PIRB Advertising: A Double Standard in Irish Injury Claims?

There is a serious legal and public policy problem with the Personal Injuries Resolution Board’s advertising.

The problem is not that the public should be kept unaware of PIRB. That would be absurd. People should know what PIRB does. They should know that most personal injury claims in the Republic of Ireland are channelled through the Board process before court proceedings may be issued, subject to exceptions. They should know how applications are made, what mediation is, what assessment means, what fees are payable, what time limits apply, and what happens if an assessment is accepted or rejected.

Nor is the issue that PIRB should be forbidden from explaining its work. The 2022 Act expressly expanded the Board’s functions to include collecting and publishing information, conducting or commissioning research, and promoting public awareness of, and conducting public information campaigns in relation to, the work of the Board. (Irish Statute Book)

The problem starts when public information becomes promotional advertising.

It becomes more serious when that advertising concerns personal injury claims, an area where Irish law has deliberately restricted solicitors from advertising in ways that solicit, encourage or induce claims. It becomes more serious again when the advertiser is not a private solicitor, but a statutory body standing at the gateway between injured people, insurers, respondents, solicitors and the courts.

The central argument is this: PIRB is arguably acting beyond the proper limits of its statutory information function when it uses claimant-generating, comparative or emotive advertising to promote its own claims-resolution process. Even if PIRB is not directly bound by the solicitor advertising rules, such advertising is fundamentally inconsistent with the policy behind the advertising restrictions.

The policy behind the advertising restrictions

Irish law does not prohibit solicitors from advertising. Section 218 of the Legal Services Regulation Act 2015 permits legal practitioners to advertise their legal services. But that permission is subject to regulation. The LSRA may restrict legal advertising where the restriction is necessary to protect the independence, dignity and integrity of the legal profession, where there is an overriding public-interest reason, and where the restriction is proportionate and non-discriminatory. (Irish Statute Book)

That matters. The restrictions on personal injury advertising are not just professional etiquette. They reflect a public-interest judgment that advertising in this area can be harmful if it becomes too promotional.

Section 218 specifically permits restrictions on advertisements which expressly or impliedly solicit, encourage or offer inducements to people to make personal injury claims or seek legal services in connection with such claims. At the same time, the statute preserves the ability of solicitors to use the words “personal injuries” as a factual description of services. (Irish Statute Book)

That is the crucial distinction. Irish law does not suppress information. It suppresses claimant-generating promotion.

The 2020 Advertising Regulations carry that policy into binding rules for legal practitioners. They define an advertisement broadly as a communication intended to publicise or promote a legal practitioner, but they exclude communications primarily intended to give information on the law. They also define personal injury claims as claims for damages or compensation, whether made in court or otherwise, and define contentious business as including proceedings before the Personal Injuries Assessment Board, now PIRB. (Irish Statute Book)

The Regulations then prohibit legal-practitioner advertisements that solicit, encourage or offer inducements to people to make personal injury claims or seek legal services in connection with them. They also restrict “no win no fee” type language, free consultation type language, possible damages figures, misleading cost-risk implications, and success-rate advertising. (Irish Statute Book)

So the legal framework draws a clear line: information is allowed, promotion that stimulates personal injury claims is not.

PIRB’s statutory function is informational, not promotional

PIRB’s statutory power is not a general marketing power. It is a power to promote public awareness of the Board’s work and conduct public information campaigns in relation to that work. (Irish Statute Book)

That wording matters.

A lawful public information campaign might explain:

• Most personal injury claims must first be submitted to PIRB.
• PIRB may assess claims and may facilitate mediation.
• The Board does not act as the claimant’s solicitor.
• There are fees, forms and time limits.
• A respondent may accept or reject an assessment.
• A claimant may accept or reject an assessment.
• If an assessment is rejected, the claim may proceed to court.
• Costs consequences may arise.
• Independent legal advice may be appropriate.

That is public information. It is neutral. It helps people understand a statutory process.

