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Truth?

One of us, attending the High court recently, witnessed the following instance of judicial self restraint.

Counsel: “That’s your opinion, judge”.

Judge: “Yes, it is.”

It was a moment of witless insolence. The judge had rejected Counsel’s submissions; Counsel disparaged the rejection by denigrating it as “opinion”.

He was wrong on many fronts.

(1) When you have lost, you have lost.

(2) When you are in a hole, stop digging.

(3) “Opinion” is all we have.

Plato confronted this issue; he opposed objective knowledge and opinion. Presumably this is the basis for the terms of Section 39 of the Broadcasting Act 2009.

Section 39 (1) (a) provides;

“Every broadcaster shall ensure that- “… all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views.”

This is nonsense.

All “news” is subjective; that is, a matter of, or expression of, opinion. It has been selected; it has been expressed in words or images, which have to be selected.

What is probably being addressed is “style” or, possibly, fairness. In short, a finding of breach should made by a literary critic or an artist, not by a judge.

That implies that the wrongful act of a broadcaster is not the promulgation of “his” opinion, but the suppression of alternative views. This is a difficult problem. There are views that ought not to be expressed, if not suppressed. We see that in the public burning of a Koran in the USA.

Domestically, what is in issue is this: on what possible moral basis does the Oireachtas claim the right to restrict the public expression of opinion?

We see another, less sub rosa instance of this in Section 16 (2) of the Legal Services Ombudsman Act 2009, which states;

“The Legal Services Ombudsman when giving evidence under this section shall not question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such policy.”

The Ombudsman’s evidence will be like a doughnut; it will have a lot missing.

PS. Judicial restraint is a requirement of the job. See HERE.

Finders, keepers?

I was on “The Last Word”, yesterday discussing Lotto tickets. This led to a reference to the passing of ownership of property to the finder of lost property.

I cited a year and a half as the period of time required to elapse before that transfer or vesting could take place. I meant to say “… a year and a day”.

As I write I have not found the source of that (recollected) period, but I am impressed by the discussion of this in Wikepedia, HERE.

It has this neat citation: “A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property”.

You have it all there, except the definitions of “mislaid” “lost” and “abandoned”, and for that you will need a lawyer.

The Statute of Limitations

The title to this post is a misnomer; it implies that there is one single location where the law on limitations of action is stated. This is not the case, but it is the colloquial method of referring to the issue.

The issue is this; at what point and in what circumstances will an alleged injured person (injured in body, property or reputation) be prevented from maintaining legal proceedings, for redress, due to delay in bringing the proceedings? All common law jurisdictions have a system for preventing the bringing of stale claims.

For lawyers, this is dangerous territory. If a lawyer makes a mistake about this issue (by failing to issue proceedings in time, say) it may, by definition, be impossible to rectify the mistake. The consequence of this error will be the loss to the plaintiff client of a chance to litigate the claim in court. The claim will be statute-barred. However, a new claim will then arise; the claim against the lawyer, for the error.

This is bad for the lawyer, but also for the plaintiff. Such a claim, for professional negligence, will not necessarily be as good as the original claim. It is, of course, undesirable from the point of view of the lawyer.

The current law in Ireland fixes different periods of time for the bringing of actions, depending on the nature of the claim (the legal basis for the claim). In addition, the law contains exceptions to the general rule or rules. (The principal exception is that for infants and “persons under a disability”.) Then there are the exceptions to the exceptions. Of course, there is the uncertainty as to who is a person “under a disability”.

The foregoing is enough to show why the territory is dangerous; it is strewn with “landmines” and it is easy to step on them. The Irish Law Reform Commission shares this opinion.

We see this in Griffin v Calally [2008] IEHC. Time was running in that case, the defendant said, having assured the plaintiff that it, the defendant, would not deny liability.

Cautious lawyers would, in these circumstances, adopt the attitude of Nathan Bedford Forrest; “… git there fust with the most men”.

This is in contradiction to current notions of “mediation” and “conciliation”. They are fine ideas, but in their proper place; postponed until after the issue of proceedings.

For Whom the Bell Tolls?

