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Modernising Irish Copyright

Experts come in all shapes and sizes. Some deliver the equivalent of “flat-pack” reports; you have to assemble the useful product yourself.

That has not happened with the excellent Report of the Copyright Review Committee chaired by the tireless Eoin O’Dell

Its report is fully and instantly usable, subject to going through Dáil Éireann.

What’s not to like, when the Committee drafts your legislation and then goes on to draft suggested amendments to the District Court rules?

At McGarr Solicitors, we have nothing but good to say about the Report, despite some hurt to this particular head in just reading it (and disappointment that Mickey Mouse continues to escape his overdue copyright death, by sheltering from mousetraps in the EU bureaucracy [dressed in the legal equivalent of a US-provided Ironman outfit]).

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What price Freedom (of Information)

After Gavin Sheridan and I were on The Last Word (starting at 24:37) on Today FM yesterday, the Department of Public Expenditure and Reform for some reason decided it would issue a Press Release defending its Minister’s plan to multiply Ireland’s Freedom of Information Fees.

You can read the release, complete with fact checking by Gavin, here.

What caught my eye about the release was the assertion that on average it cost €600 to process an FOI request.

Let’s leave aside the fact that, in his 2009 paper “An economic argument for stronger Freedom of Information laws in Ireland” Dr. Nat O’Connor said

“It is highly probable that the fee regime is counter productive and costs more money to operate than it generates”

Let’s instead find the source of this €600 euro.

Oh, wait. Here it is. The figure appears in this February 2008 speech by Mr. B. Ahern.

The cost …has probably increased to €600

It was just as well our former Taoiseach inserted that “probably”, as the Secretary General of the Department of Finance in May of the same year, 2008, confirmed it was wrong.

The cost of processing an FOI request is estimated by my Department to be about €485

-Mr. Ciaran Connolly, Speech at Freedom of Information and Better Government – Assessing the First Ten Years, 15th May 2008

This makes it all the more surprising to see Mr. Ahern’s wrong figure reappear in yesterday’s press release from the Department of Public Expenditure

Freedom of Information: Fees to be multiplied in new amendment

As you may know, I made efforts this August to highlight a problem with Section 17 of the new Freedom of Information Bill. I pointed out that S17(4) sets out that Civil Servants could pretend that their computer files were made of paper.

See “The Irish State wishes to uninvent computers with new FOI Bill” for how that worked.

I also said that I thought the intent in this perverse legislative drafting was to deprive Gavin Sheridan of TheStory.ie of the ability to make data enquiries, of the sort that had uncovered, for instance, the expense claims of TDs, amongst many other issues. Now TheStory.ie has alerted readers to a new threat to openness and transparency in Ireland. A threat that, it says, may result in TheStory.ie site closing down.

The government has now published a series of amendments they intend to make during the next week. Thanks to some negative publicity, and the intervention of the Office of the Information Commissioner, Section 17(4) of the Bill has been improved (though not fixed). That’s the good news.

Now for the bad news.

A new provision, an amendment to Section 12, is now proposed. If this amendment goes through, a single FOI request will cost you multiples of the outrageous current €15 fee. How many multiples will depend on how many administrative units, in a Department or office, are required to take action to answer your question. For every internal unit bestirring itself, you have to pay another €15.

As you can’t know in advance how many units any question will require to act in order to be answered, you can only guess how much any FOI request will cost. We can’t know the definition of “unit”, referred to as “different functional areas” [of the FOI body] each body will adopt.

Ireland is already the only European country that charges any fee at all for initial FOI inquiries. Before any changes, it is already the most expensive in the world.

Creating an arbitrary fee structure, limited only by a requirement that all costs charged be in multiples of €15 is, as Gavin Sheridan notes, a regression. It is a response contrary to an essential modern democratic right; to know what is done in the name of the public.

Further, it is an interference with the public’s rights under Art 10 of the European Convention on Human Rights and Art 11 of the Charter of Fundamental Rights to receive information required to inform public debate.

An administration trying to block the public’s rights to know what is being done by public bodies is not acting as a servant of the public.

Simply put, it is a manoeuvre by people who hold power to maintain mastery over the rest of us by keeping us ignorant of what they know.

