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Passports

A passport is a very odd document. It does not belong to the bearer. It grew from a “letter of introduction” to its present form. It is a request from the home state of the traveller to the state or states to which the traveller is going, to accord the traveller respect and not to infringe his/her rights.

As an instance of this Giovanni Belzoni, an Italian strongman (literally), in 1815 procured a letter from the British consul in Naples to allow him to travel to Egypt where he explored many of the sights of Egypt and used explosives to break into the great pyramid where he wrote a message on the roof of one if its large chambers, still to be seen today.

This instance was instructive; Belzoni was a native of Padua, part of the Venetian Republic. Napoleon had destroyed the Republic and by 1815 the British dominated the Mediterranean and Egypt in particular, filling a vacuum after Napoleon defeated the Mameluke rulers of that country. Belzoni had lived in Britain for a period. So, he seemed an appropriate recipient of a letter of introduction from the ascendant power.

In modern times, refugees can get the equivalent of such a document from the United Nations Commissioner for refugees; by definition, their own state will not give them a passport.

So, what started as a handy or valuable thing to have on your travels has become an essential thing to have. The “friendly” state to which you travel will be anything but friendly if you do not have your passport.

In 1981 Philip Agee, a US citizen ran into some passport trouble; it was revoked by Alexander Haig the Secretary of State . At the time Agee was in West Germany. Agee, a former CIA agent, had engaged in a programme to publicly disclose the identities of the agents of the CIA around the world. Agee issued proceedings in a US federal court to restrain Haig in his actions. Agee won and won again on appeal. The case came on in the US Supreme court on further appeal where Haig won. (The Chief Justice, Burger, was a Nixon appointee.) The judgment recited the history of US passports; the history had commenced with the Passport Act of 1856 (a fateful and dismal year for the US).

Haig v Agee has had a significant effect in that it expanded the power of the Executive at the expense of the US Congress. In effect, the Supreme Court assigned powers to the Executive because the Congress had not expressly denied the power to the Executive. (A case, surely, from Agee’s point of view, of great unintended effects).

As for Agee, he promoted tourism to Cuba for US citizens, finally dying in 2008, just two years before Haig.

Independent Contractors

All employers have a responsibility to protect their employees, contractors and visitors from accidents and injuries. The obligation to secure the safety of independent contractors is specifically expressed in Section 12 of the Safety, Health and Welfare at Work Act 2005.

This means that confusion as to who is or is not an employee need not deprive an injured person from securing proper compensation when injured in a workplace.

The employers duty includes ensuring:

That the employer provide employees with the necessary machinery and tools to complete the job. Those tools and machines are to be maintained in a safe condition.

The workplace must be kept in a safe, tidy condition with floors, doors and gates clean and clear and free from hazards.

The employer is vicariously for the negligence of his/her employees, so a worker injured by the negligence of a fellow worker is entitled to compensation from the employer.

Employees working at a height are protected by S. I. No. 318/2006 – Safety, Health and Welfare at Work (Work at Height) Regulations 2006.

 

All Together Now…!

Collectively, lawyers are, sometimes, fantasists. We know this from the postulation of “the man on the Clapham omnibus” or the proposition “…something snapped in my brain…”.

These fantasies are overt. We live with others that are covert. I have in mind the continued refusal of the Irish courts to make provision for class actions.

Currently, the courts will only admit of claims from single persons or, exceptionally, groups who have suffered the same damage in the same circumstances. These groups are, in effect, individual litigants who have made their claim in the same proceedings. They will know each other or their lawyer will know each of them in detail.

In effect, the Irish courts are imposing a narrow political and social vision of society on the Irish people. That vision admits as legitimate only the claims of the individual (usually a man). In fact we know very well that society functions through group action and that the groups are often very large.

This attitude by the Irish courts is not exceptional. The EU is toying, again, with the idea of permitting limited class actions in member states. See an earlier post on this HERE.

In the meantime, UK courts have, without significant difficulty, made provision for the bringing of class actions, We see the result of that in the capitulation by Royal Dutch Shell in a class action brought by Leigh Day (solicitors) on behalf of the population of Bodo, a town in Nigeria.

Will Ireland suffer the humiliation of Irish citizens bringing a class action in London for events which happened in Ireland?

Just a minute!