There is quiet excitement in our household. Mr. KenMore has responded to the suggestion (HERE) that some easy legal reforms be introduced, with a silent determination to do exactly that. (OK, some less sophisticated persons deny this; they admit the silence but query the determination. I do not).

In such a spirit, can Judge Kelly’s remarks about the lack of a mechanism to recover excess tolls (if such they be) charged on the M1 motorway, fail to provoke the attentions of our benefactor Mr. KenMore?

Once again, the remedy for such social ills is to hand; introduce forms of proceedings in court called Multi-Party Actions. These are commonly called “class actions”. They permit a plaintiff to commence proceedings against a defendant, not just for his/her own benefit, but for the benefit of a class of persons, the plaintiff being just one.

This could be done relatively easily and quickly. The missing ingredient is, and was, political will. Nothing else is missing.

Mr. KenMore

Dear Mr. KenMore,

You will shortly be Taoiseach. I know that my voice is not foreign to you. I have an accent (metaphorically speaking) like Dermot Gleeson SC. That should alarm you but I know it will not. This is not because you are schizophrenic (which you are), but because, in your field, you need to keep talking and the explication of process uses a lot of words. Lawyers can elaborate process and consequently generate words. Like an oasis in the desert they seem to offer life (political life, in your case) allowing you to hold the floor, to occupy space of every kind, but principally space in the minds of others.

There is no guarantee that this is of value of the listeners. Perhaps you disregard this, at least for a time. That is a mistake. Before he was chairman of Allied Irish Banks Dermot Gleeson SC was legal advisor to Michael Noonan, who was brought to the point where he said he would eschew legal advice if he had his life (political, again) to live over. Maybe he will (eschew legal advice AND live his [political] life over again).

The mere occupation of space is a miserable ambition. Look at the outgoing government.

This letter is to ask you to repudiate what is graphically currently known as “stuff”. Stuff is process; it is the surface. It is the shiny trivia of life.

I propose that you look instead to principles not process. I know nothing of the principles of banking beyond what commonsense might suggest to me. I do, however, know something of what is fair and I write this letter to suggest that you commit to fairness in this election. Fixing a bank will not secure fairness, but fairness, in principle, is a requirement to secure good banking.

Here are some easy reforms to bring fairness to the people of Ireland;

A) Restore the limitation period for personal injury plaintiffs from two to three years;

B) Repeal the Personal Injuries Assessment Board Act of 2003;

C) Repeal the provisions of S. 10 of the Courts and Civil Liability Act 2004;

Michael McDowell SC wanted to reduce the limitation period for personal injury plaintiffs from three years to one year. Arguably three years is unfair; in matters of contract the period is six years, but I am not urging that you decide on that; just that you bring it back to three years. For many injured people it is no difficulty to take action within three years of their being injured, but there are many exceptions. On a question such as this, every effort should be made to ensure that nobody is shut out of justice. To close the door of the Four Courts (yes, it happened, literally) to injured plaintiffs is to favour reckless free riders over innocent people who have no social organization to represent them.

REFORM 1: Why should the limitation period be three years rather than two?

ANSWER: A limitation period exists to protect society from old stale claims. If a claim is old and stale a defendant may be unable to rebut the evidence of the plaintiff due simply to the passage of time. If matters had been addressed in speedy fashion a defendant might be able, by evidence, to show that it is not liable for the plaintiff’s injury or that the plaintiff was contributorily negligent to a high degree. However, this is hypothetical. Most cases of personal injury (car crashes etc.) are immediately known to a wide circle of people, including the “defendant”. In those circumstances the plaintiff’s delay is irrelevant to the defendant’s ability to defend itself.

On the other hand, a plaintiff needs time to start his/her proceedings. There are many obstacles to a plaintiff in this regard. The injury incapacitates the plaintiff; he or she cannot get the time, energy or opportunity to instruct a solicitor. The plaintiff may have money problems. The plaintiff, compared to the defendant, will often know less of the injurious event than the defendant. The plaintiff needs time to gather the evidence.