These changes are being enacted to avoid the transparency, openness and- above all else- accountability the Government professed to believe in.

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Injury claims are a political issue

This website is about the law. That’s why it is also about politics. They go together.

The Irish political class has wrecked Ireland economically, but its faults do not finish there. Political careers need money and other supports. A politician can trade public policy for that money and/or support. In other words, a policy can be promoted by people in circumstances where they appear to be independent; they do not appear to have any personal interest in the outcome, but the full circumstances, if known, show otherwise.

Take the issue of personal injury litigation. It is a settled political question in Ireland that victims of personal injury are entitled to compensation from persons who have caused the injury.

To say it is “settled” is not to say that it is not contested. It is contested, but the contest is conducted, generally, by denying victimhood to injured persons in the absence of a judgment in their favour. In short, their innocence is denied, at least implicitly.

That innocence and their right to compensation is made into a political football. It can be traded, and has been traded.

For this to happen in Ireland is, at first sight, baffling.

After all, the right to claim compensation for personal injury, from wrongdoers causing that injury, is secured in the Irish Constitution. Surely that is unassailable? Maybe not.

The Irish political class has wrecked Ireland. But, it is that class that is to the forefront in saying that Ireland is wrecked. Consequently, it can be plausibly said that we cannot afford “luxuries” any more. Luxuries like a constitution, say. Or luxuries like an adversarial court system to settle ALL disputes. Why not establish a system of mediation for personal injury claimants to seek compensation, or compel them to submit to binding arbitration of their claims?

Why not reduce the period of time under the Statute of Limitations for those victims to bring enforceable claims? (This has happened).

These are political questions. In Ireland, they appear in public as ideas, but never feature in any public debate. Political debate in Ireland is deficient. Arguably, that is the fault of the electorate. Irish citizens do not demonstrate a ready interest in, or capacity for, discussion of these topics.

On the other hand, arguably, the electorate has been infantilised by the Irish political class. This writer thinks this is the more likely explanation, of the two just recited.

This writer should declare his interest at this point; he earns his living litigating for, amongst others, victims of personal injury. He thinks, therefore, that any reasonable citizen would agree with his views on these topics. He thinks that victims of personal injury should be entitled to recover compensation from wrongdoers who have caused that injury. He thinks the compensation should be full, and adequate. He thinks that the victim should not be cheated of that right by an invidiously short time to make a valid claim, in default of which the right to claim is lost.

Until Ireland becomes wholly, or generally, a communitarian society the writer will hold his views.

What, in practice, does this mean?

It means, for instance, that we must acknowledge that Irish society has embraced the motor car as a major means of transport. It is inevitable that people will be injured in this system. Not just drivers will be injured, but small children, wholly innocent of any involvement in the system; children incapable of making decisions or choices as to the ordering of society or its transport systems.

In a communitarian society those children, (indeed, all victims, children AND adults), would be compensated for their injuries without quibble. In Ireland, that response is absent; so, we are not a communitarian society. However, we seem not to be able to live with the consequences of this fact.

So, we have decreed that every road vehicle and driver must have third party insurance in place to pay compensation to victims of the negligence etc. of the driver and/or owner of the vehicle. We have gone further; even if the vehicle is not insured (a criminal offence) we have arranged a system where the insurance companies, taking advantage of the business opportunities created by the State, must pay the victims of road traffic accidents, even in the absence of insurance. Significantly, compensation is payable only in the circumstances of the fault of someone other than the injured person.

In a communitarian society ALL victims of personal injury would be compensated for their injuries. This does not happen. Many people are injured solely through their own negligence. Many others are injured by uninsured, penurious wrongdoers, in circumstances where the State did not insist on the wrongdoers being insured. Those victims get no compensation.

In truth, where the State creates or facilitates a privately owned insurance business system and relies on that form of social or business scheme to distribute, in society, the losses that are personal injuries, the State is individualistic in its response and is not communitarian. Here are some more examples:

1. Unlike the UK, we do not make it compulsory that every employer be insured against liability for injuries to employees. That’s an individualistic response.

2. Unlike the UK, we do not insist that the logic of the privately owned insurance business system be followed to its conclusions, so that the injured employees (or others) are personally in a position to enforce the contract of insurance that was taken out to pay them compensation. That’s an individualistic response.