See the judgment in Carroll v Mater Misericordiae Hospital [IEHC] 2011.

What a pity the court failed to make clear whether the Plaintiff had made an error, by applying to the Personal Injuries Assessment Board for an authorisation to issue proceedings against the Defendant, or not.

In addition, did PIAB fail to alert her in timely fashion that she was wasting time?

(Injuries sustained in the provision of a health care service are exempt from the need to apply to PIAB. An application to PIAB in such a case is a waste of time. Time is often critical, especially in medical negligence cases. It does not stop running if PIAB has no jurisdiction. That is why it was desirable that the court recite all the facts in the judgment.)

Compensation Culture

This writer remembers, he thinks correctly, that the phrase “compo culture” was coined by a PR spokesman for Dublin Corporation (now Dublin City Council). Probably the spokesman was simply adapting a phrase coined elsewhere, because the title to this post is known in the UK and, it appears in Australia.

Taken literally, we can confidently say that it is a universal social principle that compensation be paid where loss is suffered and the liability to pay for that loss lies with someone other than the victim.

This formulation is very wide; it will cover cases of injury arising from negligence, say, (See HERE for a treatment of Tort law in common law jurisdictions) but also claims for indemnity under an insurance contract.

The principle is not undermined by individual failures in making payment.

Taken with the provisions of domestic law a regional example of that universal principle is to be found in the European Convention on Human Rights (Article 6).

We are now, unfortunately, familiar with some compensation principles which, by arcane means, apply when banks fail. Certain creditors of such banks are compensated for their losses arising from default. The compensation is so certain that the default is scarcely admitted and is, for practical purposes, imperceptible. By those arcane means the liability to pay the compensation is passed to the citizens of the country responsible for supervising the failed bank. (The arcane means are not legally binding means).

It was always clear that the phrase “compo culture” was not an attempt to deny any compensation to any and all claimants; it was directed against one small class of persons, those persons who had been personally injured by negligence or breach of statutory duty. In effect, it was a brazen effort, if taken literally, to repudiate the obligation on wrongdoers of remedying the losses they had inflicted on others.

Life is complicated; consequently it has come about that the liability to pay compensation for personal injury frequently rests on both a liability in negligence and a liability under a contract of insurance. We see this in Domican v AXA Insurance Ltd. [IEHC] 2007 where the judge remarked that the plaintiff and the defendant had a relationship with each other (arising from the fact that the defendant had agreed to insure and indemnify a person whom the plaintiff claimed had injured him through negligence). In the UK that relationship is expressed in a civilized way in the Third Parties (Rights Against Insurers) Act 2010.

Ireland has no such legislation (and no proposals to remedy the situation). The UK made such provision as far back as 1933.

The Irish State has a very poor record in defending the constitutional right to compensation for personal injury. That should come as no surprise when we reflect on the reason why the Minister for Defence (and Ireland consequently) became liable to compensate soldiers in what was known as “the Army deafness cases”. A civil servant had consciously decided not to make provision to protect the hearing of soldiers from exposure to loud and damaging noise. That decision was recorded and the record was obtained by the claimant soldiers, all of whom could show they suffered hearing loss or damage following that decision. (Even without the decision the State would have been liable; it was not a novelty that loud noise is dangerous). The reason for the poor record is straightforward; Ireland clearly has (or had) a very poor quality of civil servant and politician. (In the Irish Times of 11th December 1997 a headline read; “Smith says deafness claims are wrong and immoral”. Smith was the Minister for Defence.)

It is generous to say Ireland’s record is poor on this issue. Ireland is malevolent on the point. See HERE and HERE for this writer’s opinions.

 

Legal Fees

Which of us is happy with our handwriting? Some, no doubt, but for many of us the admirable writing in our school handwriting workbooks is a thing of the past.

[The United States of America produced its Declaration of Independence in cursive script (HERE)]

So it is with other standards. Here in Ireland we call cursive script joined-up-writing and we aspire to that, but we have little tradition of its cousin, joined-up-government.

In Ireland, government must be conducted in accordance with the Irish Constitution and in pursuit of its objectives. One of those objectives is to vindicate the person [or the good name] of the citizen. That means that if a person is injured the State must and will ensure the citizen is compensated by any wrongdoer responsible for the injury.

