Central Bank (National Claims Information Database) Act 42 of 2018

An Act to confer a function on the Central Bank of Ireland with respect to the collection and study of data from insurance undertakings in relation to the carrying on of certain non-life insurance business in the State and, in particular, information on the income generated by, and costs associated with, the carrying on of such business; for those purposes to amend Schedule 2 to the Central Bank Act 1942 and section 22 of the Central Bank (Supervision and Enforcement) Act 2013 ; in relation to personal injuries actions, to amend, in certain respects, the Civil Liability and Courts Act 2004 ; and to provide for related matters.

[27th December , 2018]

Be it enacted by the Oireachtas as follows:

“Claim” - meaning of that expression

1. In this Act “claim” means an event or an alleged event that is—

(a) recorded in writing by an insurance undertaking as having been notified to it, and

(b) treated, for the time being, by the undertaking as giving rise to an actual or potential liability, on the part of the undertaking, under a policy to which it is party.

Claims to which Act applies

2. (1) This Act applies to a claim if, as respects the claim, the liability (actual or potential), as referred to in section 1 , of the insurance undertaking concerned is in respect of a risk falling within a relevant class of non-life insurance, where that risk is an Irish-based risk.

(2) A reference in this Act to a “relevant claim” shall be construed as a reference to a claim to which this Act applies.

“Relevant non-life insurance business” - meaning of that expression

3. In this Act “relevant non-life insurance business” means business comprising relevant classes of non-life insurance, the risks that fall within such classes being Irish-based risks.

Interpretation

4. (1) In this Act—

“Act of 1942” means the Central Bank Act 1942 ;

“Act of 1964” means the Insurance Act 1964 ;

“Bank” means the Central Bank of Ireland;

“business expenses” means the expenses incurred by an insurance undertaking in acquiring and providing relevant classes of non-life insurance business;

“claim” has the meaning assigned to it by section 1 ;

“class of non-life insurance”, means any class of insurance, other than class 2, referred to in Part 1 of Schedule 1 to the European Union (Insurance and Reinsurance) Regulations 2015 ( S.I. No. 485 of 2015 );

“direct negotiation” includes negotiation involving, in whole or in part, the services of a solicitor or counsel;

“insurance undertaking” has the meaning assigned to it by section 15 of the Finance (Miscellaneous Provisions) Act 2015 ;

“Irish-based risk” means a risk, falling within a relevant class of non-life insurance, that, by virtue of regulations under section 7 (1), is regarded, for the purposes of this Act, as a risk based in the State;

“large relevant claim” means a relevant claim, the estimated or realised settlement or award value of which is not less than €150,000;

“MIBI Agreement” means the Agreement on the Compensation of Uninsured Road Accident Victims dated 29 January 2009 between the Minister for Transport and the Motor Insurers’ Bureau of Ireland and includes any subsequent agreement which amends or replaces that Agreement;

“MIBI payments” means payments made, in respect of a particular year, by an insurance undertaking, pursuant to the MIBI Agreement, to the Motor Insurers’ Bureau of Ireland, including any payments made, in respect of that year, by the undertaking to the latter body in respect of changes in the reserves of the latter during that year;

“Minister” means the Minister for Finance;

“policy” has the meaning assigned to it by section 1 of the Act of 1964;

“relevant claim” shall be construed in accordance with section 2 (2);

“relevant class of non-life insurance” means any class of non-life insurance that, by virtue of regulations under section 6 (3), is specified to be a relevant class of non-life insurance for the purposes of this Act;

“relevant non-life insurance business” has the meaning assigned to it by section 3 ;

“settlement channel” shall be construed in accordance with subsection (2).

(2) A reference in this Act to a settlement channel shall be construed as a reference to the means by which a relevant claim is either—

(a) finally resolved - as referred to in subsection (4)(a), or

(b) finally disposed of in the insurance undertaking’s favour - as referred to in subsection (4)(b),

being any means that—

(i) involves a step or proceedings referred to in any of paragraphs (a) to (h) of subsection (3) being taken, or

(ii) without prejudice to what is referred to in paragraph (i), involves 2 or more steps or proceedings referred to in any of the foregoing paragraphs of subsection (3) (or elements of any of those steps or proceedings) being taken in a sequence whereby the final stage of them, in the opinion of the Bank, represents in practice a means by which a relevant claim may be so resolved or disposed of,

and a reference to the particular settlement channel used shall be construed as a reference to the particular step or proceedings, so referred to and taken (or, in the case of paragraph (ii), that which represents the final stage, as described in that paragraph, in the particular sequence of steps, proceedings or elements of them).

