O Brien V. Personal Injury Assessment Board

The case law report the author has been given is Declan o Brien v personal injuries assessment board in this review the author will attempt to set out the facts, legal arguments, ratio decidendi and obiter dicta of the case.
The facts of the case are the applicant in august 2004 asked his solicitor to begin proceedings against his employer due to a work-place injury. The applicant signed over authority to his solicitor so his solicitor could act on his behalf and deal with the matter. This did not go down well with his employer and his employer refused to abide by the authority signed by the applicant to deal directly with his solicitor. On the 25th of January 2005 judgement was given in favour of the applicant with an order for costs in his

favour. The employer then appealed this in April 2005. Court proceedings then began in January 2006 after “the applicant received an authorisation from the respondent pursuant to s.17 (6) of the Personal Injuries Assessment Board Act 2003 to institute court proceedings in respect of the claim for personal injuries.” (West law document). The applicant looked for the Supreme Court to guide him on whether the issues to be decided in the appeal were now not important because of the fact that the applicant was no longer required to deal with the respondent in terms of his personal injury claim. The applicant believed the appeal should not proceed and he so submitted this.
An appeal was moot when the decision would not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties and where the passage of time had caused the proceedings to lose their character as a present live controversy. Goold v Collins [2005] 1 I.L.R.M. 1 applied.
As a result of the High Court decision, the respondent, as a statutory body, had been affected in the manner in which it exercised its functions, not only vis à vis the applicant but with regard to other applicants. The respondent therefore had a real current interest in the issues on appeal including the substantial question of costs.
Article 34.4 of the Constitution provided for a right of appeal from the *305 decisions of the High Court. Where a party had a bona fide interest in appealing against a declaratory order of the High Court which was not confined to past events peculiar to the particular case, the court should be reluctant to deprive it of its constitutional right to appeal.
In seeking and obtaining the declaration in question, the applicant obtained a ruling determining how the respondent should exercise public statutory powers towards him which was binding not only as regards the circumstances of the particular case, but as regards any future event where he had a claim for personal injuries.

The case began as an appeal by the personal injuries assessment board to a ruling by the high court were the court ruled that the applicant when claiming to the personal injuries assessment board be represented by a solicitor in his dealings with the board.

The high court came to the conclusion that if the personal injuries assessment board wanted to deal directly with the applicant this was a breach of section 7 of the personal injuries board act 2003 and without authority.

Mrs Justice Denham said that “the Act was to allow the making of assessments in compensation for personal injuries without the need for legal proceedings. It created personal injuries assessment board as a different place for such assessments. The establishment of alternative methods of resolving issues has great merit, for example, in relation to family law issues”.
The announcement in the High Court order is based upon the conclusion of the learned High Court judge that the respondent acted unlawfully in the exercise of its statutory powers by refusing to deal with the applicant's duly appointed solicitor in connection with his claim for damages for personal injuries.The high court also ordered that the applicant must recover costs from the respondent in respect for the application for leave to bring judicial review, the costs of substantive hearing of three days and the cost of taking judgement must be

paid.
As a result of the proceedings initiated in the High Court by the applicant the respondent has been sanctioned or disadvantaged by a High Court finding that the practice which it seeks to follow is unlawful and by an order for what would be undeniably a substantial amount of costs.

Obviously the respondent has a wider interest than the applicant in so far as the conclusion and declaration of the High Court affects the manner in which it exercises its statutory functions, not only vis-à-vis the applicant but with regard to some thousands of other applications made to it. This situation has been arrived at by virtue of the fact that the High Court determined the obligations of the respondent to the applicant in the exercise of its statutory powers. It is acknowledged that none of these issues could be considered to have become moot prior to January 26, 2006, the date when the applicant was authorised to bring legal proceedings and no longer had to deal with the

respondent.
In this case is it quite clear that the respondent has a real current interest in the issues pending on appeal before this court for the purpose of a final determination of the controversy between the parties regarding the exercise of its statutory powers and of course the substantial question of costs. The applicant himself has insisted, that should the court for other reasons, such as the consideration of a point of law of public importance, allow the appeal to proceed that he be permitted to participate and argue on the merits of the appeal, albeit under special terms as to the costs of the appeal, in order to defend his position concerning the costs awarded to him in the High Court.

The following were the cases referred to in judgement:
Application of Zwann, In re [1981] I.R. 395; [1981] I.L.R.M. 333
Borowski v Canada [1989] 1 S.C.R. 342
City of Mesquite v Aladdin's Castle 455 U.S. 283
Clarke v Member in Charge of Terenure Station [2001] 4 I.R. 171; [2002] 2 I.L.R.M. 11
Goold v Collins [2005] 1 I.L.R.M. 1