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Hindsight again, Minister?

The musings by the Director of Public Prosecutions as reported HERE warrant a book written on them. He has pointed to the need for, and social value of whistleblowers.

This being a blog, a posting will have to suffice.

His musings were followed by a proposal from the Minister for Justice, the terms of which are currently obscure.

Assuming that there is no co-ordination between the Minister for Justice and the DPP, and assuming them to be decent, well-meaning office holders, why do these pronouncements appear as if the speaker was the first to address the problem?

The Labour Party tabled a Whistleblower’s Bill and it went nowhere. It was within the power of the Minister’s party to drive it, or to kill it. It was killed.

Transparency International has compiled a review of the lack of protection for whistleblowers in Ireland. See it HERE.

Transparency International recommend one single piece of legislation to protect (and promote) whistleblowing. As they point out, the UK did exactly that in 1998 with the Public Interest Disclosure Act. See it HERE
.
Of particular interest to this blog (we are personal injury lawyers, albeit multi-tasking) are the provisions of Section 27 of the Safety Health and Welfare at Work Act 2005. See it HERE.

Now read the obligations imposed on employees HERE by Section 13 (h) of the Safety Health and Safety at Work Act 2005.

The DPP thinks that recourse to the Employment Appeals Tribunal is cold comfort for a dismissed employee whistleblower.

Surely the Government knew this in 2005, if the DPP can know it now?

Some Questions for Your Country Your Call

*This article was first published in the Irish Times on April 23rd 2010*

The Your Country, Your Call competition has a week to go before submissions close and the judges start to consider which of them will be awarded €100,000. The stated aim of the competition is far reaching and radical – nothing less than to “create prosperity and jobs at an entirely different level from what currently exists”, as Pádraig McKeon, Drury Communications managing director and Your Country steering group member, has said.

It has been supported by many of the pillars of the establishment. However, it is surprising given the scope of this ambition – and access to specialist knowledge – that there are still plenty of questions unanswered since the competition was launched.

Firstly, is the competition equitable to participants?

Under section 7.1 of the terms and conditions of the competition, every participant grants a “worldwide, perpetual, irrevocable, transferable, unencumbered, royalty-free, fully paid-up, non-exclusive licence” to An Smaoineamh Mór, the limited liability company running the competition.

For the winners, the consequences are total loss of ownership of their idea. Section 7.2 says that the winner (or winners) “shall irrevocably transfer, convey and assign to the promoter (or such party that the promoter may direct) all right, title and interest in and to the winning proposal and all intellectual property rights therein.”

After they pocket their €100,000, they lose all interest in an idea which will, by the organisers’ own description, “create prosperity and jobs” to an unprecedented degree. That’s a return on €100,000 of which any private venture capital company would be proud. We can imagine the winners might, as that prosperity grows in An Smaoineamh Mór Ltd’s bank account, come to feel rather like the creators of early comic book characters: cut out of the fortunes their imaginations summoned into being.

Secondly, where is all the money for this competition coming from and why?

At first glance this question seems to have been answered quite clearly. McKeon told the Value Ireland blog on March 6th: “A cash fund of just under €2 million has been accumulated via donations from 13 parties (companies and individuals) which has been lodged in the accounts of the company, An Smaoineamh Mór . . . the promoters formally presented the project to Government late last summer and asked for support in three ways – a contribution to the fund referred above; a request that the competition would have access if it needed it to the services of the State enterprise agencies in the evaluation process (if such help were required); and a commitment that Government would engage with the process of developing the two winning proposals, particularly with reference to any legislative issues that might need to be addressed. It agreed to all three requests – it will be contributing 15 per cent of the fund.”

But on March 23rd, in response to a parliamentary question from Ciarán Lynch who asked the then minister for enterprise Mary Coughlan whether she had “given or [had] undertaken to give public money” to the project, she told the Dáil: “My department is currently examining a proposal to provide funding of up to €300,000 to the Your Country, Your Call initiative from within existing resources. No funding has yet been paid by my department in respect of the initiative.” And she went on to say that “if funding is made available” she would want to ensure that it was accounted for properly.