You would think that this imperative would produce a regime directed to that purpose, but if you did you would be wrong.

Sure, in law a wrongdoer is liable to pay compensation, but Ireland is not anxious to ensure that that happens. If it were it would have introduced a system currently to be found in the United Kingdom. There, an injured person can enter an agreement with a lawyer to pay an enhanced fee for legal services, conditional on the claim being successful [“Conditional Fee Agreement”]. The defendant will then be liable for that fee in the event of success. In short, the UK recognizes that poor claimants are at a disadvantage relative to rich claimants, in legal proceedings.

This is an inherent feature of the previous UK position [and the current Irish one] where everybody is assumed to be a prosperous gentleman [probably Victorian] who pays his lawyer’s bills on a weekly or monthly basis and expects to recover those expenditures from any wrongdoer when he is successful in his claim that his lawyer prosecutes.

That assumed position is unreal. Such prosperous gentlemen are few and far between. Everybody knows this and yet, in Ireland, nothing is done to remedy the situation.

In fact, the opposite has happened. The government established the Personal Injuries Assessment Board [“PIAB”] to assist defendants. No claimant’s lawyer’s fees are payable by the respondent in the PIAB system. PIAB itself assures claimants that they do not need a lawyer to represent them, a claim at once untrue and an insult.

Any intelligent PIAB claimant must engage a lawyer at his or her own expense without any chance of making the defendant wrongdoer assume responsibility for that expense despite the fact that the defendant caused the expense to be accrued.

On top of all of that, in Ireland it is illegal for a lawyer to advertise that he or she will act for a claimant on the basis that the claimant will not have to pay legal fees if the claim is unsuccessful.

All in all, these provisions and arrangements are in direct opposition to the objectives of the Irish Constitution.

 

IMF- the future on legal costs

Ireland is a small place; we should be temperate in our comments because we may offend where no offence is meant and our reduced “degrees of separation” makes the comment fester.

Bearing that in mind, see this newspaper article from the Sunday Business Post of last year. The subject is legal costs. This writer has much to say on the subject, which is not to say the writer is always right.

However, the writer is confident of this; there is a great deal of hoopla dished out on the subject. This post is a small attempt to look at some proposed nostrums and the cited Sunday Business Post article is useful for collecting them together in a “gentleman’s cabinet of curiosities”.

1.       Assess costs by reference to the work actually done. No reasonable person could dispute this. However, as Milton knew,

“They also serve who only stand and wait.”

Lawyers spend an inordinate amount of time standing and waiting, sometimes both. One solution to this aspect of things is that lawyers might charge by reference to time expended. In short, while they are waiting, “doing nothing”, they are entitled to be paid. Taxi drivers operate to some extent on this principle. So, what looked like a reasonable proposition needs refinement by the careful definition of what is meant by “work”. Then we need only make the “assessment” of value. The work of lawyers is not always equal or comparable. That is, some lawyers produce better work than others. (This can sometimes be explained by the role the lawyers are playing; in civil litigation, generally, a plaintiff’s barrister has a greater burden than a defendant’s barrister). One expression of this is to say that, not only do you need to know how to hit the nail on the head, you need to know which nail to hit and when to hit it.

2.       Assess costs by reference to the work appropriately done. Again, no reasonable person could dispute this but who is to decide what is appropriate? Generally speaking, following convention is a reasonable guide to doing appropriate work. (Another solution is that adopted by the Taxing masters of the High Court, who have assigned to barristers the job of defining what is appropriate work to bring an action on for trial. Of course, the Taxing masters are themselves an answer to the question.)

3.       Liberalise conveyancing services. This writer does not know what this phrase means.

4.       Allow clients to switch solicitors. Currently clients may have any number of solicitors they want. They may change their solicitor in any particular matter. What the proposal really means is this; that the client be permitted to change solicitor without reference to the fact that he or she owes the solicitor outstanding fees for work done in the matter. Currently, solicitors rely on a lien on papers to secure them their fees. (The client may withdraw instructions but will not get his or her documents or papers unless the outstanding fee is paid). If solicitors lose that lien they will, inevitably, require payment in advance for their services. That will have social consequences generally considered to be undesirable.

