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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Power -v- The Personal Injuries Assessment Board [2014] IEHC 480 (24 October 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H480.html Cite as: [2014] IEHC 480 |
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Judgment Title: Power -v- The Personal Injuries Assessment Board Neutral Citation: [2014] IEHC 480 High Court Record Number: 2010 1082 JR Date of Delivery: 24/10/2014 Court: High Court Composition of Court: Judgment by: O'Malley Iseult J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 480 THE HIGH COURT JUDICIAL REVIEW Record No. 2010/ 1082 JR Between: HELEN POWER Applicant And
THE PERSONAL INJURIES ASSESSMENT BOARD Respondent Judgment of Ms. Justice Iseult O'Malley delivered the 24th October, 2014 Introduction 2. The applicant in this case was involved in a serious road traffic case in November, 2006. Her husband, tragically, was killed in the accident while the applicant herself sustained serious injuries. An assessment of damages made by the respondent board was rejected by the applicant in July, 2009. In April, 2010 her solicitor enquired why she had not received the necessary authorisation from the respondent, permitting her to proceed with a personal injuries action against the other parties to the accident. An authorisation had been received in the previous December in respect of her action as representative of her late husband. 3. The respondent replied that it had delivered an authorisation on the 21st July, 2009. It has adduced evidence in relation to its use of the DX "tracked mail" service. The applicant says that the authorisation was not received by either herself or her solicitors. She further says that it was not delivered within the meaning of the Personal Injuries Assessment Board Act, 2003 ("the Act"), in that DX tracked mail is not one of the methods provided for by the statute. 4. The applicant seeks a declaration that the respondent failed to issue an authorisation in accordance with s. 79 of the Act. She also seeks an order of mandamus directing the respondent to issue an authorisation in the manner prescribed in sections 32 and 79 of the Act. It is argued that the failure of the respondent to comply with the provisions of the Act has deprived her of her right to bring court proceedings in respect of her claim. 5. The respondent argues that it complied with the requirements of the Act in relation to service. Without prejudice to that, it has pleaded in the statement of opposition that relief should be refused because of alleged non-compliance with the requirement set out in Order 84 to act promptly and in any event within three months and as a proper exercise of the court's discretion. It has also brought a motion seeking to dismiss the applicant's claim for mootness, which was heard as part of the substantive case. Factual Background 7. The applicant applied to the respondent for assessment of damages under section 11 of the Personal Injuries Assessment Board Act, 2003 on the 2nd July 2008. There was, therefore, some four and a half months remaining of the two year period. The application was sent by registered post by her solicitors Derivan Sexton & Company ("the solicitors"). No particular address was stipulated as being the address for service of documents. The solicitor's headed note-paper gave both the address of the firm's office in Carrick-onSuir and a DX number. 8. By letter dated the 11th July 2008, the respondent acknowledged that the application was received on the 7th July 2008 and was complete. The persons who were respondents within the meaning of the Act (i.e. the potential defendants in the personal injuries claim) did not reply to correspondence from the Board and were subsequently deemed by the Board to have consented to an assessment under the terms of the Act. 9. The respondent proceeded to make an assessment of damages which was rejected by the applicant on the 13th July 2009. The reason for rejection was that the applicant's injuries had not yet settled. 10. An authorisation dated the 1st December 2009 was received at the offices of the solicitors for the separate but related action arising from the death of the applicant's husband in the accident. 11. On the 9th April 2010, the applicant's solicitors wrote to the respondent enquiring about an authorisation for her action, noting that they had received the authorisation of the 1st December, 2009 but that they had not heard from the respondent in relation to the applicant's own claim. 12. The respondent replied by way of letter dated the 14th April, 2010. This letter enclosed a copy (prominently marked "copy") of an authorisation dated the 16th July, 2009 which, according to the respondent, was originally delivered by Document Exchange ("DX") Tracked Mail on the 21st July 2009. The writer requested that if the original was located
14. The applicant's solicitor responded to this letter on the 4th June 2010 by stating that that the firm had carried out a "detailed search" and that neither the letter not the enclosed authorisation had been received by either the applicant or the firm. The letter continued as follows:
Accordingly, we hereby give you notice that unless we receive a fresh Authorisation from you in relation to this matter to allow our client to proceed with her claim we will have to {sic] option but to bring Judicial Review Proceedings against the Personal Injuries Assessment Board in this regard." 16. The respondent wrote to the applicant's solicitor on the 21st June, 2010. It was reiterated that the authorisation had been issued on the 16th July of the previous year. Reference was made to the solicitor's headed note-paper. The writer stated that the authorisation had been issued to the DX address,
