This problem has now been resolved.
Thanks for your patience.
Due to a breakdown in our email providers’ servers, our office has not received any emails today (Mon 7th Nov).
Our providers assure us that no email has been lost and have estimated service will resume at 9am on Tuesday 8th Nov.
Thank you
.
This blog has looked at the drawbacks of informality in conducting court proceedings HERE.
It seems the situation can be worse than this blog had believed.
In Thema International Fund PLC v HSBC Institutional Trust Services [Ireland] (2011) IEHC the judge made the following remarks:
“It has become a growing practice for solicitors acting for parties in cases before the courts (and, I would venture to suggest, in particular, the Commercial Court) to copy correspondence to the court. Some lay litigants have adopted the same course.”
AND
“…care should be exercised that documents which may not ultimately be admitted are not brought to the court’s attention until such time as there has been a proper decision as to whether the relevant documentation is to be admitted.”
AND
“However, parties should exercise care to ensure that only documents which are properly before the court are included. It should not be assumed that a party has a right to bring documents to the court’s attention where there is at least an argument as to whether the document is properly before the court. Simply sending documents to the Court Registrar for the attention of the judge, without reaching agreement with the other side, is, in those circumstances not, in my view, proper practice.”
FINAL UPDATE, Mon 1st November 2011
All phones, fax and email communication have now been restored to our office. We are glad to be back.
Update Fri 11.40 We no longer have any Internet connection to our office. In addition Eircom now says that it estimates it will be Tuesday or Wednesday of next week before our line faults are repaired.
We regret the difficulties in contacting us and suggest that ordinary posted letters are the most reliable form of communication.
We will continue to update this post with any changes to the status of our communications if we get them.
Update Thurs 2.22 We are now intermittently receiving incoming calls. These are of very low audio quality. Our fax line is still down.
The most reliable method of contacting our office remains by email [email protected]
Update Thurs 11.38amEircom have told us they expect the fault to be repaired 2-4 days from being reported. We’re now in Day 3. Hopefully we won’t go all the way to 4. However, as of now, the problems below remain.
Update Wed 10.40am They say things get worse before they get better but we find it hard to see the fact that our fax line is now not working as a positive development. Email [email protected] now the best method of contact
6.44pm Update: Eircom are running line tests. They say they’ll let us know what the results of those tests are when they get them.
Our fax line is also out of service.
Our email contacts are still running. Please contact us at [email protected]
We will let you know when things are back to normal.
Many thanks.
Most right-thinking lawyers are Social Democrats. Mary Robinson declared herself to be such. Such lawyers find themselves thinking about the social purposes of law and reject the radicalism of individualism.
A Social Democrat will favour consumer protection; an individualist will not. To be radical rather than redundant, without explaining what you are radical about, is to be an anarchist and an anarchist thinks little about consumer rights. Even when you do explain what you are radical about you may reveal that, indeed, you are an anarchist.
The title of this post is a phrase from one of our opponents in a law suit. It was his gloss on interpretation of an Irish statute of 1952. We never knew, until he claimed it, that Ireland had a command economy in 1952 and still do not. (We are less certain about the economy of 2011).
These thoughts are prompted by the case of Noreside Construction Ltd. v Irish Ashphalt Ltd. [2011] IEHC
Here, the Plaintiff was constructing houses in Dublin on contract to the Local Authority. The Defendant supplied aggregate for use in the foundations. The Defendant failed to alert the Plaintiff that the aggregate contained pyrites. Pyrites are not suitable for house foundations; they cause upheaval and destroy the integrity of the construction.
The Defendant contended that its terms and conditions, as printed on its delivery dockets, were effective in excluding liability for consequential loss and limited any claims to the cost of replacing the aggregate itself.
The court found that the Defendant was wrong in thinking that its terms and conditions formed part of the contract; they did not. Furthermore, the contract contained an implied term of the merchantability of the product. (Student lawyers hear a lot about merchantability; practising lawyers less so).