But a campaign crosses the line when it frames PIRB as the easier, cheaper, faster, less painful or better alternative to litigation. At that point the campaign is no longer simply explaining the Board’s work. It is encouraging people to choose a particular claims route.

A statutory power to inform is not a statutory power to induce.

The advertising language matters

A publicly available advertising case study for PIAB’s “Warning” campaign describes the campaign in strikingly promotional terms. It uses the headline “PIAB makes personal injury claims less painful.” It says that for people seeking redress, the injury itself is not always the most painful part, and describes taking someone to court as potentially long, confrontational, painful and expensive. It then presents PIAB as a State body providing an alternative. (sweartaker.ie)

That is not merely procedural guidance. It is not just a neutral explanation of a statutory application form.

It is comparative. It contrasts court with PIRB.

It is emotive. It uses the language of pain and confrontation.

It is claimant-facing. It speaks to people seeking redress for personal injury.

It is promotional. It presents PIRB as a more attractive route.

If a solicitor placed a campaign saying that their service made personal injury claims “less painful,” that court was long, confrontational and expensive, and that the solicitor offered a faster, cheaper and better route, it would almost certainly raise serious regulatory questions. The problem would not be that the solicitor mentioned personal injuries. The problem would be that the solicitor was using personal injury advertising to influence claim behaviour.

The same concern should arise when PIRB does it.

PIRB’s best defence

PIRB’s best defence is obvious and should be acknowledged fairly. The 2022 Act and the State’s policy objectives do push the system towards more claims being resolved through the Board without litigation. The Department’s post-enactment report says the reform was designed to encourage more claimants and respondents to use the Board’s model to settle injury claims more quickly and less expensively, and the report identifies the primary policy objective as facilitating an increase in personal injury claims resolved through PIAB without recourse to litigation. (enterprise.gov.ie)

That is a legitimate State objective. The State is entitled to tell the public that PIRB exists. It is entitled to explain the Board’s statutory role. It is entitled to explain mediation, assessment, costs, timelines and procedural consequences. It is also entitled to say that legislation has reformed the Board to increase its capacity and encourage resolution without litigation.

But that is not the real issue.

The issue is whether PIRB may use claimant-generating, comparative and emotive advertising in a regulated personal injury environment where solicitors are prohibited from equivalent promotional messaging. The issue is not awareness. The issue is persuasion. The issue is not whether PIRB may explain its work. The issue is whether it may sell its process as the preferable claims route.

That is where the argument against PIRB becomes strong.

The solicitor comparison exposes the unfairness

Imagine a solicitor running a national campaign saying:

“Our personal injury service makes claims less painful.”

“Court can be long, confrontational, painful and expensive.”

“We offer a faster, cheaper and better option.”

“Claimants are satisfied with our service.”

Such advertising would not merely inform the public that the solicitor practises in personal injury law. It would encourage injured people to pursue claims through that solicitor. It would use emotional comparison. It would present litigation negatively and the advertiser’s own process positively. It would risk creating an incomplete impression of rights, risks, legal advice and costs.

Yet PIRB’s public advertising appears to occupy exactly that territory.

PIRB may say that the LSRA Regulations apply to legal practitioners, not to PIRB. Formally, that is correct. The Regulations define legal practitioners as practising solicitors, practising barristers, or former solicitors or barristers. (Irish Statute Book)

But that formal distinction does not answer the public policy objection. A State body should not be allowed to do, through public advertising, what solicitors are restrained from doing in the same personal injury claims environment.

The solicitor is restricted even though the solicitor owes duties to the client.

PIRB is not the claimant’s solicitor. PIRB does not act solely in the claimant’s interest. PIRB administers a statutory process. It has institutional objectives around processing claims, encouraging settlement, reducing litigation and supporting insurance reform policy.

Those objectives may often be legitimate. They may often overlap with the interests of claimants. But they are not the same as independent legal advice.