(3) Each of the following, in relation to a relevant claim, is a step or proceedings referred to in subsection (2)—

(a) direct negotiation, without that activity being preceded by employment of the procedures referred to in paragraph (b),

(b) the employment of the procedures under the Personal Injuries Assessment Board Act 2003 ,

(d) the final determination by a court of legal proceedings instituted in respect of the claim,

(e) the settlement of such legal proceedings,

(f) arbitration,

(g) mediation (within the meaning of the Mediation Act 2017 ), or

(h) any other means whatsoever.

(4) For the purposes of subsection (2) a relevant claim is—

(a) finally resolved when the claim is treated by the insurance undertaking as having been satisfied by it, and

(b) finally disposed of in the insurance undertaking’s favour when the claim is no longer treated by it as giving rise to any liability (actual or potential) on its part,

and (whether it is paragraph (a) or (b) that applies) the fact of the claim being so treated is (by whatsoever words used) stated in a record in writing prepared by the undertaking in the ordinary course of business.

(5) A reference in this Act to a record in writing or to a matter being recorded in writing includes a reference to any means, or the use of any means, by which a matter is recorded otherwise than in legible form but in a manner that enables the matter to be reproduced in legible form.

Expenses

5. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.

Relevant class or classes of non-life insurance: specification of such by means of regulations

6. (1) In this section—

“relevant object” means the object (in furtherance of which this Act has been enacted) that information be made available to the State so as to enable the identification of factors that influence the cost of relevant non-life insurance business across—

(a) the various sectors of the economy, and

(b) the various situations in which individuals have recourse to providing themselves with insurance cover;

“relevant principle” means the principle that, on any given occasion of the duty under subsection (3) being carried out and taking account of any existing classes of non-life insurance standing specified, priority shall be given by the Bank to the specification of a class that, in the opinion of the Bank, having regard to—

(a) the cost of insurance, associated with that class, for a sector, or individuals in a situation, referred to in the definition of “relevant object” in this subsection, and

(b) the possible adverse effects of such cost for that sector or those individuals,

is most likely to further the relevant object;

“specification of a class” means the specification, by regulations under subsection (3), of one or more classes of non-life insurance to be relevant classes of non-life insurance for the purposes of this Act and a reference to a class standing specified shall be construed accordingly.

(2) Without prejudice to the provision made by subsection (3) for consultation with the Minister, the Bank, in forming the opinion referred to in the definition of “relevant principle” in subsection (1), shall give special consideration to any views expressed by the Minister to it, on reasonable notification being given to the Minister by the Bank of its intention to carry out its duty under subsection (3) (which reasonable notification to the Minister the Bank is required to give) as to that which, regarding the matter referred to in that definition, is most likely to further the relevant object.

(3) The Bank shall—

(a) after consultation with the Minister, and

(b) having had regard to the relevant object and the relevant principle,

make regulations specifying one or more classes of non-life insurance to be relevant classes of non-life insurance for the purposes of this Act.

(4) Without prejudice to the generality of section 23 (1) of the Interpretation Act 2005 , the duty imposed on the Bank by subsection (3) shall be carried out from time to time as occasion requires.

Risks based in the State: making of regulations in respect of such matters

7. (1) The Bank shall, after consultation with the Minister, make regulations specifying the circumstances in which one or more risks falling within a relevant class of non-life insurance are to be regarded, for the purposes of this Act, as risks based in the State.

(2) Without prejudice to the generality of section 23 (1) of the Interpretation Act 2005 , the duty imposed on the Bank by subsection (1) shall be carried out from time to time as occasion requires.

(3) The Bank shall endeavour, as far as practicable and subject to subsection (5), to achieve the following result with respect to the provision (the “relevant provision”) that is made by the regulations under subsection (1) concerning the circumstances in which a particular risk, the subject of the regulations (the “risk concerned”) is to be regarded, for the purposes of this Act, as a risk based in the State.

