The Personal Injuries Assessment Board (PIAB) Bill, due to be published tomorrow, may encounter problems with its constitutionality, the Bar Council has claimed.
A spokesman for the Tánaiste and Minister for Enterprise and Employment, Ms Harney, however, said it was hoped it would pass through the Oireachtas fairly quickly but admitted it would be "a bit tight" to get through by Christmas.
Meanwhile, Fine Gael has said it would not allow the Bill to be rushed through the Dáil without adequate debate.
The Bar Council has written to Ms Harney warning her that the Bill, if it follows the Draft Heads of Bill published a year ago, would offend against the constitutional protection of the citizen's right to fair procedure.
Council chairman Mr Conor Maguire, SC, said that, under the Heads of Bill, it was open to a respondent, usually an insurance company, to agree to a claim going before the PIAB, even if it had no intention of accepting the PIAB assessment. This would give it an unfair advantage over the claimant in subsequent litigation.
"By letting the claimant proceed before the board, the respondent will be able to flush out the quantum and other aspects of the claim, in a forum where the claimant may not have the resources to present his or her case as effectively as in the courts," he wrote.
"The respondent, who in most cases, will be an insurance company, is at all times fully funded and has its own claims managers and legal advisers. The respondent will gain full knowledge of the claimant's case and can then decide to fight the case in court knowing all aspects of the claimant's case.
"The unfairness of the system is all the more stark when one considers the back up resources available to the insurance companies. They can proceed secure in the knowledge that with insurance representation on the board, as of right, they have representation at all levels of this flawed proposed scheme."
Mr Maguire's predecessor as chairman of the Bar Council was the present Attorney General, Mr Rory Brady SC, and he wrote to the Tánaiste when the plan was first mooted warning of "serious practical, legal and constitutional problems" with the proposed legislation.
The Tánaiste's spokesman said that her Department was confident the constitutional problems had been addressed.
According to the draft Heads of Bill published last year, the system for assessing compensation through the PIAB, which will only arise in uncontested cases, will be a paper-based system. Compensation will be assessed by professional assessors based on medical reports and relevant information from public bodies like the Department of Social, Community and Family Affairs and the Revenue Commissioners. Lawyers will not be involved.
It will use a Book of Quantum, similar to that in operation in the UK, which spells out the range of compensation appropriate to various injuries.
The Irish Book of Quantum will be based on existing levels of compensation available from the courts.
If there is a dispute about the nature or level of injuries, expert evidence will be called.
The draft stated that fees would be charged for the use of the services of the PIAB, with an explanatory note that funding would be primarily from the respondents, that is, the insurers. The Estimates provided €5 million for the setting up of the PIAB next year.
Meanwhile, some cases will still be going to the courts. The PIAB is intended initially to deal only with employers' liability claims, and then only where liability is not contested. Motor insurance claims are likely to be added later.
In order to deal with insurance-related costs in the courts, the Minister for Justice, Mr McDowell, is preparing a Civil Liability and Courts Bill, aimed at improving court procedures and punishing those who exaggerate claims.