5.       Give the public direct access to barristers. Barristers, generally, do not want this and in due course, neither will a select group of the public – those members of the public who have accessed barristers directly. This last comment will be wrong, in time. That time will arrive when barristers have sufficiently changed to become very like solicitors. Then, they will take and manage client money; they will require larger premises and more staff and they will require to pay more for their professional indemnity insurance.

6.       Permit partnerships for barristers. Why not? Chambers of barristers in the UK very often deliver services as if the chambers were a partnership, but the Law Library in Dublin does the same. These are structures to pool resources and reduce costs. The missing element is the allocation of loss, due to wrongdoing or negligence, on a group rather than a sole practitioner. If barristers formed partnerships it would be for the presumed benefit, to them, of attracting more clients due to the extra security of the collective responsibility, but that is predicated on the supposed inadequacy of current professional indemnity insurance for barristers. If it is inadequate that problem should be addressed immediately.

7.       Increase the numbers of lawyers. Currently, as many as 1,300 solicitors are unemployed. Practising barristers are self employed. They are not so much unemployed as underemployed. Some are much more underemployed than others. Why generate more unemployment?

This subject of legal costs is reminiscent of the “discovery” of “Ida”, a 47 million year old fossil. The press release promised much as Time magazine remarked;

“All of which renders the press release touting a “revolutionary scientific find that will change everything” absolutely true — as long as by “everything,” you mean “whether the branch of the primate family that includes monkeys, apes and humans comes from the suborder strepsirrhinae or the suborder haplorrhinae,” according to the PLoS One paper. And by “change,” you mean “adds information that may or may not help settle the question, but whose implications won’t be known for a long time in any case.”

(See the New Scientist article on the topic HERE, paying close attention to the diagram HERE.)

Government

Government is very wasteful. Anybody with any experience of government will see this promptly.

Public speeches or comments by politicians should always be seen in that context.

One is reminded of the history of waste disposal and control in Ireland. Local Authorities were the regulators of waste disposal and were the greatest offenders; their sewage, alone, was a source of great damage and offence.

These are my thoughts as I note that, shortly, the Minister for Justice, Equality and Law Reform (“MJELR”) will disclose his plans for conformity with the IMF/EU “reforms” of the legal professions.

As I understand it, the professed intention is to eliminate wasteful costs.

To that end, the Minister could do worse than have a word with his fellow EU Ministers for Justice about extradition.

Surely the provisions of Section 11 of the Extradition (European Union Conventions) Act 2001 need adjusting?

They are too low.

Many offenders in Ireland, guilty of an offence falling within the terms (but not the application) of Section 11 would qualify for the provisions of the Probation of Offenders Act 1907.

What the EU states have done is this; they have resolved to spend money without reserve in pursuit of EU citizens who have collided with State power. They are saying there will be no opportunity to escape the State, regardless of the triviality of the offence.

Who pays for this? Well, in Ireland, the taxpayers pay and the MJELR spends that money enthusiastically.

When Ireland receives a warrant from another EU state for the extradition of a person a very costly process is commenced. This should happen in appropriate cases, but not in inappropriate cases.

It can, and does happen, that extradition requests are made in cases where the “absconder” received a suspended sentence.

Does the MJELR keep a horse? Does he not notice he needs to clean his stables?

 

SMDF: Vote no

The Council of the Law Society of Ireland has proposed that the members of the Law society vote for the following proposal:

“That [the members] approve[s] the recommendation of the Society’s Council to provide financial support to the Solicitors Mutual Defence Fund…”

Surprisingly for lawyers, the Council seems not to recognise that it carries a risk of non-persuasion. This is evidenced in its several failures to treat the members respectfully.

Why did the Council submit the proposal to the members, rather than adopt it at the Council? The Council elided the question, but the answer is very relevant. Many of the Council members are also members of the SMDF and would therefore, be conflicted. A vote by persons with a conflict of interest would be easily overturned in the appropriate forum. In short, the Council could not lawfully adopt the proposal.

The Council has not been restrained in its advocacy of the proposal. It has urged its adoption on the Law Society members. It is using the resources of the Law Society to procure its adoption. It is doing this without declaring the conflict of interest of the Council’s SMDF members. It is the fiduciary duty of corporate directors to avoid conflicts and they are further bound to disclose them.