To buy a house is the most significant purchase most people will make. It is the ultimate consumer purchase. That the consumer’s rights and remedies might in some way be constrained by the outcome of a “battle of the forms” between two commercial entities is not a rational ordering of social affairs. (It might require deployment of all the resources of both the Plaintiff and the Defendant in Noreside Construction Ltd. v Irish Ashphalt Ltd. to pay for the presumed loss to the purchasers of the houses).
Like many solicitors we at McGarr Solicitors are attending our Continuous Professional Development seminars. Solicitors have a quota of CPD work to complete to meet professional requirements.
Often, it is similar to chewing on sawdust. But not last night. The writer attended a seminar on firearms and fingerprints.
Fingerprints were a Victorian “discovery”. They are not really appreciated by Irish judges, who tend to think of them as assimilated with witness identification which is still treasured despite the formal warnings judges are obliged to deliver to juries about the dangers of visual identification.
In fact fingerprints are material for heavy duty intellectual analysis. See Henry Templeman HERE for a glance at the subject.
Templeman quotes a comment on the results of a proficiency test applied to156 fingerprint experts;
“’Errors of this magnitude within a discipline singularly admired and respected for its touted absolute certainty as an identification process have produced chilling and mind- numbing realities. Thirty-four participants, an incredible 22% of those involved, substituted presumed but false certainty for truth. By any measure, this represents a profile of practice that is unacceptable and thus demands positive action by the entire community.”
In fact, there is more art than science in fingerprinting. Zealotry is a danger; we do not want Dodge City cleaned up at all costs. No enthusiastic prosecutors, please.
In the nature of things, accusations are leveled at opponents in court. These accusations vary in nature and import. The most serious are found in criminal proceedings. There, the State pursues the defendant with a view to punishing him/her, possibly with imprisonment. Few criminal proceedings do not imply a moral failure in addition to a breach of the law.
However, even civil proceedings following a road traffic accident will generate pleadings criticising the defendant. They, too, may imply a moral failure on the part of the defendant, or, just as pertinently, may be construed as doing so.
Construction may be everything; if the object of criticism thinks the criticism may lower him/her in the estimation of right-thinking members of the community he/she may sue for defamation. Absolute privilege is a defence to a defamation action and, under Section 17 (2) (i) of the Defamation Act 2009, attaches to reports published of proceedings before the Irish courts whether in the Republic or in Northern Ireland. The Section reads;
“…it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…… a fair and accurate report of proceedings publicly heard before, or decision made public by, any court-….”
To avail of this provision, the proceedings must have been held in public. This means that, for instance, the content of pleadings or an affidavit not opened in court will not be covered by the provision. (The writers of such pleadings or affidavits are protected, with absolute privilege, under Section 17 (2) (g) of the Defamation Act 2009).
The reporters of those pleadings or affidavits, if they are not made public in the court proceedings (i.e. not opened in court) are protected by qualified privilege under Section 18 of the Defamation Act 2009.
What if the judge, for instance, mutters “…I’ve read the affidavit…” and moves on? Has it been opened? Is it reportable?
That is a current issue in the UK.
HERE is the legal submission, in skeleton form, of the Guardian newspaper on the entitlement of the newspaper to have access to the papers upon which the [UK criminal] Courts are making or going to make their judgments.
See HERE for a statement relevant to this question in an Irish context.
So, before you can publish “a fair and accurate report” you must access the material. There is no right of access, under the Freedom of Information Acts, to Irish court records. In the High Court the records are under the control of the President of the High Court and in the Circuit Court under the control of the President of the Circuit Court.
Currently, in the High Court, civil pleadings are no longer filed in the Court. They are simply exchanged between the litigants and, later, a booklet of pleadings is delivered to the Court to facilitate the hearing of the action.
All of this is in considerable contrast to US courts. There, the general public has access to the court records. Indeed, they are often published on the internet by the court authorities. This is essential, for instance, in relation to a class action. There, the general public must be able to understand the issues to know whether to subscribe to the proceedings as an injured claimant.
When will Ireland catch up with the UK, not to speak of the US?
Modern newspapers are, or have been, full of Tony Blair. However, the US Blairs are more notable, particularly Montgomery Blair.