Which is odd. Because it shows (a) the minister hadn’t made a decision to give An Smaoineamh Mór any money and (b) that the amount of money she was considering paying is any figure “up to” €300,000. It also raises questions as to what conditions may be placed on any funding. So, has An Smaoineamh Mór Ltd got €300,000 of public money in a bank account? Or not?

When I posed that question online, McKeon showed a new reticence compared to his earlier statement: “As to the status of the account today, we will not be publishing that detail during the competition.”

Actually, there are lots of “details” we don’t know about An Smaoineamh Mór’s accounts. We don’t know who those earlier-mentioned 13 parties (companies and individuals) are. A list of 87 names is provided on the Your Country, Your Call website as a non-exhaustive indicator of contributors, but not all have given money. We don’t know which of the named and unnamed contributors have provided money and if so, how much. We don’t know what the financial contributors’ relationship with the State is, though we do know from public records that two of the State-supported banks, AIB and Bank of Ireland, are in there somewhere. We don’t know, therefore, how much public money is in that €2 million “cash fund”.

That’s a lot of don’t knows. We’ve been promised since February that they would all be revealed “in the coming weeks”. Those weeks are still coming.

Finally, is the competition equitable to taxpayers? An Smaoineamh Mór Ltd is recognised as a charity by the Revenue Commissioners on the basis of its memorandum and articles of association. But those same documents allow for the company to establish for-profit subsidiary companies.

As already mentioned, it will own all the intellectual property in the winning entry or entries. It intends to establish a vaguely defined “something” to create jobs, and prosperity. But jobs and prosperity don’t occur in the abstract. They are the happy side effect of a highly profitable business.

Under what statutory power is the Minister considering funding a privately owned company (backed by undisclosed persons) with public money – completely outside the normal enterprise support institutions and structures – with the intended aim of developing a vastly profitable business or industry without any known provision for a return on that investment for the State?

And if there is such a power, how could it be in the public interest to use it?

Dud Judge

Well, there will be, allegedly, a Judicial Council. What complaints will it receive? Possibly not all it should.

It will not accept complaints which amount to an attack on the outcome of a case, nor should it. It will not accept complaints which are calculated to sap the spirit or determination of the judge. This latter class is of interest. After all, any complaint accepted by the Council would sap the determination of a normal person at the receiveing end of the complaint. In reality, only objective evidence of poor standards of judicial conduct will make it to the Council.

What would that be? It is hard to be dogmatic, but there are some events which, when reported, point almost invariably towards bad judicial behaviour as an explanation. (Oddly, and significantly, these events are often not reported by the media; most people try to get along without conflict).
In principle, a judge who issues a warrant for the arrest of the local Superintendent of the Garda Siochana is wrong. This is not to say that the Superintendent is beyond the law, just that the part played by the Garda Siochana in the normal functioning of the court’s business is supportive and could hardly be otherwise. It is more likely that a judge has become a lunatic than that the police function has become a maverick. (If the police function has become maverick, which can and has happened, the judiciary are, inevitably, complicit in that.)
What of other figures of power? Surely the Chief Executives of State bodies should not be permitted to cock a snook at the courts? Should they not be arrested?

Well, no.

What about legal practitioners? Should disruption of the court by defence counsel not be curbed by a timely arrest?

Well, no.

The actual problem, for the future, is to elicit complaints to the Council from the victims of such judicial behaviour. What Superintendent would not prefer to limit the unpleasantness already experienced and avoid a full blown investigation of an embarrassing clash with a judge? Would he/she receive support from the Commissioner in pursuing a complaint to the Council?

Probably not.

Finally, if there exists a Judicial Review list in the High Court consisting of cases from the work of one judge, is it not time to look at the judge, as well as his errors?

Digital Rights Ireland Data Retention Case

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted. Clearly, the High Court is not convinced that the form of question suggested by DRI is exactly right (or is seeking the assent of the State to DRI’s form of question). The hearing next Wednesday will show us which is the case.