3. Unlike the UK, we do not have any effective means whereby a group of persons injured by one wrongdoer may, as a group, litigate the circumstances of their injuries together in one set of proceedings. (If this were allowed they could collectively pay the costs of that single action and reduce the multiplicity of legal costs their individual claims would generate). That’s an individualistic response.

4. Unlike the UK (and the US) we only collect statistics on personal injuries desultorily and piecemeal. That’s an individualistic response.

5. The Irish political class is not committed to the necessity for real independent regulation of social or business activities. That’s an individualistic response.

6. Outside the judicial system, Irish society is not committed to fairness as a principle underpinning society. That’s an individualistic response.

The tort system in the courts is intended for use as a balancing element of an individualistic society. An individualistic society would not long remain a democracy without the tort system to redistribute personal injury losses.

The citizens would reject that “compensation-free” society if they could. That’s why this website cannot ignore Irish politics.

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Pyrite: Liability, compensation and time limits for claims

The cost of remediation of buildings damaged by the incorporation of pyrites into them is considerable. This is unavoidable where the construction works have been completed and, typically, the pyrites are in the sub-base of the construction. The pyrites expand in certain circumstances, deforming the floor and walls and other structural elements of the building.

The current estimate is for 1,100 private dwellings affected. It has been estimated that each will cost €50,000 to repair. That’s a total of €50 million.

These houses have been built and bought within the recent past.

If a builder supplied construction services only (and supplied the pyrite affected material) but did not supply the land (because the consumer already owned it, say) then the Liability for Defective Products Act 1991 (as amended) would, most likely, apply to the supply of the pyrite affected material. Otherwise, being an immoveable, the building is not covered by the Liability for Defective Products Act 1991.

Of course, in every case, there will have been a contract between the consumer and the builder. In each such contract there will have been incorporated, either expressly or by implication (under statute) a term that the goods supplied under the contract will be of merchantable quality. Clearly, building materials that deform the structures of the building are not of merchantable quality.

Where the claim can be made in contract, only the builder is answerable to the consumer. Where the claim can also be made under the Liability for Defective Products Act 1991, the consumer may also sue the supplier(s) of the pyrite affected material.

Consumers need to know that the Statute of Limitations sets the period for issuing proceedings at six years for breach of contract (irrespective of knowledge) and under the Liability for Defective Products Act 1991, at three years “from the date on which the cause of action accrued or the date (if later) on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer”.

The Pyrite Panel remarked of the difficulties facing these consumers:

“Legal proceedings are costly and beyond the financial capacity of most householders and can be very time-demanding.”

This is a nearly correct description of the “pyrite problem” for consumers. If the builder has gone into liquidation that will probably extinguish the possibility of any successful litigation.

Luckily the problems described by the Panel are mostly practical. Lawyers generally solve these kinds of problems but have to be selective in the kind of person they agree to work for. More and more unscrupulous “free riders” are ruining facilities normally delivered by lawyers to people in need. Solicitors have to be extra careful in taking cases where unscrupulous behaviour on the part of “victims” can rebound on the solicitor

The problem is made more difficult by Irish state failures. In Ireland, we have no provision for a consumer to claim directly on the insurance policy of a defunct company (or person). This is the case even where all the premiums were paid as they fell due and the insurance company is at no disadvantage in settling the claim (except to pay it). It is different in the UK.

Liquidation aside, and in the absence of self-inflicted wounds of missing Limitation period deadlines, householders can generally and practically succeed in making recovery for the damage to their houses.

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Bad Pills

Many medicines are poisons. According to Paracelsus, everything is poisonous in some degree. This fact presents a legal problem, depending on how it is looked at; if a medicine damages the patient, how can the doctor or the manufacturer be held liable? It was generally known that the medicine was harmful, was it not?

The doctor’s case is more straightforward. If the doctor follows general practice and the manufacturer’s instructions, in the prescribing and administering of the medicine she will not be answerable, other things being equal, for any unintended or unanticipated damage caused by the medicine.

The manufacturer’s case is complicated. Pharmaceuticals are subject to the law of products liability. This means that an injured patient does not have to prove negligence on the part of the manufacturer if the product unintentionally injures the patient.