That is why PIRB’s advertising should be restrained, balanced and rights-aware.

The O’Brien principle: PIRB must not marginalise solicitors indirectly

The Supreme Court decision in O’Brien v Personal Injuries Assessment Board is highly relevant. The case concerned PIAB’s refusal to deal with a claimant’s solicitors. The court held that PIAB could not operate a policy that interfered with a claimant’s right to legal representation in the Board process. The case is authority for the proposition that administrative efficiency and cost reduction do not justify sidelining a claimant’s solicitor. (vLex)

That principle matters here.

If PIRB cannot marginalise solicitors directly through administrative policy, it should not be able to marginalise them indirectly through advertising.

A campaign that tells injured people, in effect, that PIRB is less painful, less confrontational, faster, cheaper and better risks doing by messaging what PIRB could not do by procedural rule. It risks making legal advice seem unnecessary or obstructive. It risks presenting the solicitor and the court system as the expensive problem, and PIRB as the simple solution.

That is not neutral public information. It is behavioural influence.

And in personal injury claims, behavioural influence is exactly what Irish advertising policy seeks to control.

Cost saving is not a complete answer

The State will point to cost and time savings. The Department’s post-enactment report cites Central Bank data indicating that, for claims under €100,000 in the first half of 2022, average legal costs associated with litigation were €17,813 compared with €1,156 under PIAB, and that litigation took more than two years longer than claims settled through the Board. (enterprise.gov.ie)

Those figures are important. They may justify reform. They may justify public information. They may justify explaining why PIRB exists.

But they do not justify promotional advertising.

There are several reasons.

First, lower average cost does not mean PIRB is the better route for every claimant. Some claims are straightforward. Others involve disputed liability, serious injury, future loss, complex medical causation, multiple respondents, psychological injury, limitation issues or uncertain prognosis.

Second, comparisons between litigation and PIRB may be misleading unless they explain that litigated claims may be more complex, more contested or higher risk.

Third, the claimant’s right to legal advice is not an inefficiency in the system. It is part of the protection of legal rights.

Fourth, if cost saving alone justified emotive claimant-facing advertising, the solicitor advertising restrictions would make little sense. Solicitors could simply say that advertising helped people access cheaper and quicker routes to compensation. The law does not allow that because the law recognises the danger of promotional messaging in this field.

Cost saving is relevant. It is not decisive.

The overlooked statutory question: PIRB provides a fee-funded claims service

There is a further statutory issue that deserves closer examination.

Section 5 of the Solicitors (Amendment) Act 2002 applies where a person who is not a solicitor advertises a specified service:

“being a service of a legal nature that could otherwise be provided by a solicitor, for or in expectation of a fee, gain or reward that is directly related to the provision of that service”

and where the advertisement would contravene the legal-services advertising regulations if it had been published by a solicitor.

The wording is disjunctive. It does not require proof of profit, commission, private enrichment or commercial gain. A directly related fee is sufficient.

That matters because PIRB charges case-specific fees for dealing with personal injury claims. A claimant pays an application fee, while respondents pay a substantially larger processing charge. These are not remote sources of general public funding. They arise specifically from the Board dealing with an individual claim, and the Board may refuse to process an application where the relevant claimant fee has not been paid.

The more difficult issue is whether the service being advertised is “of a legal nature” and is one that “could otherwise be provided by a solicitor.”

PIRB assesses and facilitates the resolution of legal claims for damages. It considers medical and financial evidence, applies the Personal Injuries Guidelines, values compensation, conducts mediation and produces assessments capable of resulting in legally enforceable orders to pay. Solicitors also assess liability and quantum, review evidence, advise on the Guidelines, negotiate settlements and participate in mediation.

PIRB would reasonably argue that only the Board can issue a statutory assessment under the 2003 Act and that a solicitor cannot reproduce that particular statutory function. However, PIRB’s advertising promotes a broader claims-assessment and claims-resolution service, not merely the technical act of issuing a statutory assessment. Substantial parts of that service are legal in nature and are ordinarily provided by solicitors.