This point is seen in the extreme in cases of medical negligence. The courts have opined that it is professional misconduct for a lawyer to issue proceedings in medical negligence cases without the back-up of an expert’s report confirming the negligence. How long does it take to get that? It can only be sought after the medical records have been received from the putative defendant. Thus, for such a plaintiff, gathering the evidence requires force of character; the recovery of medical records; the choice of expert to advise on the issues and the receipt of an opinion written, often, by a busy professional to a very high standard. None of these things can happen quickly.

The choice should not be between two years and three years, but between three years and some longer period.

REFORM 2: Why should the Personal Injuries Assessment Board Act 2003 be repealed?

ANSWER: There are several reasons;

a) PIAB favours defendants; the system is mandatory for plaintiffs and voluntary for defendants;

b) PIAB generates delay for a plaintiff in the resolution of his/her problems;

c) PIAB facilitates the decay or dispersal of evidence exclusively in circumstances that favour the defendant and hamper the plaintiff.

d) PIAB is becoming irrelevant save to the extent of the effects referred to at a), b) and c) above.

REFORM 3: Why should the provisions of S. 10 of the Courts and Civil Liability Act 2004 be repealed?

ANSWER: It hinders the issuing of proceedings for personal injury in timely fashion. Compliance with S. 10 requires the injured plaintiff to gather substantial quantities of evidence and instruct lawyers relating to same, before issuing proceedings. A Personal Injury Summons is a substantial lengthy document and not readily compiled at speed. In lawyers’ language, could anything be more calculated to favour defendants compared to (personal injury) plaintiffs? For upwards of fifty years before 2004, court rules permitted the quick issuing of a Plenary Summons for a personal injury claim. Thereafter, the plaintiff had to serve a Statement of Claim with proper details of the claim pleaded. However, any delay in so doing was amenable to control by the court; it was not subject to the severest sanction – the expiration of the statute of limitation period. It is that sanction that now hovers over every personal injury plaintiff and is brought closer by the provisions of S. 10.

Sub-Contractors, Construction disputes and arbitration

Contract Limit spraypainted on the ground

We have variously done the following;

1. Warned Builders of the difficulties clients may present when you seek payment.

2. Warned Builders of the problems inherent in the practice of the client holding “retention money” as a security for the builder fixing any problems arising later.

3. Warned of the difficulties flowing from undertaking building work without a written contract;

4. The problems for clients when builders “buy” a contract and re-negotiate it to their advantage later, after they have started work.

5. Warned again of the difficulties flowing from undertaking building work without a written contract;

Now we write about the steps you must take when you don’t get paid. Most building or engineering contracts will have an Arbitration clause in some form or other. If so, it will be mandatory that the dispute be taken to arbitration. Get the help of a solicitor or a “claims consultant” to draft the papers for the arbitration. Depending on the nature of the dispute it might take a long time to produce workable drafts but it is essential work.

When the identity of the arbitrator is agreed he/she can give directions as to how the parties should proceed. It is wise for claimants to have anticipated the production of workable drafts.

The conduct of an arbitration by the claimant or the respondent is like the conduct of litigation; it needs the services of a litigator.

If a respondent is still trading (not in liquidation) it is open to the claimant to take the claim to arbitration with some prospect of making a recovery.

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Land(scape)

In Ireland we are pre-occupied with land; few are immune to its pull. Our agricultural background explains this but it is not the full explanation. Wrapped up with the experience of land is the view of land. As a society revealed to have great failings, one is the astonishing lack of regard to the history of Ireland’s changing appearance since the end of the last ice age.

Our trees have gone. The first people to arrive here would have found an impenetrable forest of trees and bush. Now, thanks to the good fortune of a style of marking of field boundaries by trees and bushes, we retain a tenuous link with that primeval forest in those fields. Nonetheless, nobody would now consciously feel a hankering for the landscape of post-glacial Ireland. I say this against the possibility that the forest was not to be found everywhere and that some early uplands remain, the spell of which draws some hardy souls to look at them; a residual terrain analogous to Arctic Char.

To know what we did, in fact, do, I suggest you imagine a scene; a field of sugar beet. The field is three acres in extent and must be cared for. It must be cared for because its crop is not a choice on a whim and the sugar potential determines its value and the value is conditional on the care lavished on it. In short, its plant rivals must be suppressed and thrown away by careful and methodical weeding.