DRI’s case is brought in its own name, but it is an action with implications for every citizen of Ireland, whether they know it or not.

For this reason McGarr Solicitors have published DRI’s pleadings on the Web since 2006. This is reasonable; the Respondents are, in effect and name, the State. The issues are public law issues and there can be no prevailing claim to privacy on those issues from these Respondents. It is worth noting that it is not common, to put it at its lowest, to see pleadings of current proceedings published but there is usually an exception to every rule and we have one here.

Between now and next Wednesday we will re-formulate the questions to go to the ECJ. These questions will form part of the Order of the Court making the reference to the ECJ. We currently estimate a two year wait to get a hearing in the ECJ. Delay is inevitable; every Member State of the EU has a right to intervene and be heard in the matter. That implies that every Member State must receive a copy of the Questions and the parties’ submissions.

Digital Rights Ireland update

THE HIGH COURT
2006 No. 3785P
Between
DIGITAL RIGHTS IRELAND LIMITED
Plaintiff
And
THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL
Defendants
UPDATE (5/5/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government.

2. McGarr Solicitors act for Digital Rights Ireland Ltd.

3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.

4. On 5th May 2010 the High Court delivered its (unapproved) judgment. The Court confirmed its agreement to refer the EU law issue in the case to the European Court of Justice. The Court refused the State’s applications seeking denial of locus standi to the Plaintiff and/or seeking security for costs.

5. The matter will be listed before the Court again on 12th May 2010 for submissions on the form of question or questions to be referred to the ECJ.

More on NAMA

Readers of this blog may recall a Freedom of Information request to the Taoiseach and the Minister for Finance for details of the discussion between the Government and the EU Commission relating to the price at which Irish bank assets would transfer into NAMA. That information was never furnished.
It is no surprise, therefore that NAMA has claimed exemption from complying with any Freedom of Information requests.
There is a possibility for some information leakage, however. J K Galbraith records, of German hyperinflation of the early 1920s, in Money: Whence it Came, Where it Went, (A. Deutsch, London, 1975, p. 157):-

“’Zero stroke’ or ‘cipher stroke’ is the name created by German physicians for a prevelent nervous malady brought about by the present fantastic currency figures. Scores of cases of the ‘stroke’ are reported among men and women of all classes, who have been prostrated by their efforts to figure in thousands of millions. Many of these persons apparently are normal except for a desire to write endless rows of ciphers.”

“Ciphers”, here, are zeros.
Now, if we camp outside NAMA HQ, we can check for sick people staggering from the office and possibly relate the number of the sick to the destruction of the Irish economy.

Financial Services – complaints

1. I have lost my savings in an investment with XXX Building Society. What can I do?

It depends on the facts. Deposits in a Building Society or a Bank are protected by the Government guarantee. Even with the collapse of Anglo Irish Bank and Irish Nationwide Building Society, the depositors with those institutions were secured and the deposits are available to be withdrawn. (In reality, all the deposits were lost in those institutions; it is the taxpayer who is replacing your lost deposit).

2. My savings were not a deposit when they lost their value. Can I still do something?

Other forms of “saving” are not as protected. If you purchased a bond it may be tied to general market values in say, the property market. The terms of the bond may govern your exposure to that risk.

3. I did not know of the risk when I bought the bond. Does that matter?

Yes, it matters a great deal. Only an unsophisticated investor would not have appreciated the risk; even so, the documentation given to you would have told you of the risk. However, if what you say is true, it shows you were an unsophisticated and vulnerable consumer. A consumer, at law, is not bound by unfair terms (or prohibited practices).

4. What is an unfair term or prohibited practice?

An unfair term is one falling into the definition of that phrase in SI 27/1995 as amended by SI 307/2000.

SI 27/1995 says:-

“…a contractual term shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer, taking into account the nature of the goods or services for which the contract was concluded and all circumstances attending the conclusion of the contract and all other terms of the contract or of another contract on which it is dependent.”

