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39 2000

NATIONAL TREASURY MANAGEMENT AGENCY (AMENDMENT) ACT, 2000

PART 2

State Claims Agency

Interpretation.

6. —(1) In this Part—

“delegated claim” means a claim, or a claim of a class, the management of which stands delegated to the Agency under subsection (1) of section 9 and which is not the subject of a direction under subsection (4) of that section;

“manage” means—

(a) in relation to a claim, take the steps necessary or expedient for the purpose of disposing (whether by agreement or otherwise) of the claim and, without prejudice to the generality of the foregoing, includes—

(i) perform the clerical and other administrative functions relating to the claim and the disposal of it,

(ii) investigate the claim and any act, omission or other matter (and the circumstances thereof and any other matter relevant thereto) that occasioned the claim,

(iii) retain the services of professional and other expert advisers in relation to the claim and the other matters referred to in subparagraph (ii) and in relation to the liability (including the amount of the potential financial liability) of the State authority concerned in respect of the claim and the amount (if any) that would be reasonable to pay in settlement of the claim,

(iv) represent the State authority concerned in a court or other tribunal in relation to the claim,

and

(b) in relation to a counterclaim, take the steps necessary or expedient for the purpose of making and disposing of (whether by agreement or otherwise) the counterclaim and, without prejudice to the generality of the foregoing, includes—

(i) perform the clerical and other administrative functions relating to the making of the counterclaim,

(ii) investigate the counterclaim and any act, omission or other matter (and the circumstances thereof and any other matter relevant thereto) that occasioned the counterclaim,

(iii) retain the services of professional and other expert advisers in relation to the counterclaim and the other matters referred to in subparagraph (ii) and in relation to the liability (including the amount of the potential financial liability) of the claimant in respect of the counterclaim and the amount (if any) that would be reasonable to receive in settlement of the counterclaim,

(iv) represent the State authority concerned in a court or other tribunal in relation to the counterclaim,

and cognate words shall be construed accordingly;

“relevant Minister of the Government”, in relation to a claim or a delegated claim, as may be appropriate, means—

(a) in the case of a claim or delegated claim, as may be appropriate, made against a Minister of the Government, the Minister of the Government concerned,

(b) in the case of a claim or a delegated claim, as may be appropriate, made against the State or the Attorney General, the Taoiseach, and

(c) in the case of a claim or a delegated claim, as may be appropriate, made against any other State authority, the Minister of the Government at whose request an order may be made under section 9 (1) in relation to—

(i) the claim concerned, or

(ii) a class of claim to which the claim concerned belongs.

(2) Any function (which includes any power or duty) conferred, or any liability imposed, on a State authority by this Part shall, in the case of the State, be performed or undertaken on its behalf by the Taoiseach.

Claims and counterclaims to which Part 2 applies.

7. —(1) In this Part—

“claim” (other than in section 12 (4)) means a claim, other than one involving a question as to the validity of any law having regard to the provisions of the Constitution, that is wholly, or in the opinion of the Minister is mainly, one for compensation or damages for loss of life or personal injury, or loss of or damage to property, occasioned by an act, omission or other matter constituting a cause of action made against any one or more State authorities either alone or with any other person, but does not include—

(a) an application for compensation under the Garda Síochána (Compensation) Acts, 1941 and 1945,

(b) a claim against the Minister for Justice, Equality and Law Reform, the Commissioner of the Garda Síochána and the Governor of a prison or any of them in respect of an alleged assault upon the claimant by a member of the Garda Síochána or a prison officer of a prison, or

(c) a claim under the scheme administered by the Minister for Justice, Equality and Law Reform providing for compensation for personal injury criminally inflicted on prison officers of a prison,

and cognate words shall be construed accordingly;

“counterclaim” means a counterclaim made by a State authority for compensation or damages in relation to a matter the subject of a delegated claim;

“State authority” means—

(a) the State (whether or not described in the claim as Ireland),

(b) a Minister of the Government,

(c) a body specified in the Schedule or, if appropriate, the head of such a body,

(d) the Commissioner of the Garda Síochána,

(e) the Governor of a prison,

(f) the board of management of a community school, or a comprehensive school, which is a recognised school within the meaning of section 2 of the Education Act, 1998 ,

(g) the board of management of, or person for the time being managing, a school certified under section 45 of the Children Act, 1908, or a place of detention registered under section 108 of that Act, in which young offenders are detained,

(h) the Attorney General,

(i) a person in respect of whom a Minister of the Government pays, or agrees to pay, the amount (if any) payable in respect of a claim against the person, or

(j) any other body that the Minister may, at the request of that body, if appropriate, and with the consent of the relevant Minister of the Government, prescribe by order, being a body established by or under any enactment (other than the Companies Acts, 1963 to 1999), and financed wholly or partly, whether directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government, or the head of any such body,

and State authorities shall be construed accordingly.