“Unintentionally” is the significant word. The EU products liability directive (Council Directive No. 85/374/EEC) and the  Liability for Defective Products Act 1991 each define defect by reference to safety and the reasonable expectations of “persons”. In modern times, medicinal products are sold with disclosure of possible and probable side effects and, of course, it would be easy for the manufacturer to establish that the product was, to some degree, poisonous anyway. So, the patient is taken to know of the effects of the medicine and can hardly complain if those effects appear. In other words, the patient must successfully plead and prove that the medicine is “defective” within EU products liability directive and The Liability for Defective Products Act 1991, and that may be very difficult.

One response to this is to insure against damage arising from the use of medical pharmaceuticals. This means that there is a source of funding to pay compensation for damage arising from the use of a medicine, subject only to proof of the connection between the medicine and the damage. Some states have adopted this course of action. This happens most often in connection with programmes of mass vaccination. Because of the large numbers involved, it is predictable that the possible undesirable  side effects will no longer be “possible” for some people; they will be actual.

In the absence of such a response there are difficult issues in products liability law when the words “unintentionally” and “disclosure” are looked at.

“Unintentionally” cannot refer to the intentions of the manufacturer only. Otherwise the manufacturer would never be liable for damage, regardless of the facts. In the case of medicinal products it must refer to the intention of the patient as mediated by the intention of the patient’s doctor. The latter is an essential actor; few patients are qualified to know when and by how much a medicine is appropriate for use.

Inevitably, the manufacturer will reveal a comprehensive list of possible and actual undesirable side effects. It is most unlikely that the patient becomes aware of these; it is the doctor who knows of them.

This is, in theory, a disclosure by the manufacturer. However, what the doctor needs to do is to balance risks. A list of possible or actual side effects is not in itself a full disclosure. It will not reveal how likely these effects are in any particular case. What is required is access to the history whereby the manufacturer learned of the possibility of the side effects.

To process this kind of information it is necessary to belong to a community. Doctors belong to such a community. Any individual doctor can seek out literature generated by other, more specialised, doctors (or chemists) wherein the history of the manufacturer’s product is reviewed, permitting a collective independent judgment about risk to be made. The patient’s doctor can then apply that knowledge and judgment to her patient.

The implications of this are substantial. A manufacturer cannot reveal some elements only of the history of the development of the medicine. What were the exact circumstances in which the manufacturer’s drug trials took place? What was the population subjected to them? What were the full results of all trials? Were some trials or their results not released to the public sphere?

In the absence of this information a patient (or her doctor) cannot be said to have an expectation implying knowledge of the likelihood of the relevant adverse event.

There is reason to believe that much of this information is withheld from the public.

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Your Cheating Heart

Some offences are forever associated with students, however unfairly. In fact they are just as likely to be committed by non students. Section 8 of the Criminal Justice (Theft and Fraud Offences) Act 2001 springs to mind. The section reads:

“8.—(1) Subject to subsection (2), a person who, knowing that payment on the spot for any goods obtained or any service done is required or expected, dishonestly makes off without having paid as required or expected and with the intention of avoiding payment on the spot is guilty of an offence.”

This is the offence committed by people who intentionally leave a restaurant without making payment for the meal they have eaten. Of course, it applies to a wide range of situations, from sales of goods and services, as in the case of a restaurant, to services only as in hairdressers and taxis.

We solicitors, like other debt collectors, frequently fail to see much difference in the terms of the Section and the failures of people in commerce to pay their bills. These failures are sometimes “cultural”. Who, from Ireland, is not struck by the success of the US system of delivering newspapers to consumers on the street? They insert money and gain access to the entire paper contents of the dispensing station but remove just the one copy for which they have paid.

It is hard to think that system would work in Ireland, but we surely cannot have more than the average rate of “free riders”?

The appropriate word to describe free riders is “uncivilized”.

This evokes the first cities of Sumer;Eridu, Ur and Uruk. Ur was a port city on the Persian Gulf. It is believed that Ur was founded in 3,800 BC. It is estimated that, by approximately 2,000 BC it had a population of 65,000. These cities could not have existed without the development of the personal qualities of the inhabitants whereby they looked, not just to their own interests, but to the interests of the community as a whole. Admittedly, if you did not belong to the community civilization stopped short of you; slavery was an early adjunct of the life of the cities.