Kindly note that since the inception of the Personal Injuries Assessment Board the Firm has observed that notices, including Section 50 Receipts, have been served by the Personal Injuries Assessment Board in a variety of manners on the Firm, including: 1. Registered post 2. Ordinary post 3. Tracked DX 4. Ordinary DX In this regard in November 2005 the Firm decided to operate an additional record system of post being received by whichever manner, either DX or through the postal system, from the Personal Injuries Assessment Board and therefore in addition to the normal record of post being received by the Firm, we also operate a separate record of all Personal Injuries Assessment Board Notices, being Section 50 Receipts and Authorisations, which said additional system is solely operated by the Managing Partner, Mr. Patrick Derivan. " 19. It should perhaps be noted that, in part, the correspondence from the solicitors to the respondent was based on a misconception relating to the applicant's file. It appears that the solicitor who originally dealt with the file, but who had left the firm by April2010, had prepared a document by which the applicant instructed the respondent to send all correspondence to the solicitors' firm. This document, it is accepted, was never actually sent but remained on the file. The solicitor who next took up the file wrote to the respondent on the basis that it had ignored this instruction. However, the mistake was pointed out by the respondent and when the application for leave was made, this error was pointed out. There is no suggestion that the court was in any way misled. 20. The solicitors made contact with the DX Network Service later in the month of July, 2010 seeking an explanation of the computer printout furnished by the respondent and inquiring as to the whereabouts of the document that, according to them, had not been received. 21. Leave to apply for judicial review was granted on the 30th July, 2010. 22. The substantive reply from the DX Network was sent by letter dated the 19th August, 2010. It appears that searches had been carried out in its exchanges, drivers' vans and incoming and outgoing mail but the item was not located. It was noted that
The solicitors' evidence 26. Ms Maura Derivan has deposed that on occasions in the past the tracked DX service has proved unreliable and/or insecure. She has given a number of examples of instances where tracked mail was not received, or was delivered to the DX box of a different firm, or when the door of the firm's DX box was found open. 27. The managing partner of the solicitor's firm, Mr Patrick A. Derivan, has deposed that, because documents from the respondent were received by varying modes of service including post, DX, tracked DX and registered post, the firm implemented a dedicated system of recording post from it. He says that since the 19th November 2008 he has personally recorded all s.50 receipts and all authorisations from the respondent before placing them on the appropriate file. He has exhibited a notebook in which these records are kept. He has no record of receipt of an authorisation for the applicant. It has also been averred that Mr Derivan opened all post to the firm. Evidence relating to the tracked DX system 29. With reference to the respondent's postal policy, Ms Moran says as follows:
31. Mr Kevin Galligan is the managing director of DX Network Services Ireland Limited. This company was issued with a Postal Service Authorisation by ComReg in 2004. In an affidavit sworn on behalf of the respondent, Mr Galligan has described the service known as DX Tracked Mail. To use this service, the customer buys packets of adhesive labels from the company, at a cost (at the relevant time) of €3.95 per label.
We have a dedicated sorter. The recipient's DX address is manually inputted into the hand-held infra-red scanner. We then scan a separate barcode which links the item with a particular route to its destination. Prior to departure, the driver is provided with a manifest for his/her route. This manifest lists all of the DX Tracked Mail items on his/her route for delivery. On arrival at the exchange where the DX box of the recipient is located, the driver removes the remaining 12 digit adhesive sticker and places it on the manifest. He/she then leaves the item of post in the DX box of the recipient unless the package is too large to fit into the DX box in which case it is left at the exchange where the DX box is located ... ...[the driver] will also sign the manifest (which already bears the pre-printed date) and write the time of the delivery of the item on the manifest to complete the document trail for this piece of tracked mail. Later on the day of the delivery, or early on the following day, the time of the delivery as recorded in writing by the driver on the manifest is entered into our computer system ..." 33. Mr Galligan compares his company's service with An Post's registered post service as follows:
35. Mr Galligan takes issue with Ms Derivan's assertion that the tracked DX is not a reliable or secure service and points out that the firm has continued to use it. He accepts, however, that
36. By notice of motion dated the 30th July, 2012 the respondent seeks an order dismissing the proceedings on the ground that they are moot. The motion is grounded upon the affidavit of Peter Bredin, solicitor in the firm acting for the respondent, who refers to a number of letters from that firm asking the applicant's solicitors whether they had issued proceedings in relation to the applicant's personal injuries claim. On the basis that no such proceedings had been issued, despite the undisputed fact that the solicitors had received a copy authorisation in April, 2010, the respondent says that the proceedings are moot. The Personal Injuries Assessment Board Act, 2003
(a) (Omitted) (b) in which the claimant or a respondent states in writing, in response to the notice under section 30, within the period specified in it, that he or she does not accept the assessment, it shall be the duty of the Board, as soon as may be after the expiry of that period, to issue to the claimant a document that contains the statement and operates to have the effect mentioned in subsection (3). (2) Such a document is also referred to in this Act as an "authorisation". (3) An authorisation under this section shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim ...