(4) The result referred to in subsection (3) is that the relevant provision is analogous to the provision made by the specified definition in the Act of 1964 as to the circumstances in which a risk referred to in that Act, corresponding to the risk concerned, is, within the meaning of that Act, a risk in the State.

(5) In making the relevant provision, the Bank shall have regard to the need to disregard elements of the related specified definition in the Act of 1964 that are not appropriate for the purposes of this Act.

(6) In this section—

“related specified definition in the Act of 1964” means the definition of “excluded risk” in section 1 of the Act of 1964;

“specified definition in the Act of 1964” means the definition of “risk in the State” in section 1 of the Act of 1964.

Additional general function of Bank

8. (1) In addition to the functions conferred on it by section 5A(1) of the Act of 1942, the Bank shall have the following function.

(2) The function of the Bank referred to in subsection (1) is to provide for the collection and study of data from insurance undertakings on the income generated by, and costs associated with, the carrying on of relevant non-life insurance business and other matters relevant to such business and to publish information about that data, including in a report provided for by subsection (6).

(3) In relation to the data to be collected by the Bank from an insurance undertaking under subsection (2), the insurance undertaking shall use its best endeavours to provide the information to the Bank in such a form so that no individual is identifiable from it; if an individual is identifiable from the information so provided, the Bank shall ensure that the identity of that individual is not disclosed by it (and that requirement is in addition to any other provision of this Act and the Data Protection Act 2018 prohibiting or restricting the disclosure or use of particular information).

(4) The data referred to in subsection (2) may, in respect of any insurance undertaking, include in particular, in relation to a given period:

(a) premium and other income, including investment income;

(b) the extent of the insurance undertaking’s exposure to risk (that is to say, the extent of such exposure of the undertaking as measured by the Bank in a manner that the Bank considers to be fair and objective);

(d) the number and nature of relevant claims;

(e) details of the costs borne and provisions made associated with dealing with relevant claims;

(f) regarding the various settlement channels used, the amount paid in satisfaction of relevant claims through the use of each particular settlement channel and the costs incurred in the use of each such channel and, as respects circumstances in which relevant claims are finally disposed of in the insurance undertaking’s favour, any costs incurred in the use of the particular settlement channel concerned; and

(g) details relating to large relevant claims.

(5) In subsection (4)(e) “provisions” means the amounts needed under a certain measurement of present and future obligations to meet those obligations adequately.

(6) The Bank shall, from time to time and at least once a year following the year in which this section is commenced, publish a report that relates to relevant non-life insurance business for either, as it determines—

(a) each of the following purposes, or

(b) such and so many of them as it considers appropriate,

but, in carrying out its duty under this subsection, the Bank shall aim—

(i) where practicable (and, in particular, taking account of circumstances in which there is not available to the Bank up-to-date information to meet the purpose concerned), to make a determination as specified in paragraph (a), or

(ii) where it makes a determination as specified in paragraph (b), for the particular report published to cater for so many of the following purposes as is possible, taking account of the circumstances specified in paragraph (i) that may exist and any other relevant matters.

(7) Each of the following is a purpose referred to in subsection (6):

(a) increasing the level of information as concerns the relationship between insurance premiums and related costs;

(b) identifying current and emerging trends within relevant non-life insurance business;

(d) presenting a statistical analysis of income and costs related to providing relevant non-life insurance business;

(e) presenting a statistical analysis of information related to relevant claims; and

(f) presenting a statistical analysis of each particular settlement channel used in respect of such claims.

(8) A report under subsection (6) shall be based on information collected under subsection (2) and any other relevant information received, lawfully and in accordance with the Data Protection Act 2018 , by the Bank from any persons (whether insurance undertakings or not).

(9) The data to be included—

(a) in a report that is to be published under subsection (6), or

(b) in any other publication to be done, pursuant to subsection (2), by the Bank,

shall be combined in such a way so that no insurance undertaking or individual is identifiable from the data and any such report or other publication shall not otherwise identify any insurance undertaking or individual.

Amendment of Schedule 2 to Act of 1942

9. The Act of 1942 is amended in Part 1 of Schedule 2 by the insertion of the following:

“

No. - of 2018

Central Bank (National Claims Information Database) Act 2018

Sections 8 and 12

”.

