On 9 April 2024, the long awaited and landmark judgement on the case of Delaney v Personal Injuries Board & Ors was delivered by the Supreme Court. This case challenged the constitutionality of the Personal Injuries Guidelines and the outcome of the case had the potential to significantly affect the Guidelines which have been the most important piece of the Government’s Insurance Reform Agenda.

To provide a short background to the case, the proceedings began in April 2019 when Ms. Delaney (the Plaintiff) was injured by a fall on a footpath in Dungarvan, Co. Waterford. Ms. Delaney suffered an undisplaced fracture of her ankle. Ms. Delaney’s application to the Injuries Resolution Board (previously PIAB) was received on 4 June 2019 and it used the Personal Injuries Guidelines to assess her claim in May 2021 at €3,000. Under the Book of Quantum, Ms. Delaney would have likely received an award of damages in the region of €18,000 to €34,000.

In the High Court, Ms. Delaney challenged the constitutionality of the Guidelines, arguing that the adoption of these guidelines by the Judicial Council was in breach of the Constitution and the separation of powers. Ms. Delaney also challenged the way the Injuries Resolution Board applied the guidelines when assessing her award for general damages, and submitted that the assessment of her claim under the guidelines resulted in a lower award of damages and amounted to an unconstitutional interference with her personal rights to bodily integrity, property and equality.

The High Court rejected Ms. Delaney’s claim and she appealed. Due to the importance of the case, the Supreme Court agreed to hear a “leapfrog appeal”, meaning that the case could bypass the Court of Appeal.

The Supreme Court delivered five complex judgments and ruled that the Personal Injuries Guidelines have legal effect and are legally binding. The Supreme Court decision means that the guidelines, which came into operational in April 2021, are legally binding, but that any changes to them will require legislation. This case has been highly anticipated and the decision has been welcomed. The confirmation of the guidelines legally binding status will help to being much need certainty, predictability and consistency to the area of personal injuries claims.

Throughout the judgments the Judges emphasised an overall support of the guidelines and the important role that they play and Hogan J commented that the “reform of our personal injuries law has been a topic which has exercised considerable public concern and attention for at least a generation”. Hogan J went on to his that he completely supports the “idea of guidelines for both personal injuries and sentencing. Guidelines of this kind lead to legal certainty and predictability, lower costs and greater efficiencies.” Haughton J also stated that the guidelines represented “a wholesale and systematic change in the substantive assessment of damages for personal injury” and that “departure from a Guidelines figure will be difficult to justify”.

One of the key issues in the case was the powers given to the Judicial Council under the Judicial Council Act 2019 which included powers to adopt the guidelines. The majority of the Court ruled that section 7(2)(g), which provided for the adoption of the guidelines was unconstitutional in its present form. However, this issue was subsequently fixed by the introduction of the Family Leave and Miscellaneous Provisions Act 2021. Both Hogan J and Faherty J provided in their judgements, that the 2021 Act cured the unconstitutionality of section 7(2)(g) of the 2019 Act. The 2021 Act cured this by “providing for a separate and independent post-hoc confirmation of the guidelines by the Oireachtas which served to give them the force of law”.

The judgements also discussed the circumstances in which the guidelines may be departed from. The guidelines are not mandatory, they can only be departed from where is no reasonable proportion between the guidelines and the damages award that should be made.  The courts are required have regard to the guidelines and must give reasons for departing for them. Collins J stated that to have regard to the guidelines does not mean that the court must apply them in all cases. Nevertheless, it was emphasised that departure would be rare and as stated by Haughton J, it would be “difficult to justify”. Haughton J went on to say that “while exceptional circumstances if not the statutory test for departure, having regard to the comprehensive nature of the Guidelines, the use of recent Irish caselaw to inform their preparation, and the principle of proportionality that underpins them, in practice it will only be in exceptional circumstances that a court could justifiably depart from them”.

Justice Charleton provided a condensed summary of the Supreme Courts decision on the case:

1.     The majority of the Court considered that the guidelines have normative / legal effect and that the guidelines are legally binding.

2.     Three of the Judges defined the standards that the guidelines can be departed from: the guidelines should only be departed from where there is no reasonable proportion between the guidelines and the award which should otherwise be made.

3.     A majority of the Court concluded that section 7(2)(g) of the Judicial Council 2019 Act is unconstitutional, in its present form, as being contrary to the independence of the judiciary as guaranteed by Article 35.2 of the Constitution.

4.     The majority of the Court considered that the Guidelines were subsequently  independently ratified by the Oireachtas by virtue of the enactment of the Family Leave and Miscellaneous Provisions Act 2021 thus the Personal Injuries Guidelines passed by the Judicial Council are in force as a matter of law and were thereby given legal effect.

5.     The majority of the Court considered that the transitory provision of the 2021 Act was not unconstitutional and that there was no vested property or personal rights in the appellant to have her case adjudicated by the Injuries Resolution Board, or by a court, under any earlier guidelines than those passed by the Judicial Council on 6 March 2021.

The Orders made by the Court were:

• A declaration that section 7(2)(g) of the Judicial Council Act 2019 is unconstitutional in its current form.
• A declaration that the Guidelines adopted by the Judicial Council on 6 March 2021 were given force of law by virtue of section 30 of the Family Leave and Miscellaneous Provisions Act 2021 and are consequently in force.
• An declaration that the Personal Injuries Assessment Board acted properly and in accordance with law in applying the personal injuries guidelines to the appellant’s application to be assessed as to her pain and suffered in May 2021.
• An order that, save for the declaration of unconstitutionality in respect of section 7(2)(g) of the 2019 Act and the order for costs, the appeal from the order of the High Court is to be dismissed.