(2) In this section—

“head”, in relation to a body referred to in paragraph (c) or (j) of the definition of “State authority” in subsection (1), means the person who holds, or performs the functions of, the office of chief executive officer (by whatever name called) of the body;

“personal injury” includes any disease and any impairment of a person's physical or mental condition except in paragraph (c) of the definition of “claim” in subsection (1);

“prison” means a place of custody administered by the Minister for Justice, Equality and Law Reform, and includes Saint Patrick's Institution, any place provided under section 2 of the Prisons Act, 1970 , or any place specified to be used as a prison under section 3 of the Prisons Act, 1972 , and “Governor” and “prison officer”, in relation to a prison, shall be construed accordingly.

Additional functions of Agency.

8. —(1) The Agency shall perform the function delegated to it under section 9 (1).

(2) The Agency shall manage counterclaims.

(3) The Agency shall manage delegated claims and counterclaims in such manner as to ensure that the liability of the State authorities in relation to such claims, and the expenses of the Agency in relation to such management, are contained at the lowest achievable level.

(4) (a) The Agency shall advise and assist a State authority whenever it considers it appropriate to do so or is requested by such an authority to do so in relation to the measures to be taken to prevent the occurrence, or to reduce the incidence, of acts, omissions or other matters occasioning, or that may occasion, delegated claims against such an authority, including measures to identify sources of risk that may occasion such claims.

(b) The advice under paragraph (a) may include advice for the purpose of preventing or reducing any such risk as is referred to in that paragraph and the assistance under that paragraph may include any one or more of the following:

(i) the provision to such an authority and its officers and other employees, or other persons nominated by it, of information, instruction and training for the purposes of enabling them to ascertain whether any such risk exists and if it does, of increasing the awareness of its existence and encouraging the adoption by that authority of appropriate measures to counter any such risk,

(ii) the assessment of any such risk, including the determination of whether it could give rise to a serious hazard,

(iii) the evaluation of the adequacy of the measures adopted by such an authority to counter any such risk,

(iv) the provision to such an authority of safety audits, inspections and reviews.

(5) (a) The Agency may, on behalf of a State authority, whenever it considers it appropriate to do so or is requested by such an authority to do so, place insurance with an insurer within the meaning of section 2 of the Insurance Act, 1989 , in respect of a risk that may occasion a delegated claim against such an authority.

(b) Before insurance is placed on behalf of a State authority under paragraph (a), the authority shall, on the written request of the Agency, pay to it the amount specified in the request within the period specified therein in respect of the premium for such insurance.

(6) The Agency shall be known as the State Claims Agency when performing the functions conferred on, or delegated to, it by or under this Part.

Delegation to Agency of claims management function.

9. —(1) (a) Subject to paragraph (b), the Government may, at the request of a Minister of the Government in whom functions in relation to a State authority are vested, by order delegate to the Agency the management of any claims, or classes of claims, against such an authority.

(b) An order under paragraph (a) may exempt any class of claims against all or any of the State authorities from the delegation effected by the order.

(c) A delegation under paragraph (a) may relate to claims made before the commencement of this Part or the commencement of the order concerned as well as to claims made after the commencement of the order concerned irrespective of whether the latter claims relate to acts, omissions or other matters occurring before or after the commencement of the order concerned or before the commencement of this Part.

(2) (a) Without prejudice to the generality of subsection (1), whenever an order under subsection (1) is in force, the Agency shall, if and in so far as the order so declares, have the following functions:

(i) advising the Minister, whenever he or she so requests, in relation to the management of delegated claims and counterclaims and matters connected therewith,

(ii) advising a relevant Minister of the Government, whenever he or she so requests, of the status and progress of the management of any delegated claim, or class of delegated claims, against, or the management of any counterclaim made by, such Minister of the Government or any other State authority other than the State and the Attorney General,

(iii) advising the Taoiseach, whenever he or she so requests, of the status and progress of the management of any delegated claim, or class of delegated claims, against, or the management of any counterclaim made by, the State or the Attorney General,

(iv) advising a State authority other than the State, a Minister of the Government or the Attorney General, whenever such an authority so requests, of the status and progress of the management of any delegated claim, or class of delegated claims, against, or the management of any counterclaim made by, such an authority.

(b) An order under subsection (1) may contain such ancillary and incidental provisions as the Government consider necessary or expedient for the purposes of the delegation effected by the order.