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Truths, damned truths and statistics

“It is a truth universally acknowledged, that a single man in possession of a good fortune must be in want of a wife.”

One of the functions of a solicitor is to make the significant visible. On occasions this is easy; on others it is hard. It is easier if there is universal, or near-universal, acceptance of some aspect of reality. Much of reality is banal and the banal lacks significance, although it is true.

“Truth”, therefore must be selected for its significance.

It is reputed that the highest truth, an undeniable truth, is “Gospel truth”, but this reputation will not run very far when Gershwin can write in “It Ain’t Necessarily So” –

It ain’t necessarily so
It ain’t necessarily so
The t’ings dat yo’ li’ble
To read in de Bible,
It ain’t necessarily so.

There are some significant truths in the campaign on the abolition of the Seanad. We need an analogy to understand the first truth. If a doctor claims to have cured a patient, now promptly dead, we reject her meaning of “cured”. “Cured” implies restoration to health. “Health” is ambiguous but not so much that it includes death.

So, by analogy, reform of the Seanad does not extend to its abolition. The Government’s representatives expressly claim otherwise.

The second truth is the need to distinguish between “cost” and “savings”.

The Government, publicly, has claimed that the proposed abolition of the Seanad will save €20 million annually.

The Houses of the Oireachtas Commission has expressly warned parties that there is a distinction between costs and savings. In short, abolition of the Seanad will not be a saving on its costs. (If the costs are €20 million, the savings are much less.)

The Government now claims that they were disseminating a truth (much doubted, it seems) that the annual cost of the Seanad was €20 million.

A Government TD has admitted that the Government claim, of savings, was wrong.

In Ireland, even official truths are not true, despite being officially acknowledged, it seems.

We see now that the Government’s claim of a saving of €20 million was and is a factoid (an assumption or speculation that is reported and repeated so often that it becomes accepted as fact).

Litigation Costs

The Irish system underpinning the recovery of costs in Irish litigation is derived from British practice and systems but lags behind developments there.

The basic principle is that the client is responsible for paying his or her costs and may only recover those costs in the event of winning. The corollary of the second leg of the prior sentence is that the client is responsible for ALL costs in the event of losing. That means that the client is liable for the costs of the winning defendant as well as his/her costs.

This is unfair, socially. It means access to justice is provided to rich people but not to poor people. “Poor” is a relative term. Litigation is a risky activity. If a plaintiff cannot afford to take the risks of litigating he/she is excluded from access to justice.

The court system, on its own, cannot fix this problem. Judges do not have access to funding to help “worthy” causes. Occasionally the court will make no order in relation to costs and each party will bear its own costs only, but the facts of the case will decide this. In principle, why should an innocent defendant be put to loss by a law suit without legal foundation? (This is individual justice, but the system is still a denial of justice, socially).

Who can afford to lose in litigation? Very few people, is the answer. Even rich people will avoid litigation because of the risks. In one sense they can afford not to litigate if the stakes are too small to justify the trouble. In another sense their wealth shields them from events causing them loss.

However, if they do litigate, they have an indispensable advantage in the self-confidence that life has usually given them.

Litigants need to be self-confident. They need to understand what they are doing and what the issues are. They need to understand that litigation is not like a lottery; you do not win by chance, you win (usually) because you should win.

It is possible that, in a sense, more losses occur in litigation because it was never started than because it was commenced and was lost. You can be defeated before you start by the deterrence of the costs of litigation. This is one aspect of the “access to justice” problem.

What is implied here is the need for new and easy methods to fund litigation. The Chief Justice referred to this, obliquely, in her speech launching the Law Reform Commission’s paper on Multi Party Litigation.

Many ordinary people venture into litigation without worry, but they do so as defendants. In that role they will often have the benefit of an insurance policy that indemnifies them from the loss of the claim and/or a liability to pay the costs of the litigation. (The courts ignore this fact, usually).

Typically, the litigation arises from alleged negligence in the driving of a motor vehicle. It was the State that produced this result. Third party liability insurance is compulsory for driving in public.

In effect, the State has ignored its obligation to provide access to justice by failing to facilitate group funding for plaintiff litigation. Insurance is a form of group funding. Many people pay for it, but few people need it. The premiums paid by the many fund the few.

