
The High Court has dismissed an application concerning a judge, who was not a member of the Judicial Council when it voted to approve new personal injury guidelines, hearing the lead challenge against them.
Mr Justice Charles Meenan was asked in a pretrial motion to determine whether a judge who took part in last year’s vote by the council to adopt the guidelines should recuse themselves from hearing a case brought on behalf of Bridget Delaney from Co Waterford challenging the rules.
Ms Justice Meenan said he was dismissing the application on grounds including that whatever opinions or reasons a judge had for voting for, or against, the guidelines, participating in that ballot did not operate to interfere with their duty to be fair and impartial in hearing and determining the case.
Ms Delaney’s action is one of several proceedings against the State, and the Personal Injuries Assessment Board (PIAB), a body that makes personal injury awards. It is aimed at setting aside guidelines regarding awards for personal injury claims.
Her action, deemed to be the lead or test challenge, centres around a vote taken in March of last year by the council, the body made up of all the State’s judges, to adopt the guidelines. Both PIAB and the State opposed the actions.
Perception of bias
Ms Delaney’s lawyers argued that there could be a perception of bias if a judge who voted for the guidelines was to hear the case. The State opposed the motion and the council and PIAB took a neutral stance.
Mr Justice Meenan said an independent judiciary as provided for in the Irish Constitution is essential for the basic freedoms we enjoy as a society.
This is often “brought forcefully home” when we “see the consequences for those who live in live or deal with authorities where the judiciary enjoys no such independence”, he said.
Having considered the relevant legislation, the judge said he had concluded that the adaptation of the guidelines was not a pronouncement of their legality, which was a function of the courts.
Whatever opinions a judge had when they voted either for or against the guidelines does not operate to interfere with their duty to be fair and impartial in hearing and determining Ms Delaenys case, he said. The vote on the guidelines, he added, did not interfere with a judge’s judicial functions.
The judge added that he was satisfied that application must be refused as judges, like everybody else, are obliged to follow the law.
He added that the Act establishing the council enjoys the presumption of constitutionality and every judge is by law a member of the council.
Tripped on footpath
In her judicial review proceedings against PIAB, the council, Ireland and the Attorney General, Ms Delaney seeks orders quashing the assessment PIAB made in respect of her claim and the council’s decision to adopt the guidelines.
Ms Delaney, of Cruachan, Knockateemore, Dungarvan, also seeks several declarations including that PIAB acted outside its powers, breached her rights to natural and constitutional justice, and that the council acted outside of its powers in adopting the personal injuries guidelines.
She claims she injured her ankle when she tripped and fell on a public footpath at Pinewood Estate, Dungarvan on April 12th, 2019. She alleges she suffered her injuries due to the negligence of Waterford City and Council.
She claims that the appropriate awards for the injury she sustained ranged from €18,000 to €34,000 but PIAB subsequently awarded her €3,000, which she rejects and says does not compensate her for her injuries.
She also claims that the adoption of the guidelines has violated her constitutional right to access to the courts. The claims are denied.
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