40. Section 79 of the Act sets out the position regarding the service of documents.
(a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address. (2) For the purposes of this section, a company shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be resident at its principal office or place of business. 41. The Respondent argues that, assuming that the letter was never received, these proceedings are nonetheless moot as the applicant failed to commence proceedings seeking compensation for personal injuries following receipt of an authorisation from the Board. When the copy was sent on the 19th April, 2010 there were still 45 days to run before the statutory limitation period expired (which is calculated as being on the 2nd June, 2010). There was no evidence on behalf of the applicant that there would have been any difficulties in filing proceedings on foot of the copy, or that the proposed defendants would have raised any issue relating thereto, and nothing in the Act to suggest that the copy would not suffice. 42. It is submitted that the applicant could have issued the proceedings and waited for the defendants to plead the Statute. 43. In these circumstances Mr Barniville submits that the matter may be considered moot, although it is said not to be a case of "classic" mootness, because the proceedings could have been issued within the relevant time. It is accepted that the proceedings are not moot from the applicant's point of view. 44. On behalf of the applicant, Mr Collins SC says that she was never furnished with an original authorisation. It is argued that were she required to accept the copy authorisation which was sent on the 14th July, 2010 she would only have had approximately six weeks within which to issue proceedings before her claim would be barred under the Statute of Limitations. This would have denied her the statutory entitlement under s. 50 of the Act to have six months from the date of issue of the authorisation (plus any remaining part of the two year period) within which to bring proceedings. 45. More fundamentally, the case is made that the respondent is under a statutory duty to issue the document in question in a particular way. If that was not validly done, then there was no authorisation in being, time could not run against the applicant and the question of the copy is simply irrelevant. Conclusions on mootness issue 47. It may well be that the parties could have found a solution to the situation without resort to litigation. The court has no evidence, and will not speculate, as to what the likelihood is that a document marked "copy" would be accepted as the necessary prerequisite for issuing a personal injuries summons. It is certainly the case that the legal system is not wholly unused to the concept of a lost document, and that there is usually a way to deal it. This might usefully have been explored by the applicant's solicitors. 48. By the same token, it is not clear to me why, in this case, the respondent refused to do what it appears to have done in the past and issue a fresh authorisation. This issue is simply not dealt with in either the correspondence or on affidavit. The explanation offered by Mr Barniville is that in other cases the Board was not certain that the documents had been delivered. If it is certain in this case, then it is more confident than the DX Network expressed itself to be in its correspondence and affidavit evidence. 49. Mr Barniville has added to that the proposition that the respondent cannot issue a fresh authorisation because that would prejudice the defendants, who had an arguable defence on the Statute. However, again, there is no evidence arising from the correspondence or affidavits that this was something taken into consideration by the respondent when refusing the request. 50. In any event, it seems to me that Mr Barniville's argument on this aspect depends on a finding that that the authorisation was validly issued and delivered in the first place - which is precisely what the applicant does not accept. 51. In these circumstances, where both parties have opted to stand firmly by their own interpretation of the legislation, and where there are definite legal consequences arising, it seems to me that the court should determine the issue as presented. Submissions on the substantive issue 53. Although it is accepted that s. 79 uses the word "may" in relation to methods of delivery, Mr Collins argues that the use of the words: "one of the following ways" further on in the section restricts the choice of methods of delivery to the three options contained in subsections (a), (b) and (c). He argues that this is one of the situations of statutory interpretation in which a court should interpret the word "may" as meaning "shall". In this regard reliance is placed on the following passage from Statutory Interpretation in Ireland (Dodd, 1st ed.):
55. Mr Collins submits that, had the legislature intended that such a document ought to be capable of being validly served by DX under the Act, then it would have specified such a method in the wording of the section. He says that this is a case of expressio unius exclusio alterius. 56. Reference is made to to S.I. 15/2012 which amended O.121, r. 2 of the Rules of the Superior Courts to permit the service by DX of a document for which personal service is not required to be effected, if the solicitor concerned has confirmed in writing that such service will be accepted. This amendment post dates the events in this case, having come into operation on the 1st February 2012. The argument here is that service of a document through the DX was not a legitimate method of delivery prior to that date. 57. It is accepted that the applicant's solicitors have a DX address on their headed paper. However, it is denied that this is an address for the service of documents and the submission is made that such an address would have to have been furnished by the applicant herself. 58. It is argued that the applicant had a legitimate expectation that a new authorisation would issue, as had previously happened, and that the applicant acted promptly in such circumstances. Respondent's submissions 60. In an alternative argument, described as being less strong but nonetheless compelling, it is contended that service by tracked DX does entail sending by post in a prepaid registered letter in accordance with section 79 (1) (c). This is on the basis that the service is prepaid, and is registered in the sense that there is a record by the consignor and a record of delivery in the form of the sticker on the manifest. 