We are lucky in having people talented in gardening; people who actually like weeding their gardens. But even those admirable people would quail as they start on the first row of sugar beet in a field of three acres. The first row is in fact the first two rows; one starts, on one’s knees, in what is revealed to be a tunnel of greenery, between rows, weeding first to the left, then to the right. You have wrapped your knees in sacking to protect you, and soon, clods of soil weigh you down as you move forward. Your hands quickly have green stains from the juices of uprooted weeds, spreading into every crack and crevice from your broken fingernails to your wrists.

This is a scene of practical farming. The practicalities of life have an unseen and powerful, often determining, effect on history. Deep in the tunnels of beet we may not be able to see our own field in its landscape any more.

Possibly we never saw it because some of us cannot see such things. Landscape exists in the human mind. It exists separate to the management of land; we speak of “a lunar landscape”, never having even conceived of such a thing until Galileo looked at the mountains of the Moon in 1609. With photographs we can see what Neil Armstrong saw, but in truth, we knew it, from telescopes and imagination before he, or we, saw it.

The management of land is important; Egyptian geometry developed to re-define land boundaries after the annual flooding of the Nile. But it may not be the most important part of our knowledge of land. Before we act, we must imagine. Before lawyers draw up contracts and title deeds, before builders build hotels we must see what is in our mind and what should be in our mind is a view of society.

To have such a view is a thing of great value, but a thing difficult to grasp or hold. Generations of philosophers have tried to tell us about society, each, as it were, describing an elephant from a particular point of view but the best place for that elephant is in our mind.

Consider New York. It’s very big and very old. We can go there and learn nothing. (This writer went North to Doncaster and spent fifteen minutes looking at the late evening skyline of that place from its brick-built railway station, before leaving on the next train South; was I in Doncaster?). Or, we can learn something ineffable about New York from a book. We know that tourists miss a lot about the places they visit. Try as they might, they are often condemned to an experience equivalent to living in an airport hotel. If they could live with the inhabitants for a while, we know the understanding gained would be incomparable to that.

We cannot, all of us, live with a New Yorker for a while; and, likewise, every New Yorker cannot live with us, but we can tell the truth of our lives, if we but see that truth, and convey it to the people of New York. Because they have done it for us, or rather, one of them has.

In 1955 J. D. Salinger’s book, “Raise High the Roof Beam, Carpenters” was published. Its protagonist, Buddy Glass, has gone to his brother’s 1942 wedding. His brother, Seymour Glass, has jilted his bride, failing to turn up at the wedding. We know something of the Glass family; they are, each of them, geniuses; but emotionally fragile. Seymour, because he loves his bride-to-be so much, flinches from marriage and the inescapable pain of life he feels lies there – for his bride.

The bride and the wedding guests leave the house and Buddy finds himself sharing a car on a journey going up town in Manhattan. Buddy is, it appears, the only guest from the groom’s side and the occupants, knowing none of those absent persons carry on conversation about Seymour in properly critical, but mistaken, terms.

Suffice to say that the journey is delineated to perfection. That imaginary Manhattan of 1942 will live forever and will defeat all other versions of Manhattan from any time. We are taken to know of the streetscape; we meet a traffic jam for instance. Nonetheless, we are in a landscape.

A landscape can show hills or flat country. It can show huge skies or lowering clouds. It can show a forest or a plain with clumps of trees and perhaps a few scattered white clouds.

We have attached meanings to these images. Who could not have been struck by the recent vision of Ireland covered in snow and who could fail to see how it mirrored our political condition?

We need to treasure a hunger for landscape, not a hunger for land.

Inflation

public works

Unless we are practicing politicians (I mean of the Fianna Fail ilk) we should aspire to speak clearly and mean what we say.

“Inflation” is a term applicable to balloons and economies; we should remember that, when as here, the issue is economic inflation.

One of our clients holds the view that economic inflation is the mechanism by which certain social costs are transferred to the shoulders of old age pensioners. (Central government would, presumably, profess to avert such an outcome, because if it did not it would, we think, be removed from office, other things being equal). Our client might have expanded the opinion to include all persons on fixed and relatively low incomes.

