Generally, we expect High court judges to intend to do justice on a persistent basis. (Despite the title of the Department of Justice, Equality and Law Reform, we expect less from the Department, it being a bureaucracy).
Nonetheless it appeared necessary to the Oireachatas to enjoin judges to do justice. We see this in Section 28 of the Civil Liability and Courts Act 2004.
(Of course the foregoing is a fiction. Our Executive has ensured that the Oireachatas does not function correctly; somebody other than the Oireachats decided the terms of the Act).
Section 28 reads:-
“28.—(1) In a personal injuries action (other than an action under section 48 of the Act of 1961), any income, profit or gain in respect of which—
(a) the plaintiff is making a claim, and
(b) (i) a return has not been made before the hearing of the action in accordance with the Taxes Consolidation Act 1997 , or
(ii) the plaintiff has not otherwise notified the Revenue Commissioners,
shall, for the purposes of assessing damages, be disregarded by the court, unless the court considers that in all the circumstances it would be unjust to disregard such income, profit or gain.”
This provision bristles with difficulties for a judge. Whatever the judge decides, an appeal court could and probably would take a different view. The Section implies that some people will get the compensation and some people will not. Why? We do not know, and not to know is wrong. The fact that a Defendant is insured must be a deciding factor, otherwise the decision to withhold compensation would result in tax foregone by fraud (or error?) being credited to an insurance company.
Is it possible that one or more insurance companies procured the insertion of this Section into the Act?
Yes it is. We see from the Irish Times that a committee of bankers’ representatives was designing legislation (for banks) as late as 2008.
Now we know how Government works.