In the UK they have now made provision for Damages Based Agreements (“DBA”), having previously made provision for Contingency Fee Agreements (“CFA”). DBA means that the lawyers get a share of the damages recovered by a plaintiff; CFA means that the losing defendant has to pay extra plaintiff costs where the plaintiff’s lawyers have, effectively agreed to waive all or part of their fees if the litigation is unsuccessful. (This is the modern source of the phrase “No Win, No Fee”). Ireland has not made any provision for CFA. The use of the phrase “No Win, No Fee” in Ireland is a potentially expensive error.

For Personal Injury actions in the USA, DBA is the method of funding. The plaintiff’s lawyers must win to get paid and they take a share (a very large share) of the damages to pay for what are often very high costs. (This explains what appear to be, and are, high PI jury awards in the US.

Plaintiffs getting DBA generally take the view that, say, 50% of something is better than 100% of nothing.

To justify the new costs approach the UK judiciary has decreed that from April 2013 every Personal Injury claimant in the UK will receive 10% more in damages than before. (This was originally mooted in conjunction with a judicial admission that PI damages in the UK were low.)

In Ireland, it is expressly forbidden for lawyers to charge by reference to a percentage of the plaintiff’s compensation. So, there is no DBA in Ireland.

In fact, given the good work of the Law Reform Commission’s paper on Multi Party Litigation, that issue is the bellwether of the State’s intentions in giving Ireland’s citizens access to justice.

No Multi Party litigation means insufficient access to justice for individuals.

Beaumont Hospital and infections

Unwashed hands under UV light

HIQA has reported on the wholesale failure of staff in Beaumont hospital to wash their hands. (A pdf of their report is available here) The staff knows, in theory, about the germ theory of disease but like everybody else they experience its apparent refutation. We are surrounded by bacteria, we live in a sea of bacteria and few of us are seriously damaged by them. Why, then, is it unacceptable to fail to wash your hands?

The answer lies in the special environment of a hospital. Hospitals are, by definition, unhealthy places. Unhealthy people congregate there. They are encouraged to do so. If they are unhealthy because they have been attacked by unusual bacteria, pathogens, they have brought those pathogens to the hospital. Not only that, the living arrangements of the hospital facilitates the infection of other patients with the pathogen.

Consequently, there are diseases that are so closely associated with hospitals, it is unlikely a person would be infected elsewhere. These diseases are known as “nosocomial” diseases. This is of interest to lawyers.

Section 12 of the Safety, Health and Welfare at Work Act 2005 decrees:

“12.—Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare.”

This places a duty squarely on the hospital to effectively preclude a patient being infected with a nosocomial disease.

C. Difficile is, almost exclusively, a nosocomial disease. The bacterium exists in two states; an active state and as a spore. It is very difficult to cultivate in a laboratory in its active state (which difficulty is reflected in its name) and it is very difficult to kill in its spore state.

It is a serious disease, but can be suppressed by suitable antibiotics. Unfortunately, it is the use of antibiotics that creates the opportunity for it to proliferate in a patient. It is normally kept in check by the other bacteria of the human gut. These are killed by a typical course of antibiotics and C. Difficile then takes their place. It produces two toxins which attack and damage the colon.

Patients whose original complaint or illness involved their colon are at very serious risk from a C. Difficile infection. The chances of them dying are increased considerably.

There is no known case where a court decided a medical negligence claim against a hospital on the basis that the plaintiff contracted a nosocomial disease. The plaintiff will have to adduce more and other evidence of the negligence of the hospital in the infection of the plaintiff.

This, on one view, is difficult. It is very unlikely that a plaintiff can pin-point the act of negligence that infected him or her but there are other approaches to solving the problem.

In the case of a hospital, it is more likely that it is responsible for a C. Difficile infection, not by a positive act, but by a systemic failure.

Every hospital is obliged to have in place a written protocol for the staff to follow so that patients are kept safe. Beaumont hospital undoubtedly has such a protocol. Thanks to the HIQA report we know that it is not followed. Beaumont hospital, like all hospitals, is obliged to monitor the staff and ensure that protocols are followed. Clearly, it has failed and is failing, to do this.

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