5. What does that mean?

It depends on the facts of the case. Pay particular attention to Paragraph 2 of the 3rd Schedule of Statutory Instrument 27/1995. Sub-paragraphs g), j) and l) of Paragraph 1 of the 3rd Schedule do not apply to:-

“…transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control;”

6. Is that a reference to prevailing property market values?

It would appear not. (The Stock Exchanges do not maintain a direct “property index”). Furthermore, that limitation only applies to transactions “… where the price is linked…”. If the price of the transaction is not so linked, the limitation is not relevant.

7. What about prohibited practices. What are they?

They are listed in Section 55 of the Consumer Protection Act 2007. You should carefully read Section 55 (1) (t), which reads:-

“(t) making a representation to a consumer that is inaccurate to a material degree in respect of market conditions, or in respect of the possibility of finding a product, with the intention of inducing the consumer to purchase a product at conditions less favourable than normal market conditions;”

That indicates that any aggrieved “investor” should explore what were the normal market conditions at the time of “purchase” and compare them with the conditions represented to him/her. (All of this is a reference to misleading information given to the investor, not a reference to better terms being available elsewhere). So, if the consumer is misled into thinking that a bond is as safe as a deposit, that is a prohibited practice. Or if the consumer is misled into thinking that a bond is the same as a deposit but with a higher interest return, that is a prohibited practice.

8. I thought only consumers who bought “goods” as opposed to “services” were protected by the Consumer Protection Act?

You were mistaken. It applies to the supply of goods and services. The Act says:-

“” product ” means goods or services;”

9. If I can prove I was misled do I escape from the loss?

Possibly. Read Section 43 of the Consumer Protection Act 2007. Section 43 (1) provides:-

“43.- (1) A commercial practice is misleading if it includes the provision of false information in relation to any matter set out in subsection (3) and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.”

Sub-section (3) (iv) refers to “…its benefits or fitness for purpose;” In short, if the consumer informs the trader of his or her purpose, the trader will be misleading the consumer if the product is sold avowedly for that purpose and it does not serve the purpose. Needless to say, if the consumer is misled as to the fitness for purpose of the investment, the consumer cannot make an appropriate transactional decision. There are many instances of misleading practices in the Section. The more instances that apply to any case, the greater the chance of prevailing in the struggle to get compensation.

10. What about the obligations on financial services practitioners to comply with SI 60/2007. Surely that is of assistance to consumers?

Possibly it is. To be sure, a consumer should always insist that the trader confirm, in writing, that it subscribes to, and complies with, the provisions of that Statutory Instrument (SI 60/2007). The Statutory Instrument embodies the regulations to which banks etc. are obliquely referring when they say in their advertisements that they “… are regulated by the Financial Regulator”. (We now know that the Financial Regulator was not regulating them). By procuring the reference in writing, the consumer will, without the possibility of contradiction or denial, get the benefit of the provisions of SI 60/2007 through the application of Section 45 (1) (c) of the Consumer Protection Act 2007.That Section reads:-

“45.- (1) A commercial practice is misleading if-
(a) it involves a representation that the trader abides, or is bound, by a code of practice,
(b) the representation referred to in paragraph (a) would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make, and
(c) the trader fails to comply with a firm commitment in that code of practice.”

11. Surely the Financial Regulator will look after me?

No. He may prosecute the offender, but he will not look after a consumer.

12. What about the Financial Services Ombudsman? Will he look after me?

He may, but be ready to urgently apply to the High Court in the event he makes a finding adverse to your interests. Under Section 57CI of the Central Bank Act 1942 as inserted by Section 16 of the Central Bank and Financial Services Authority of Ireland Act 2004, the adjudication of the Ombudsman is binding on a complainant. There is, according to the Ombudsman’s office, only 21 days from the date of the decision (not the date the Complainant learns of it) to lodge the appeal in the High Court. This is very inadequate and calculatedly so. See the substantial review of the Ombudsman process in the High Court JR decision relating to Enfield Credit Union and J & E Davy HERE.