The client’s view carries an implicit assertion; such a mechanism can be an engineered outcome. In short, the Government may desire exactly what it professes to decry. Or not.

We cannot afford to expend much effort to find out motivations; we should act on perceived outcomes.

Consider the “new” Public Works Contracts HERE. They were introduced in 2007 and are obligatory for use in State building projects.

They promptly came under criticism when introduced. (Who formulated them? We, here, think we know, but that is irrelevant; they were introduced on instruction. The Government gave the instruction).

See HERE for an extended treatise on what is wrong and unfair with the contracts.

There is nothing inherently evil about the Irish construction industry that the Government should seek to impose unfair costs in it. Those costs will fall inevitably on workers and their families.

It is beyond time to urgently revoke the provisions that saddle the industry with these contracts.

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Ticky-Tacky boxes?

Education is not the focus of this blog. Prior reference to the Department of Education is made as an aside.

Construction and the construction industry is, however, a focus. It is instructive to get a judgment on anything, instead of the usual bureaucratic fog of words. So check out this article from “Construction Manager”

“Ireland: Setting benchmark costs
From a UK perspective, school building costs in Ireland are almost shockingly low. In February 2006, the Department of Education set a maximum build cost for primary and secondary schools of €1,230/m2 (£1,095), including VAT at 13.5%, but excluding site preparation and groundworks, professional fees and contractors prelims.
In November 2009, the DoE dropped the building cost limit to just €990m2 (£880). In fact, recent tenders have been coming in below that: according to Galway-based contractor JSL, the going rate for the building element is €600-€750/m2.
But the specifications expected in the two countries really aren’t comparable. Classroom sizes are smaller in Irish schools, there is no catering provision or dining halls, while floor, wall, ceiling and door finishes are all basic. Steve McGee FCIOB, JSL’s director of construction, says that it’s like visiting a “two-star hotel” compared to four stars in the UK.
Secondary schools are all individually designed, but primaries are based on the DoE’s “generic repeat design”: four variations each on 8, 12 and 16-classroom schools.
The DoE has also built “rapid delivery” primary and secondary schools using prefabricated timber SIPs or concrete panels in just 20 weeks. And it recently tendered two Passivhaus primaries, although McGee says the DoE was disappointed with the cost: JSL’s unsuccessful bid was €1,600/m2.
Ireland’s strict cost limits no doubt galvanised the market and put pressure on suppliers and product manufacturers. Unified procurement also meant no variation in procedures around the country, so learning from one project could be taken to the next. But the market struggled with the Passivhaus project.”

Expeditions

My schooldays, on reflection, were remarkable for an omission; that the schools I attended never alluded, so far as my memory serves, to alternative sources of knowledge. The obvious one was the world of books, accessible in the Dublin city public library system.

What lay behind that was the malign power of the Department of Education. “Education” was the process of adhering to the school curriculum laid down by the Department. This was a theft; theft of the word “education”. There were some things to be learned from following the curriculum, but many more to be found elsewhere.

To say what is an education is beyond this post, but to know something (indeed, a great deal) about the national legal system seems to this writer to be a required component of an education. Not that we should be able to, all of us, discourse on what is hearsay and what is not, or drive a High court judge to distraction with rambling cross-examination of witnesses as we run our very own constitutional challenge to some piece of legislation (not least because many lawyers do not know what hearsay is or is not, and rambling cross-examinations are standard).

No, indeed. We should, however, know what it would be like if we do find ourselves as a Plaintiff or a Defendant in litigation.

Leaving aside the fact that “litigation” covers a lot, there is a source of knowledge that might reflect the experience of a lawsuit. The source is Xenophon’s “Anabasis”, written 2,400 years ago.

It has no litigation in it. It is the story of what happened to a group of Greek mercenaries whose services were engaged by Cyrus the Younger in 401 BC. Ostensibly Cyrus was going to launch a military attack on Tissapharnes of Ionia. The Greeks were to be part of this attack. In fact, Cyrus intended to overthrow his elder brother Artaxerxes II , the king of Persia. “Anabasis” is also known as “The Persian Expedition” or “The March Up Country”.

