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Neutered Persian cats

Lawyers discuss litigious business very often on “without prejudice” terms. By this they mean to have the contents of the conversation confidential between the parties. This applies particularly to the exclusion of a court. That is, no party may unilaterally disclose to the court what was discussed.

These conversations can have odd aspects; one lawyer (A) may wish to speak “without prejudice” and the other lawyer (B) may not share that desire, for the things that he/she has to say. B may speak expressly on those terms.

Are the banal, uncontroversial terms of B not to be disclosed to a court?

Irish judges, particularly in the lower courts, are not receptive to submissions that some or all elements of “without prejudice” discussions may be disclosed to the court.

In Oceanbulk Shipping & Trading SA v TMT Asia Limited and others [2010] UKSC 44 the UK Supreme Court examined a particular basis on which evidence of “without prejudice” discussions could be admitted. (To aid in the interpretation of an agreement between the parties).

The Court, in its judgment, referred to Investors Compensation Scheme v. West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98; [1998] 1 WLR 896, also a case turning on document interpretation. Here is a sample from it;

“Secondly, the parenthesis seemed very strange against the background of the law. If it was exhaustive, why was “sounding in rescission for undue influence” singled out? What about rescission on other grounds, or claims for breach of statutory or common law duty? It was rather like providing in a lease of a flat that the tenant should not keep “any pets (whether neutered Persian cats or otherwise).” Something seemed to have gone wrong.”

And again:

“The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”

By Irish standards this last point is hard to take. After all, we have the leader of our Executive addicted to the phrase, “…going forward”. His predecessor’s mode of expression was sufficiently eccentric, closed and personal as to be representative of a type; Bertiespeak.

Our politicians fall, consistently, into solecisms. (Our Minister for Justice etc. tells us persistently that he will appraise his ministerial colleagues; would that he did, and let us honestly know the outcome).

To cleave to the standards of the UK courts would lead to apoplexy. No, no; that’s too much.

That said, we should fight against a complete absence of standards.

Save the word “presently”; it does not mean “currently”.

Save the word “refute”; it does not mean “reject”.

Save the word “pleaded”; there is no word “pled”.

…usque ad coelum et ad inferos

Solicitors may or may not be from Hell, but there will be occasions when, to Hell they must go.

We see this in Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010] UKSC 35 (28 July 2010)

The appellant, had drilled an oil well sideways under the respondent’s land. It had been found, at first instance, that this was a trespass.

The Supreme Court remarked;

“It has been observed that anything that is drilled below a depth of about 8.7 miles or 14 kilometres would be crushed by the earth’s pressure of 50,000 pounds per square inch and vaporised by a temperature of 1,000 degrees Fahrenheit:…”

This, the Court found, was no bar to the correctness of the finding that drilling 3 wells at respective depths of 2,900, 2,800 and 950 feet below the respondent’s land was a trespass.

Fundamental Laws

Sean Fitzpatrick’s business model for Anglo Irish Bank plc (when it was revealed to the public) had a familiar ring about it.

It expressed a belief in a perpetual motion device. According to Wikipedia, such devices contravene the First Law of Thermodynamics or the Second Law of Thermodynamics or both.

As Wikipedia expresses it;

“Despite the fact that successful perpetual motion devices are physically impossible in terms of our current understanding of the laws of physics, the pursuit of perpetual motion remains popular.”

This is, possibly, not correct. We now see that its popularity is at 18%.

That does not seem a working definition of popular.

Access to Justice?

Maybe there’s a necessary correlation between shocking bumbling incompetence (as in the case of sometime EU Commissioner Charlie McCreevy) and a prediliction to patronise.

Whatever the case, we see it in the EU Commission plan to “give” a class-action procedural right to EU citizens. Mr. Almunia is in charge of this. He says, confusingly, that;

“…only state bodies and certified non-profit organisations would be allowed to bring actions, and that any damages awarded would go entirely to victims and not to the representative entity“

After an interview with Mr. Almunia the Financial Times wrote:

“Another thorny issue is whether to facilitate more private damages actions by the “victims” of competition offences, notably those who suffer from the higher prices imposed by cartels. Mr Almunia’s predecessor, Neelie Kroes, argued that such group actions could be a useful deterrent to illegal price-fixing. But corporate lobbyists warned about the dangers of introducing a US-style “class action” culture and Ms Kroes’ legislative proposals were stillborn.”

So, what’s it to be? A “state body” of the nanny state (headed by Patrick Neary?) or a right to personally litigate wrongdoing by corporate giants?

Of course, this begs the question; why has Ireland not already introduced the right to maintain class actions?

The answer is; they are opposed at a high level.

See our earlier post on the issue HERE.