13. Do I have to go through the Financial Services Ombudsman’s procedure?

No. You can litigate directly with the financial services provider in the appropriate court.

14. Is there an advantage in going to the court directly?

Yes. As noted by the High Court judge in the Enfield v Davy case, the court will not substitute its judgment for the decision of the Ombudsman. Consequently, if that High Court view of the legislation is correct (it may not be), a Complainant will lose the control over the complaint that litigation will give and will cede control to the Ombudsman, whose procedures may turn out to be cavalierly informal.

15. Is there a disadvantage in going to court directly?

Yes. It is much more expensive than the Ombudsman’s process. However, that disadvantage may be offset by the fact that the case will be heard in open court. The Ombudsman’s procedure is dealt with in private. It will often be well worth the extra expense to control the procedure and have the case heard in public. Furthermore, the application of consumer legislation is likely to be more rigourous in a court than in the Ombudsman’s process.

Justice

Generally, we expect High court judges to intend to do justice on a persistent basis. (Despite the title of the Department of Justice, Equality and Law Reform, we expect less from the Department, it being a bureaucracy).
Nonetheless it appeared necessary to the Oireachatas to enjoin judges to do justice. We see this in Section 28 of the Civil Liability and Courts Act 2004.
(Of course the foregoing is a fiction. Our Executive has ensured that the Oireachatas does not function correctly; somebody other than the Oireachats decided the terms of the Act).
Section 28 reads:-

“28.—(1) In a personal injuries action (other than an action under section 48 of the Act of 1961), any income, profit or gain in respect of which—
(a) the plaintiff is making a claim, and
(b) (i) a return has not been made before the hearing of the action in accordance with the Taxes Consolidation Act 1997 , or
(ii) the plaintiff has not otherwise notified the Revenue Commissioners,
shall, for the purposes of assessing damages, be disregarded by the court, unless the court considers that in all the circumstances it would be unjust to disregard such income, profit or gain.”

This provision bristles with difficulties for a judge. Whatever the judge decides, an appeal court could and probably would take a different view. The Section implies that some people will get the compensation and some people will not. Why? We do not know, and not to know is wrong. The fact that a Defendant is insured must be a deciding factor, otherwise the decision to withhold compensation would result in tax foregone by fraud (or error?) being credited to an insurance company.
Is it possible that one or more insurance companies procured the insertion of this Section into the Act?

Yes it is. We see from the Irish Times that a committee of bankers’ representatives was designing legislation (for banks) as late as 2008.
Now we know how Government works.

Medical Accidents

The frequency with which patients are injured in Irish hospitals is very high. The current estimate is of 160,000 per year.

Who knows the exact figure? Presumably, the Health Service Executive does. If it does, why is that information not made public? If it does not know, why does it not know?
Let us assume that the HSE is a competent body and infused with goodwill towards the patients. Would it not be a good idea to try to eliminate the causes of accidents or adverse events? If it is such a body, should it not direct all the health care institutions under its control to investigate adverse events to analyse how an accident or adverse event occurred, to prevent its repetition? If such an analysis took place would the findings not be required to be disseminated to the staff? Otherwise how would the staff know what to look out for to avoid repetition?
Now, in the light of the foregoing, is there a system in Irish hospitals of recording and reviewing adverse events? It appears there is not. The evidence for this is a) practical experience of looking for records and documents and discovering an absence of such notes recording relevant events and b) we are forced, at a macro level, to guess or estimate the level of adverse event occurrence as evidenced by public conference statements.
Admittedly, the hospital could omit written records and could call a conference of staff for the second Friday after the event to discover what went wrong and resolve, collectively, to try to avoid a repeat of the event in the future. No notes would be kept of this conference.
Why did the Supreme Court not canvass such possibilities in Doherty v Reynolds and St. James’s Hospital [2004] IESC? In that case the Plaintiff had heartburn. Following his operation to deal with his complaint he discovered quickly that he had an injured shoulder. Before he left the hospital he complained of severe pain in his shoulder to, sequentially, a nurse and two doctors (one of whom was the anaesthetist in the operation). He was sent home. His GP, on the same evidence, referred him to Beaumont hospital, which, on the same evidence, admitted him for treatment.
The Supreme Court although remarking:-

