The Minister for Business, Enterprise and Innovation, Heather Humphreys announced the publication of the Personal Injuries Assessment Board (Amendment) (No. 2) Bill 2018 in August 2018. The overall purpose of the Bill is to strengthen the Personal Injuries Assessment Board (PIAB) in order to ensure greater compliance with the PIAB process and encourage more claims to be settled through the PIAB model.
Those working with the insurance industry will no doubt be familiar with the practice which has developed whereby Claimants are encouraged by their advisors not to co-operate with the PIAB process. This non-cooperation typically takes the form of the Claimant failing to provide a schedule of Special Damages when asked, and/or failing to attend medical examinations set up by PIAB's assessor. In doing so, the Claimant (or their solicitor) is seeking to have PIAB either release the claim before any assessment of the claim is made, or alternatively have the claim assessed for an amount lower that it's true value. Under the current rules, this then enables the Claimant's solicitor to issue legal proceedings without fear of being penalised by the trial judge for their failure to engage with PIAB. This strategy also lowers the risk that the Claimant will obtain an award of damages from the trial judge which is lower than the PIAB assessment, which under the current rules leaves the Claimant vulnerable to an adverse costs order at trial.
In an effort to deter non-compliance with the PIAB process, the Bill introduces a new provision that allows the judge to take into account the Claimant's failure to provide information to PIAB when sought (such as details of the claim for Special Damages) and also the Claimant's failure to attend a medical examination, when making an Order for costs. Judges will have discretion to not award the Claimant their costs, and/or order that the Claimant pay all or a portion of the Respondent's costs. The Bill also includes the possibility of an adverse cost order against a Respondent at trial who did not cooperate with the PIAB process.
On the assumption that these provisions will become law, these changes are to be welcomed. However, it should be borne in mind that the adverse cost implications in the Bill are discretionary. The implementation of this change is unlikely in itself to lead to an improvement in Claimant engagement with the PIAB process. This behavioral change will probably only come to pass if judges are prepared to make adverse cost orders in subsequent litigation based on either parties' failure to engage with the PIAB process. As with many legislative changes, and it could be several years following the implementation of this law before it is considered by the courts and its effectiveness to becomes evident.The Bill also includes a number of other provides, many of which stem from the recommendations of the Cost of Insurance Working Group Report on the Cost of Motor Insurance, which was published in January 2017. These include allowing PIAB to charge different (presumably lower) fees to Claimants and Respondents who submit documentation electronically, and also introduces a legislative requirement for PIAB's Book of Quantum to be updated at least every 3 years.