Digital Rights Ireland Ltd: Letter to Ministers for Communications and Enterprise

The letter below has been sent to the Ministers for Communication and Enterprise, Trade and Innovation on behalf of our clients Digital Rights Ireland Ltd.

Dear Minister,

We write on behalf of our client, Digital Rights Ireland Ltd.

We note that, following the judgement in EMI Ltd and Ors -v- UPC, media reports have suggested that you, or your officials, intend to hold discussions with representatives of both the unsuccessful plaintiffs and Internet Service Providers.

We request, on behalf of our clients, that they be included in these discussions.

As Judge Charlton acknowledged in his EMI -v- UPC judgement, the lack of alternative viewpoints led to him ordering an injunction which had no legal basis in the related, earlier, case of EMI and Ors -v- Eircom.

Our client has, as its purpose, the promotion of defending civil and human rights particularly those arising in the context of modern communication technologies.

Digital Rights Ireland Ltd can call on experience and expertise at a national, European and world level in the areas of privacy and human rights, as well as in telecommunications and information technology. Its locus standi in the area of citizens’ rights to privacy and communications has been acknowledged by the High Court.

Our client believes that any discussions regarding legislative change should involve the widest range of interests being represented, with the aim of ensuring that any legislation drafted is done so with the benefit of all available information.

Yours faithfully,

etc

Vendor says no

For solicitors, the statement, in Replies to Conveyancing Requisitions, “Vendor says no” is common and fateful. It lay behind the difficulties inflicted on the purchasers of landlocked premises in Doran & Anor v Delaney & Ors (No. 2) [1998] IEHC 166; [1999] 1 IR 303; [1999] 1 ILRM 225 (25th November, 1998).

It invites consideration of the need for tone in Requisitions or Rejoinders; something like; “So?” or “Is that so?”

Students of history might recall the phrase “… to lie like a Bulletin…”, in currency in France during Napoleon’s reign. It is not just in Bulletins that lies are propagated.

Not that Vendors commonly lie; to Purchasers or their solicitors or Vendors’ solicitors. No, indeed, but a sceptical tone is appropriate, nonetheless.

Not that a suitable tone would have availed the Defendant solicitor in Kelleher & Anor -v- O’Connor practicing as Don O’Connor & Company [2010] IEHC

Here, the Vendor’s reply to a request for evidence of registration as a restaurant was; “None available”. In fact the premises was registered. The solicitor’s failure to procure a correct reply was not a cause of the Plaintiffs’ difficulties, as the High Court found; it was in his failure to tell the Plaintiffs to make their own investigations of the premises and its suitability for use as a restaurant that he was failing.

For the legal profession, there is good news in this. It establishes that a solicitor should be paid, by a client, not for accepting instructions, but for giving advice.

Where the property market is flat, as now, the correct advice must be; wait.

Where did I leave my Invoice generator?

NAMA, once again

There is general agreement that Ireland and interested persons should know what the cost of the Bank Bailout is going to be.

The Government reputedly delegated that task to the Central Bank and the Financial Regulator. The Taoiseach told the Dail on 29th September 2010, (in relation to the portion attributable to Anglo Irish Bank):

“That figure is not yet available to us from the Financial Regulator. It is being conducted at the moment and work is being finalised on it. As soon as the figure is communicated to us it will be provided.”

Remarkably, the Central Bank and the Financial Regulator were in their turn, dependant on NAMA for information. The Regulator has reportedly said;

“Its estimate was based on advice from the National Asset Management Agency on how much it will pay Anglo Irish Bank for the loans it is taking on.”

Now, given the exercise, this missed the point. NAMA is about the price of loans, not the cost of the Bailout. We can only know the cost of the Bailout if we know the value of the NAMA loans, (not the price of the loans).

NAMA’s purpose is to defer the fixing of the valuation of the loans as long as possible. It claims that it is paying prices reflecting “long term economic value”. This is an admission, of course, that the loans are not currently worth NAMA’s estimate.

Long after the Government has left office we will learn the real value of NAMA’s “assets”. So, too, will the Central Bank and the Financial Regulator. Only then will the cost of the Bank Bailout be known.

The Government devised NAMA. It has designated NAMA as exempt from Freedom of Information legislation. When this writer asked for information on the agreement between the Government and the Commission of the EU on the NAMA loan pricing mechanisms, the information was refused.

Everything of relevance in the possession of NAMA is a secret.

Some things are not secret. Calculatedly, NAMA is paying prices for bank loans which are in excess of current value.

According to the Minister for Finance, speaking on RTE on the night of 30th September 2010, NAMA has gone into the banks and revealed the truth of their finances to the Government. That, if we believe him, implies that NAMA and the Government know the value of the NAMA loans. (Not just the price NAMA has paid or will pay). That is the implication because the context is the focus on the cost of the Bailout, not the nominal current price.