The proposal is of doubtful legality. The SMDF, the Council of the Law Society says, is a private independent body, not controlled by the Law Society. The funding of the SMDF bailout will not be voluntary. It will be enforced by a planned refusal of the Law Society to make it a condition, of the receipt of an annual practicing certificate, that solicitors pay a levy for the bailout.

The Council has, it says, received legal advice from Counsel that the proposal is lawful. It has not disclosed that advice to the members, and clearly the Council has no intention of disclosing it now. It is not credible, without full disclosure, that the Council has such advice.

The claimed source of the law validating or empowering the proposal is Section 26 of the Solicitors (Amendment) Act 1994. A bailout of the SMDF was never in the contemplation of the Oireachtas in passing Section 26. None of the provisions of Section 26 authorise the Council’s proposal. Indeed, special mention, in Section 26, had to be made of SMDF because it does not fit with an essential ruling idea in the Section; that solicitors be indemnified. An indemnity, legally, implies a right to indemnity, usually in contract. It is generally admitted that the members of SMDF have, and had, no right to indemnity from SMDF; its benefits were available only at the discretion of the directors of SMDF.

There is something more immediate to throw the Council’s proposal into questionable light; is the SMDF insolvent?

The Council asserts it is, but there are reasons to doubt this. The Council itself discloses that the regulations governing SMDF preclude the SMDF directors from making any payment resulting in insolvency. In addition, the SMDF itself has not claimed it is insolvent. This is not surprising because there could be malign consequences for the directors of SMDF if that were the case. The issue is not a minor one; much of the Council’s case is predicated on the un-foreseeability of the actions of the inevitable liquidator of SMDF. But, if there is no insolvency, there is not likely to be a liquidator. (For lawyers, “insolvent” has a precise meaning; that the entity is unable to pay its debts when they fall due.) A letter from SMDF to some practitioners dated 27th May 2011 is confirmation that SMDF is not insolvent; it says…

”It should be understood that the Fund has no immediate difficulties…”

If there is a problem in the SMDF, why do its members, including those on the Council of the Law Society, not solve their own private problem?

Even if the SMDF is not insolvent, it is possibly suggesting that it will not pay out on some at least of valid claims against solicitor members of the SMDF. Why do the members not top-up the “mutual fund” that is the SMDF, to meet those claims? On the figures provided by the SMDF, this would cost the members approximately €1000 per year. According to the Council of the Law Society, the prospects of them agreeing to this are “slim”, but they have not been tested.

Separately, the members of the SMDF could seek real professional indemnity insurance elsewhere. They will have to do this anyway at the end of the current year; the SMDF says it will not take on any business after this year; (we now see “business” here is a misnomer).

If SMDF members have poor claims histories they can apply to enter the “Assigned Risks Pool”, a device provided for in the Solicitors (Amendment) Act 1994. This allows solicitors with very poor claims records to continue in practise.

Consequently, there is no immediate problem. According to the SMDF, it has re-insured 100% of the risks for this year. In previous years it re-insured 90% of the risks. We do not, in the light of those facts, know why SMDF is taking the extreme step of ceasing “business” at the end of this year, but it is.

Here again, the Council of the Law Society has failed to properly inform the members as to what the problem is, and its implications.

The members of the Law Society should vote no to the Council’s proposal.

SMDF: Some Sums

The proponents of the Law Society Council’s proposal to bail-out SMDF Limited have made much of their estimate of the cost of same per solicitor.

They have settled on a figure of €200 per year, for 10 years. This figure is reached by making a series of suppositions- that claims liability will be no more than 16 million euro, that the number of solicitors in practice will stay the same over 10 years, that reinsurers will not repudiate some or all of the claims on them and that the Law Society has the power to compel members to make such a payment.

Each of them are questionable. All of them must turn out to be true to make the €200 figure valid.

Nevertheless, if we accepted, for the sake of argument, that €16m was a valid figure, we could use it to work out what it would cost if paid for only by SMDF members. As we know SMDF indemnifies (not insures) 22% of the profession, then we can say that the total amount which would require to be levied on only them to reach the same figure is only slightly less than €1000 per year.

If, as has been asserted by the Law Society Council, it would be a disaster for that €16 million over 10 years not to be raised, it seems strange that they have rejected the (reasonable) principle that those who will benefit most, SMDF members, should look to their own resources first.

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