“I have not the slightest doubt that the trial judge in this case was entitled to accept the evidence of the plaintiff, his wife and Father Flanagan as to the complaints of severe pain and limitation of movement in his right shoulder and arm that the plaintiff was making in the immediate aftermath of the operation. The absence of any records of these complaints by any of the hospital staff is certainly remarkable and reflects, at best from their point of view, a singularly inadequate system of record keeping. It is clear that the plaintiff, who had gone into hospital for an operation intended to deal with a condition of heartburn and acid reflux but was otherwise in normal health, came out suffering from a painful and disabling condition in his right shoulder and arm which did not respond to any treatment until some six years later: so much, at least, is not in dispute in this difficult case.”

– went on to reverse the High court verdict in favour of the Plaintiff and order a new trial because it disagreed with the High court finding that the principle of “Res Ipsa Loquitur” applied in the case.
The hospital staff gave evidence of their usual practices. The evidence was that such practices were safe. They, generally, said they had no recollection of the individual events of the Plaintiff’s operation. This was unsurprising; they were giving evidence seven years after the event. However, there was an exception; one nurse did have an individual recollection. Beaumont hospital had raised a query with the surgeon, who in turn, raised a query with one of the nurses. This happened in the month following the operation. Thus, the High court had evidence that the Plaintiff had complained of his injury while still in St. James’s hospital and Beaumont hospital had enquired, in its investigations of the Plaintiff’s injury.
Why was there no investigation by St. James‘s hospital following these complaints? In fact there was; it appears, on the evidence, it was confined to a conversation between a surgeon and a nurse.
Bearing in mind that the Supreme court thought that the hospital had “…a singularly inadequate system of record keeping”, it was remarkably indulgent in accepting that evidence from staff, of what they would ordinarily do, as opposed to what actually happened, was a sufficient response to the Plaintiff’s evidence. It was reasonably clear that the High court judge believed that the hospital staff were culpably ignorant and that the failure of the hospital to call ALL its witnesses was to be deprecated (and justified his implied conclusion of culpable ignorance).
On a global view, the HSE, it would appear, supported by the Supreme court, thinks ignorance is bliss.

Ryanair’s Retreat

Michael O’Leary, presumably, finally sought or was given proper legal advice. We can presume this from his craven back-pedaling we saw in the last few days.
He firstly refused to comply with Ryanair’s obligations, to compensate his customers for cancelled flights, under Council Regulation 261/2004, stating his obligations in terms of contract obligations only.
The next day he, cack-handedly said Ryanair would meet its obligations. He was cack-handed because the manner in which he made the concession was misleading; it suggested he had not changed his position and that customers were not entitled to any of the benefits he should have given to them.
If it were not for the fact that he referred to the Regulation obligations as “absurd” one would think he did not know of the Regulation, but he clearly did. What, then, changed his mind? What did he not know?
Despite the shameful failure of the Irish Government to introduce the possibility of conducting “class actions” in Ireland, O’Leary may have finally realized that he was going to be plunged into class actions in the UK.
Without exception, Ryanair travelers are “consumers” under EU law. Consequently, they are entitled to litigate disputes with Ryanair in the consumer’s place of residence.
Many of Ryanair’s customers were UK residents; they were going to issue proceedings in the UK. There, they could, and surely would, band together and litigate their claims as a class action. By this means they would off-set the advantage of size that Ryanair has over any single consumer, a circumstance perpetuated in Ireland by the sullen laziness of successive Irish Governments. (All that is required is to amend the Rules of the Superior Courts; something the Minister for Justice etc. could do in a flash).
As a measure of the power and benefit consumers would get from a class action, O’Leary folded just at the possibility of being at the receiving end of one, not waiting to find out what the experience would be like, an experience Brian Cowen will deny to Irish consumers even as he is driven from office.

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