So, the real repository of information on the cost of the bank Bailout is the Government, through its proxy, NAMA.

Why bother with the Central Bank and the Financial Regulator to deliver the number?

Woof, Woof

Ireland has strange Regulators, as we have learned. For example, what is the Irish Data Protection Commissioner doing about the Google “Street View” scandal?

The scandal involved the deliberate collection, by Google, of wi-fi data, through its Street View vehicles. Google Street View is part of Google Maps and Google Earth. It uses adapted vehicles (mostly cars) to travel through public locations in at least thirty countries in the world. The vehicles have cameras to record a 360 degree view of each location.

I saw one in Dublin in August.

While it was using the vehicles as a camera platform, Google also used them to secretly collect data passing over wireless networks. That data would be all, or part, of emails, passwords, videos, audio files, documents and network names.

Seemingly, German privacy authorities discovered this Google secret early in 2010 and launched an investigation. A proper investigation would require that the evidence be preserved, would it not? Here’s what Google put up on its website:

“On Friday May 14 the Irish Data Protection Authority asked us to delete the payload data we collected in error in Ireland. We can confirm that all data identified as being from Ireland was deleted over the weekend in the presence of an independent third party. We are reaching out to Data Protection Authorities in the other relevant countries about how to dispose of the remaining data as quickly as possible.”

This was more than the Data Protection Commissioner told us. In fact he told us nothing of the issue. HERE‘s his website.

Google’s reference to the data being “…collected in error…” was disingenuous. The data was collected calculatedly.

Bank robbery is irresistible if the only sanction is that you have to give the money back if you are caught.

Did we actually get our money back?

Injuries by dogs

1. They have dog trouble in the UK. See it HERE.

2. For once our Government, [which, like every other element of the State, is, rest assured, amongst the best in the world], is ahead of the UK government. Unlike the UK there is, here in Ireland, a two tier level of strict liability for damage caused by dog attack.

3. Here, under Section 21 of the Control of Dogs Act 1986 an owner of a dog is strictly liable for damage sustained by a person in a dog attack and for any injury done by a dog to livestock.

4. The effect of this is make the owner [which may mean the “occupier” in some circumstances] liable, without proof of negligence, for injury suffered by a person in a dog attack.

5. Good news for owners of livestock; they do not have to prove ATTACK by the miscreant dog, just injury to the livestock consequent on dog “doings”.

Goalposts

In January 2010 in Case C-456/08 the European Court of Justice found that Order 84A of the Rules of the Superior Courts was not in accordance with Article 1(1) of Directive 89/665.

The Commission had taken proceedings against Ireland over a failure by the National Roads Authority and the terms of Order 84A of the RSC.

Ireland lost on both points. The ECJ condemned Order 84A on the grounds it;

“..gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods for bringing an action are to be determined..”

The ECJ judgment recites a plea by Ireland that:-

“.. to date, no Irish court has dismissed, as being out of time, any action challenging a decision of a contracting authority made in the course of a public contract award procedure which was brought within the three-month limitation period but not at the earliest opportunity”.

Factually, this seems wrong, or economical with the facts.

In Danninger v Bus Atha Cliath and Deepdrill Developments Ltd. [2007] IEHC, the court recited the following:-

“Leave was sought to commence judicial review proceedings on 23rd May, 2006, approximately six weeks after the formal notification of the of the award of the contract to the notice party.”

– and then ruled on a plea that the Applicant was late, in these terms:-

“I would not hold that time began to run as and from the 3rd January, 2006, when the tender documents were received, because I would regard it as reasonable that legal advice might be obtained in relation thereto. One month seems to me to be more than adequate time in which to seek such advice. Given that there is both an opportunity and, pursuant to O. 84A an obligation, to bring proceedings “at the earliest opportunity”, I would hold that an interim application should have been made shortly thereafter. That interim application would have challenged clause 4.14 of the tender conditions and should have sought interlocutory relief.”

In Danninger the applicant applied for Judicial Review six weeks after losing the tender application process. That was within the three months time limit for applications. The court ruled that time commenced against the applicant not from the ending of the tender process but from the time the applicant knew, or ought to have known, of the grounds upon which it ultimately made its application.

That was a date (as found, by estimate, by the court) to be 3rd February 2006.

That meant that time expired on 3rd May 2006. Thus, 23rd May 2006 the date of the application to court, was twenty days too late. The court however, did not rule that the time had expired for that reason; it ruled it had expired on 3rd February 2006 because the applicant had not applied “at the earliest opportunity”.

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