(3) Subject to subsection (4), the following provisions shall apply in relation to a delegation under this section and a declaration under subsection (2)(a), that is to say:

(a) the Government may at any time by order—

(i) revoke the delegation in whole or in part, or

(ii) provide that all or any of the functions to which the declaration relates shall cease to be performed by the Agency, and, upon the commencement of the order, the functions shall cease to be performed by the Agency,

(b) subject to paragraph (a), the delegation shall operate, so long as it continues in force, to confer on and vest in the Agency the function delegated by the delegation and the declaration shall operate, so long as it continues in force, to confer on and vest in the Agency each function specified in subsection (2)(a),

(c) the function delegated by the delegation or to which the declaration aforesaid relates shall be performed by the Agency subject to any conditions or restrictions specified in the order concerned under this section,

(d) any obligation or liability undertaken by the Agency consequent upon the performance by the Agency of a function to which the delegation or declaration relates shall be of the same force and effect as if the obligation or liability had been undertaken by the State authority concerned,

(e) a function of a State authority delegated by the delegation or to which the declaration relates shall, notwithstanding the delegation or declaration, as the case may be, continue to be vested in the State authority but shall be so vested concurrently with the Agency and so be capable of being performed by either the State authority concerned or the Agency, but shall be performed by the State authority concerned only if, and to the extent that, a direction under subsection (4) applies to it, and

(f) the delegation or declaration shall not remove or derogate from the responsibility of any Minister of the Government to Dáil Éireann or as a member of the Government for the performance of functions of that Minister of the Government thereby delegated or to which the declaration relates.

(4) The Minister may—

(a) at the request of the Taoiseach in the case of delegated claims against the State or the Attorney General, and

(b) at the request of a relevant Minister of the Government and after consultation with the Attorney General in the case of all other delegated claims,

if he or she is of opinion that it is in the interests of the State to do so, give the Agency a direction (which it shall comply with) not to begin, or to discontinue, managing any delegated claim specified in the direction and, following such a direction, the claim concerned shall not be managed or further managed by the Agency.

(5) The Government may by order amend or revoke an order under this section including an order under this subsection.

Functions of Attorney General.

10. —(1) The claims management functions shall, in so far as section 6(1) of the Ministers and Secretaries Act, 1924 , applies to them, be performed by the Agency on behalf of the Attorney General.

(2) The Attorney General may, for the purposes of subsection (1), request the Agency to furnish to him or her information in relation to such matters as he or she may specify concerning or relating to the performance by the Agency of the claims management functions, and the Agency shall comply with any such request.

(3) (a) The Attorney General may, for the purposes of subsection (1) and where he or she is satisfied that the interests of the State so require, give the Agency such directions (whether of a general or a particular nature) as he or she considers appropriate in relation to the performance by the Agency of the claims management functions, and the Agency shall comply with any such directions.

(b) Without prejudice to the generality of paragraph (a), a direction under this subsection may direct the Agency not to begin, or to discontinue, managing any delegated claim or class of delegated claims specified in the direction and such a direction shall remain in force for a period ending on—

(i) in the case of a delegated claim, the giving by the Minister of a direction under section 9 (4) in relation to the delegated claim so specified,

(ii) the revocation by the Government under section 9 (3) of a delegation in relation to the delegated claim or class of delegated claims so specified,

(iii) the expiration of a period of 30 days commencing on the date of the giving of the first-mentioned direction,

whichever occurs first.

(4) If the Attorney General gives a direction under subsection (3), he or she shall, as soon as practicable, inform the Taoiseach, the Minister and the relevant Minister of the Government that he or she has done so.

(5) The Attorney General may whenever he or she considers it necessary or expedient to do so, for the purposes of subsection (1), give general guidelines to the Agency and the Agency shall perform the claims management functions in accordance with any such guidelines.

(6) In this section the “claims management functions” means the functions referred to in subsections (1) and (2) of section 8 .

Duty to report adverse incidents

11. —(1) A State authority shall—

(a) report any adverse incident to the Agency as soon as may be,

(b) furnish to the Agency in relation to any such incident such information as such an authority considers relevant and such other information (if any) as the Agency considers relevant and specifies to such an authority,

(c) in relation to any such incident preserve and, if appropriate, furnish to the Agency such evidence as such an authority considers relevant and such other evidence (if any) as the Agency considers relevant and specifies to such an authority, and

(d) permit the Agency or any other person on behalf of the Agency to investigate any such incident in such manner and to such extent as the Agency considers appropriate.

(2) In this section “adverse incident” means any act, omission or other matter in relation to which a delegated claim has been made, or may, in the opinion of the State authority concerned, be made.

Policy Committee.

12. —(1) The Minister shall establish a committee (which is referred to in this Act as “the Policy Committee”) to advise the Agency on policy and procedures relating to the performance of the functions delegated to, or conferred on, it by or under this Part.

(2) The Policy Committee shall consist of a chairperson and 6 other members appointed by the Minister.

(3) Subject to subsections (1) and (2), the provisions of the Second Schedule to the Principal Act shall, with any necessary modifications, have effect with respect to the Policy Committee as they have effect with respect to the Committee.