The final question is whether the same advertisement would be lawful if published by a solicitor. The practical test is to take the wording of the PIRB advertisement, substitute the name of a solicitors’ firm and ask whether that firm would be permitted to tell injured people that its service was a faster, cheaper, less painful or better way to obtain compensation.

PIRB has an important defence. The 2022 Act expressly authorises it to promote public awareness of its work and to conduct public information campaigns. But that power does not expressly exempt PIRB from section 5, nor does it necessarily permit forms of claimant-generating advertising that would be prohibited if used by a solicitor.

This is not a concluded allegation that PIRB has breached section 5. There appears to be no reported decision applying the provision to PIRB, and the phrase “could otherwise be provided by a solicitor” would require careful judicial interpretation.

It is, however, a genuine statutory issue. It cannot be dismissed merely by saying that PIRB is a public body or that it does not operate for profit. The legislation does not require profit. It expressly refers to a fee, and PIRB charges fees directly connected with the claims service its advertising encourages the public to use.

The real line: public information, not claimant generation

PIRB should be permitted to tell the public what it does. That is not controversial.

But its communications should be neutral, balanced and rights-aware.

A proper campaign might say:

PIRB is the statutory body through which most personal injury claims must first pass.

PIRB may assess claims and may facilitate mediation.

There are exceptions.

There are fees.

There are time limits.

A medical report is required.

The Board does not act as your solicitor.

You may wish to obtain independent legal advice.

If an assessment is rejected, court proceedings may follow.

Costs consequences may arise.

That is information.

But language about making personal injury claims “less painful,” about court being long, confrontational and expensive, and about PIRB being a better option is different. That language persuades. It shapes claimant behaviour. It promotes one route over another.

That is not what a statutory information function should be used for.

Why this is fundamentally inconsistent with the policy behind the advertising restrictions

The policy behind the advertising restrictions is clear. Personal injury advertising must be restrained because injured people may be vulnerable, claims may be legally complex, and promotional messaging can distort decisions about legal rights.

Solicitors are restricted for that reason.

It would be incoherent if a State claims body could enter the same space and use public advertising to encourage claimants towards its own process using messaging that solicitors could not lawfully use.

The asymmetry is stark.

A solicitor who owes duties to the client is restrained.

A statutory body that does not act for the claimant appears freer to influence the claimant.

A solicitor cannot use claimant-generating personal injury advertising.

PIRB appears to be able to promote its own personal injury claims pathway as less painful and preferable.

That is backwards. The State body should be held to a higher standard of neutrality, not a lower one.

Conclusion

PIRB should inform the public. It should not market itself to injured people in a way that resembles personal injury claims advertising.

The 2022 Act gives PIRB a public information function. It does not clearly authorise claimant-generating, comparative or emotive advertising that presents PIRB as the less painful, cheaper, faster or better route. Once PIRB moves from explanation to persuasion, it is arguably acting beyond the proper limits of its statutory information function.

The issue is not whether PIRB may promote awareness. It may.

The issue is whether PIRB may use promotional advertising techniques in a personal injury claims environment where solicitors are deliberately restricted from doing the same thing.

That is the real problem.

PIRB’s advertising is not necessarily unlawful simply because it mentions personal injury claims. But advertising that uses emotive comparison, claimant satisfaction, cost contrast and “better option” messaging is fundamentally inconsistent with the policy behind the advertising restrictions.

The proper solution is not silence. It is restraint.

PIRB should confine itself to neutral, balanced, rights-aware public information. It should avoid claimant-generating language. It should avoid emotional comparisons with court. It should clearly state that it does not act for claimants and does not provide legal advice. And where it discusses cost or speed, it should do so with proper context and without implying that independent legal advice is unnecessary.

A State body should not be permitted to do indirectly what Irish legal policy prevents solicitors from doing directly.