61. As a further alternative, admitted to be "very much a fall-back", it is submitted that the use of the word "may" in s. 79 of the Act does not restrict the methods of service to those mentioned in the subsections. The argument here is that the section does not provide that the Board "shall" serve the document using one those methods. Had it been the intention of the legislature to restrict the methods of delivery, then the word "shall" would have been used instead of "may". Mr Barniville submits that this construction of the section is strongly reinforced by considering the use of the word "shall" in other parts of the same section, and indeed in other sections of the Act. He rejects the submission of the applicants that "may" should in this context be interpreted as "shall". In this regard, he refers to the case of D.P.P (Ivers) v. Murphy [1999] 1 IR 98 where the court emphasised that "no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State". He also refers to the following passage of the court in McGrath v. McDermott [1988] I.R 258 where Finlay C.J states at p. 276 that
The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the courts appear desirable. " 63. In response to these latter points the applicant says that, having regard to the serious consequences for the applicant, if the court considers that her argument is correct then relief should issue ex debito justitiae. There was no culpable delay in circumstances where the parties were in correspondence and the applicant was looking for a fresh authorisation such as had previously been obtained by the solicitors. It is pointed out that there is no reference to third party rights in the statement of opposition (Mr Barniville says that it does not require to be pleaded). Discussion and Conclusions 65. The next issue is whether the applicant should be debarred from seeking relief by reason of delay before making the application for leave. 66. I do not believe that it would be rational to hold that the correct date from which the three months provided for in 0.84 ran from the 16th July, 2009 in circumstances where a) the applicant was unaware of the authorisation granted on that date and b) if she had been aware, it would mean that the problem now being dealt with by the court would not have arisen. 67. To take the 14th April, 2010 as the date on which the grounds for the application arose would be to encourage hugely premature applications - this was simply the date on which the solicitors became aware that there was a problem. They sought to deal with it in the correspondence and, not unnaturally, thought that it could be solved in the same way as a similar problem had been in the past, by the issue of a fresh authorisation. The respondent never gave any reason as to why this might not be an appropriate response. 68. In the circumstances the argument in relation to delay is not made out. Similarly, the argument made at the hearing in relation to third party rights is not based on anything more than speculation. 69. The real issue in the case is whether the issuance of an authorisation by DX tracked mail complies with the requirements of s. 79 of the Act. In my view it does not. 70. Having regard to the authorities on statutory interpretation referred to above, I am of the opinion that the purpose of the section is to ensure that a person who is entitled to an authorisation to issue court proceedings for personal injuries receives it. Given that a limitation period begins to run on the date of issue of the authorisation, and given the potentially serious consequences of failure to meet the deadline thereby imposed, certainty as to the receipt is of considerable importance. The constitutional right of access to the courts is in issue. 71. I also consider that it is necessary to read the section as a whole. It gives a number of different options, all of which, read in context, provide straightforward means of proof of delivery. 72. Service on the person (sub-paragraph (a)) can, obviously, be proved by the person who handed it to him or her. 73. Sub-paragraph (b) permits a document to be left at "the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address", while sub-paragraph (c) relates to the use of prepaid registered post "to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address". The meaning of the word "address" should in my view be considered with regard to subsection (2), which relates to companies, other corporate bodies and every unincorporated body. A company is deemed to be ordinarily resident at its registered office, while the other corporate and unincoporated bodies are deemed to be ordinarily resident at their principal office or place of business. 74. Reading the section as a whole, I consider that, apart from personal service, it envisages delivery, either by hand or by registered post, to a physical premises where people reside or work. The DX system, while using the term "DX address" in a colloquial way, is in fact based on the use of a dedicated collection box, the location of which is entirely fortuitous, and which is no more an address than a P.O. Box. 75. For the similar reasons, I cannot find that the DX tracked mail service qualifies as "registered post" within the meaning of the Act. I find support for this in the affidavit of Mr Galligan, in his comparison of the two services - the registered post offered by An Post delivers to the door of the addressee, where some person must sign for receipt, while the DX delivers to the DX box and delivery is recorded by the consignor only. I also note the definition of "registered item" in the European Communities (Postal Services) Regulations, 2002 (S.I. 616/2002) as amended, which refers to
77. I also note that since the commencement of these proceedings, the respondent has adopted a policy of issuing assessment notices by registered post, which term is not here intended to include tracked DX, because of the importance attached to the time limits for acceptance or rejection. I cannot see a material difference between these and authorisation notices, in terms of potential consequences. 78. I consider the provisions of the amended Rules of the Superior Courts, referred to above, to be of some guidance insofar as they permit the use of DX for service only where the solicitor has expressly confirmed in writing that such service is acceptable. The Rules do not, of course, govern this case. |