So, when you set out on an expedition or start the march up country, it is very undesirable to be confused or ignorant of the purposes of the expedition, or march, or the country into which you are about to go, as Xenephon’s story shows.

Could the connection with litigation be clearer?

Xenophon knew in detail what he was writing about; he joined the Greek contingent and consequently found with his fellow Greeks, that, rather than fighting Tissapharnes’ forces, they were ranged against the superpower of the age; the Persian army itself. Nominally this was no equality of arms, but the Greek mercenaries were no pushover. As Cyrus knew, they had the benefit of sophisticated tactics and considerable experience in war.

Still, good advice is valuable as you start into war (litigation is not unlike war). So Xenophon sought advice from his friend, Socrates, (yes, the philosopher). Socrates recommended that Xenophon consult the oracle at Delphi. There are some questions only a god can answer.

In litigation, it is best to know what those questions are, so that, when the question is answered we can take the measure of the person giving the answer. (People who answer have, often, asked the question themselves. To ask those questions is also revelatory.

In the events that happened, it must have been the case that Xenophon adapted his speech to the formality that speaking to an august Oracle might induce. We can infer this because, on his return, Socrates berated him for asking the wrong question of the Oracle. Instead of seeking to learn what the future might hold, he asked to which god he should pray to secure his objectives in the venture with Cyrus. (He was clear in his mind what his objectives were; to make his fame and fortune. He was, after all, a mercenary).

In modern parlance this can be expressed as; rubbish in – rubbish out.

Cyrus eventually told the Greek soldiers the truth; they were, with his Persian troops, to attack the King’s vast army. By that time they were deep in Persian territory. That Cyrus was in the immediate family of the King was no longer a security; it was, in fact, a great offence. Regime change was on the agenda and they were the striking force in a palace coup.

They declined to proceed.

This was not based on a principle; it was based on an assessment of what was likely to happen to them if they clashed with the King. Consequently it was open to change by persuasion, and was changed.

Mature reflection revealed that the prospects of fortune were now enhanced. The stakes were higher and consequently the assessment of risk was warped.

That risk transpired in the death of Cyrus at the first battle with the Persian army.

Now, success was impossible; regime change was off the agenda. Nothing was left but to try to reduce the size of any loss. The King’s generals offered talks to this end. The Greek generals took them up on the offer. In modern parlance this would be expressed, possibly, as peace talks or even as mediation.

The Greek negotiators met the Persians in the Persian camp where they were seized and killed by the King. The reason was simple; the Greek generals were the negotiators. The temptation and opportunity to kill the Greek leadership was too much for the King and he took it. The Greeks responded by producing a new crop of leaders, including Xenophon.

They struck off northwards into mountainous territory unfavourable to the large army possessed by the King. The Black Sea lay to the north and offered the possibility of an escape to Greece by water. Again, this did not happen as planned or hoped, but the southern shore of the Black sea, when reached, provided a guide to the Greeks in their march west to their home and it was by this route and manner they got home.

As a metaphor for litigation, clearly Cyrus was the client. Not unusually for clients he failed to disclose very important information. He also disabled the Greeks’ judgment in military matters by weighting the balance when it came to decide whether to plunge into Mesopotamia, not that the Greeks were not also at fault. It’s easy to dream of riches, or even possess them, when theft and fraud are on the agenda.

Again, Cyrus and his project were not deserving of the allegiance of the Greeks. Only if he were successful would they be assured of full payment. This was a “no win; no fee” arrangement with a vengeance.

For the Greek generals the price was very high; they paid with their lives. What they regarded as a matter of business, the King took very personally. Alternatively, they lacked experience of the “real politik” required to hold a kingdom together; a King needs to think of the next challenge and deter that challenge now, before it appears. Artaxerxes II needed to ensure there would be no escape for anyone who challenged him. He had to destroy the army of Cyrus and all its soldiers. That the Greeks would have no qualms about working for him was not a consideration. They and their talents were not indispensable to him.

Mediation and settlement were not options. It was a fight to the death and there were no restraints. As usual, there was no equality of arms and, in a sense, the issues were trivial; who, even then, besides themselves, cared whether Artaxerxes II or his brother Cyrus was the king of Persia?

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