(4) The Minister shall appoint a person to be a member of the Policy Committee only if he or she has substantial expertise and experience at a senior level in any of the following—

(a) the management of legal claims,

(b) litigation under the law relating to civil liability,

(c) insurance other than life assurance,

(d) risk management,

(e) actuarial matters,

(f) accountancy and auditing,

(g) the public service,

(h) trade union matters,

(i) consumer protection.

Reports to Policy Committee.

13. —Whenever so requested by the Policy Committee, the Agency shall make a report in writing to that Committee in relation to such matters connected with the performance of the functions delegated to, or conferred on, the Agency by or under this Part, or its activities generally in relation to those functions, as may be specified by that Committee.

Role of Advisory Committee in relation to additional functions of Agency under Part 2.

14. —Section 9 of the Principal Act is amended by the insertion of the following subsection after subsection (1):

“(1A) The Agency may refer matters relating to the functions delegated to, or conferred on, it by or under Part 2 of the National Treasury Management Agency (Amendment) Act, 2000, to the Committee only if authorised by guidelines under section 4(4) to do so and in accordance with any such guidelines.”.

Directions and guidelines to Agency for purposes of Part 2.

15. —Notwithstanding section 4(4) of the Principal Act, the Minister may give the Agency directions as to general policy, or guidelines, in relation to the performance by it of the functions delegated to, or conferred on, it by or under this Part only after consultation with the Policy Committee and such other Ministers of the Government as the Minister considers appropriate, and the Agency shall comply with any such directions and perform those functions in accordance with any such guidelines.

Satisfaction of claims and counterclaims.

16. —(1) (a) The Agency may, out of advances made by the Minister under subsection (7), pay—

(i) the amount of any costs, charges and expenses incurred from time to time by the Agency in respect of the services of professional and other expert advisers in relation to a delegated claim and, if appropriate, a counterclaim,

(ii) the amount of any award or settlement to be paid to a claimant in respect of a delegated claim,

(iii) the amount of any costs, charges and expenses of a claimant in relation to a delegated claim as agreed by the parties, or in default of agreement, as taxed or ascertained in accordance with rules of court, and

(iv) the amount of interest (if any) payable on any of the amounts referred to in subparagraphs (i), (ii) and (iii).

(b) A payment under paragraph (a) may be in respect of any amount referred to in subparagraph (i), (ii), (iii) or (iv) of that paragraph or part thereof.

(2) A State authority on whose behalf an amount is paid under subsection (1) shall, on the request of the Agency, pay to the Agency the amount so paid not later than 30 days from the receipt by it of the request concerned.

(3) Where a State authority contravenes subsection (2), it shall pay to the Agency the amount to which the request under that subsection relates, together with interest thereon, in respect of the period commencing on the expiration of the 30 days referred to in that subsection and ending on the date of the payment by the State authority concerned of the said amount, calculated at the rate or rates at which, during that period, interest on moneys deposited with the Central Bank of Ireland by the Exchequer is calculated.

(4) All moneys received by the Agency under subsection (2) or (3) shall be paid into the Post Office Savings Bank Fund.

(5) Where an award or settlement is made in favour of a State authority in respect of a counterclaim—

(a) the reference in subsection (1) (a) (ii) to the amount of any award or settlement to be paid to the claimant in respect of a delegated claim shall be construed as a reference to the net amount of such award or settlement following the set-off of the amount due to the State authority in respect of the counterclaim, and

(b) the reference in subsection (1) (a) (iii) to the amount of any costs, charges and expenses of the claimant in relation to the delegated claim concerned shall be construed as a reference to the amount of costs, charges and expenses which the claimant is entitled to recover in respect of the net amount of the award or settlement made in favour of the claimant in respect of the delegated claim concerned following the set-off of the amount due to the State authority in respect of the counterclaim.

(6) Where the amount of—

(a) an award or settlement made in favour of a State authority, and

(b) any costs, charges and expenses of such an authority as agreed by the parties, or in default of agreement, as taxed or ascertained in accordance with rules of court,

in respect of a counterclaim exceeds the total of the amounts referred to in subparagraphs (i), (ii), (iii) and (iv) of subsection (1)(a) in respect of the delegated claim concerned, the Agency shall, as soon as practicable, pay the excess to such an authority.

(7) The Minister may, for the purposes of subsection (1), advance moneys from the Post Office Savings Bank Fund to the Agency.

(8) If the Government makes an order under section 9 (1) in relation to a claim or a class of claims, the power of the Minister under subsection (7) may be exercised by the Agency in relation to the claim or class of claims concerned.

(9) The Minister may give directions or guidelines to the Agency in relation to the exercise by it of the power conferred on it by subsection (8), and the Agency shall comply with any such directions and exercise that power in accordance with any such guidelines.

Services of Chief State Solicitor.

17. —The Agency may retain the services of the Chief State Solicitor for any purpose relating to the management of delegated claims or counterclaims.