Amendment of section 22 of Central Bank (Supervision and Enforcement) Act 2013

10. Section 22 of the Central Bank (Supervision and Enforcement) Act 2013 is amended by the substitution of the following subsection for subsection (1):

“(1) Where it is necessary to do so for the purpose of the performance of—

(a) the Bank’s functions under financial services legislation relating to the proper and effective regulation of financial service providers, or

(b) to the extent that any element of the function conferred on the Bank by section 8 of the Central Bank (National Claims Information Database) Act 2018 does not fall within the description of its functions contained in paragraph (a), that element of the function conferred on it by that section 8 ,

the Bank may, by notice in writing given to a person to whom this Part applies, require the person—

(i) to provide to the Bank the information specified in the notice,

(ii) to provide to the Bank the records so specified, or

(iii) to prepare and provide to the Bank the forecasts, plans, accounts or other documents so specified.”.

Expenses of Bank

11. (1) The Bank shall not provide any funds from its own resources, other than from those resources provided to it under subsections (2) and (3), to defray expenses of the Bank incurred by it in the performance of the function under section 8 (in subsections (2) and (3) referred to as “expenses of the Bank associated with its function under section 8 ”).

(2) The Central Bank Commission shall make regulations under section 32D of the Act of 1942 prescribing levies (in subsection (3) referred to as the “dedicated levies”) to be paid by insurance undertakings, and the monies received by the Bank by way of such levies shall be used by it to defray expenses of the Bank associated with its function under section 8 .

(3) Where—

(a) in any year, the Bank reasonably apprehends that it will be unable to defray all of the expenses of the Bank, arising in that year, associated with its function under section 8 from monies received by it by way of the dedicated levies, or

(b) notwithstanding the existence of the dedicated levies and, apart from the circumstance referred to in paragraph (a), for any reason there is an insufficiency in any year of monies available to the Bank to defray all of its expenses, arising in that year, associated with the foregoing function,

the Minister shall, on the written request of the Bank, advance to the Bank such sums as he or she thinks proper to enable the Bank to defray all of its expenses, arising in that year, associated with the foregoing function.

(4) The payments of sums referred to in subsection (3) shall be made on such terms as to repayment, interest and other matters as may be determined by the Minister after consulting the Bank.

(5) All monies from time to time required by the Minister to meet sums which may become payable by him or her under this section shall be advanced out of the Central Fund or the growing produce thereof.

Provision of collected data in certain circumstances

12. (1) Subject to subsections (2) to (4), the Bank may provide any data collected by it under section 8 to any person, on request being made of it in that behalf by the person.

(2) Data shall not be provided to a person under this section such that there is identifiable, from the data, any insurance undertaking or individual.

(3) Data shall not be provided to a person under this section if the Bank considers that—

(a) the provision of the data would involve a disclosure of information seriously prejudicial to the legitimate interests of consumers or of any company or other undertaking, or

(b) the data are not likely to be of value to the person by reason of—

(i) the Bank being of the opinion that the data are not complete or have not been sufficiently verified, or

(ii) any other exceptional circumstances.

(4) The Bank may stipulate that the provision of data under this section to a person is subject to compliance by the person with such one or more conditions as the Bank determines for the purposes of this section and, before the provision of any data under this section to the person, the Bank may require the person to give to it an undertaking in writing that the person will comply with those conditions.

Amendment of sections 8 and 14 of Civil Liability and Courts Act 2004

13. (1) In this section “Act of 2004” means the Civil Liability and Courts Act 2004 .

(2) Section 8(1) of the Act of 2004 is amended by:

(a) the substitution of “one month from the date of the cause of action,” for “2 months from the date of the cause of action, or as soon as practicable thereafter,”, and

(b) the substitution of “the court hearing the action shall” for “the court hearing the action may”.

(3) Section 14 of the Act of 2004 is amended by the insertion of the following subsection after subsection (4):

“(4A) Where there is a failure to comply with subsection (4), the court hearing the personal injuries action concerned shall—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require—

(i) make no order as to the payment of costs to the party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate.”.

Regulations

14. Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.

Short title and commencement

15. (1) This Act may be cited as the Central Bank (National Claims Information Database) Act 2018.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

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