A US lawyer, from Kentucky, he represented Dred Scott in Scott v Sandford [1857].
Dred Scott was a black slave, married to Harriet and each owned by Major Emerson of the US Army (in the case of Dred, since 1832). Major Emerson had consented to the marriage of Dred and Harriet and had taken them to Illinois and the Wisconsin Territory. In each of these places slavery was prohibited. In 1837 Major Emerson married Eliza Sanford. The Emersons and the Scotts moved in accordance with Major Emerson’s army assignments and the Scotts were in Missouri when Major Emerson died, his wife inheriting his estate, including Dred Scott.
Dred Scott offered to buy his freedom from Mrs. Emerson but she refused and in 1846 Dred Scott sued her, claiming he was entitled to his freedom. He ultimately lost in the Missouri Supreme Court, it finding that he should have made his claim while he was in the free territories of Illinois and the Wisconsin Territory.
Dred tried again, in 1853, in Federal court. The defendant was the then executor of Major Emerson’s estate, John Sanford. Ultimately, represented by Montgomery Blair, Dred Scott lost again in the US Supreme Court, (the court mis-spelling Sanford’s name as “Sandford”). The majority on the court denied that Dred Scott was a citizen of the US and therefore the US Supreme court lacked jurisdiction over his claims. It found that the applicable law was that of Missouri, in which Dred Scott was a slave.
The consequences of the decision were very far-reaching. There was an immediate financial upheaval; the possibility that the Southern states could expand slavery into the territories disrupted a political balance between the North and the South and led to the US Civil War.
During the war Montgomery Blair served in the Lincoln cabinet, retiring in 1864 as part of a deal to stall a Fremont candidacy for President, leaving the way open for Lincoln to seek a second term. Prior to that, Blair advocated the freeing of black slaves to undermine the power of the secessionists, a course followed by Lincoln in due course.
Like many lawyers, Mr. Blair’s representation of his client, Dred Scott, was not for money but from conviction.
As for Eliza Sanford, she learned there are some offers you should not refuse, even if you can. (She had gone to live in Massachusetts before the Supreme court decision and slavery was not permitted there. Massachusetts was a Union state in the war.)
Dolly Mapp was a formidable woman. When the cops of Cleveland Ohio arrived at her door, in the early 1960’s or thereabouts, seeking a person in her house, she declined to allow them entry. They called in reinforcements (what a woman!). They searched her house and found pornographic material. She was convicted, lost on appeal and won in the US Supreme court [Mapp v Ohio 367 US 643; S.Ct. 1684]. The cops had searched without a warrant. Dolly had been convicted under the law of Ohio. The US constitution [14th Amendment] protected a citizen from unreasonable search and seizure and in 1914 the US Supreme court had ruled evidence obtained in breach of the constitution could not be relied on in a Federal prosecution. Mapp v Ohio decided that that position also applied to State prosecutions. (Most criminal prosecutions were under State law, so most defendants had been left without the protection of the constitution until Mapp).
In or about 1986, on a tip-off, police in California flew an aeroplane over the backyard of Mr. Ciraolo. They perceived a crop of marijuana in his yard, got a search warrant and found 73 plants. The California court of appeals applied Katz v United States 389 U.S. 347 and ruled the flight an unauthorised search and a breach of Mr. Ciraolo’s expectation of privacy. The US Supreme court found against Ciraolo on the grounds that he had lost his right of expectation of privacy because he had exposed the back yard to the occupants of the numerous aeroplanes flying over his house. The court disregarded the fact that those occupants were passengers in domestic flights (at great heights, presumably) whose chances of inspecting and recognising marijuana in the backyard were nil.
One wonders what the US court will say when the cops buy and deploy drone aircraft and thermal imaging technology.
Then there are those special places like Birr, County Offaly where, recently, the 41st Irish Hot-Air Balloon competition took place. Will the Garda Síochána buy a balloon or opt for a drone?
The Gardaí have had a history of their own difficulties with search warrants and the like. See HERE for the latest episode on that front and for a very good analysis of the case law relating to that history.
