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 (21/4/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.
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. Judge McKechnie reserved judgment on those issues before the Court.
5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.
6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.
7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.
8. On 21st April 2010 Judge McKechnie informed Counsel for the Applicant and the State that he intended to deliver his judgment on 30th April 2010.
NAMA’S Rates Bill
Under Section 15 (3) of the Valuation Act 2001 State property is not rateable. Consequently, there is no obligation to pay rates on such property.
The Section reads:
“Subject to section 16 , relevant property, being a building or part of a building, land or a waterway or a harbour directly occupied by the State (including any land or building occupied by any Department or office of State, the Defence Forces or the Garda Síochána or used as a prison or place of detention), shall not be rateable.”
We have not heard (it’s early days) what proportion of the property taken by NAMA from the banks is now occupied by NAMA.
We need answers to some questions:
Is NAMA “the State”?
What does “occupied” mean?
A lot of money hangs on those questions.
Auditors
This blog has not been silent on negligence by auditors. See HERE and HERE and a suggested remedy to deal with major frauds HERE.
Every audit will follow a plan. If there is no plan, that’s evidence of negligence. The plan will show whether or not the auditor did his/her job properly. Of course if the “auditee” posts sudden enormous losses, that is evidence that there was a major problem in the auditee. Why did the audit not pick up those losses?
A profitable area for examination would the valuations of assets furnished to the auditee. Those valuations may have been provided by “independent” agents (auctioneers), commissioned either by the auditee or a third party. If those valuations were radically wrong that is a basis for litigation against the valuer to recover the loss arising from the deal or property which was the subject of the negligent valuation.
However, an auditor is obliged to take account of the possibility of fraud. Just because a valuation is on a file from an “independent” agent the auditor is not relieved of his/her obligation to consider whether the accounts show a true and fair view of the fiinances of the entity being audited. The fraud may be in the valuations.
Kaczynski Crash
President Kaczynski of Poland died with, among others, his wife in the Smolensk air accident. Death of spouses simultaneously is called Commorientes.
If they had been Irish, probably they would have owned their residence in joint names (in joint tenancy). The effect of this form of ownership is to vest full ownership in the survivor. Significantly, the property never becomes part of the estate of the first partner to die. However, commorientes defeats this process. Which died first?
Under Section 5 of the Succession Act 1965 simultaneous death is presumed in some circumstances.
Under Section 68 of the Civil Law (Miscellaneous Provisions) Act 2008 a joint tenancy in commorientes is converted into a tenancy in common in equal shares and each share forms part of the estate of the deceased partner.
Quinn Insurance
Here are some issues not addressed so far (in the papers I read).
(A) Quinn Insurance has a board of Directors. Sean Quinn is not on that board. The board has said nothing about the seizure of the company by the Provisional Administrators. Sean Quinn never stops talking about it and issuing press releases and public statements, including TV interviews.
Is he in fact in charge of Quinn Insurance?
This is possible. Under Section 27 of the Companies Act 1990:-
“…a person in accordance with whose directions or instructions the directors of a company are accustomed to act (in this Act referred to as “a shadow director”) shall be treated for the purposes of this Part as a director of the company…”
Does the Financial Regulator know anything about this that we don’t?
(B) Quinn Insurance has been accepting professional indemnity business from British solicitors. The mind boggles. Every now and again a wave of mortgage fraud sweeps Britain. Irrespective of whether the solicitors are complicit, the claims are numerous and large. It is very difficult to calculate the proper premium to match the risk. It is not easy, either, to refuse indemnity; the insured solicitors can fight.
Saying… No!
Ireland is currently coming to the consideration of profound derelictions of duty of a number of people, including and particularly, leading politicians.
The generalized defence coming out is that someone else was responsible.
The law has long had to deal with that kind of response. A solicitor, for example, is not entitled to say that he/she is following the advice of Counsel; that advice must be assessed by the solicitor and not be blindly followed.
Probably a nurse should not follow a doctor’s directions where they are clearly and obviously wrong. A pharmacist should not dispense a prescription where the pharmacist knows or should know that the wrong drug is being prescribed (or the perception is of such; bad handwriting should be considered).
Trouble for Builders
Remarkably, the builder of the Courts of Justice in the Strand, in London, became insolvent during and as a consequence of the work.
Many Irish builders are now becoming insolvent. That’s inevitable in circumstances where their employers, developers, are now insolvent and heading into NAMA.
Whatever the reason, this kind of difficulty is endemic for builders. In Marlborough v Strong [1721] 1 Bro. (P.C.) 175 the builder of Blenheim Palace was shortchanged by the Duke of Marlborough to the tune of £7,300 (an enormous sum).
The Duke refused to pay the shortfall on the grounds that his alleged agent, the Earl of Godolphin was not his agent. In fact the Duke had engaged the services of the Earl precisely to act for him in relation to the building; to employ people (including the architect, Sir John Vanbrough); and to enter contracts for the purpose. The Duke claimed that the Earl was acting as Lord High Treasurer of England and not as his private personal agent. The court thought otherwise and gave judgment for the builders.
(The Duke resembled some of Ireland’s developers; the Duchess reported him as not bothering, on one occasion, to remove his high riding boots in going to the task of “pleasuring” her.)
Professional Negligence
Many professionals (doctors, solicitors, dentists, architects, surveyors etc.) provide services to “consumers”.
Section 2 (1) of the Consumer Protection Act 2007 defines a consumer:
“” consumer ” means a natural person (whether in the State or not) who is acting for purposes unrelated to the person’s trade, business or profession;”
Services are covered by the Act of 2007 explicitly and under the definition of “product” which “means goods or services”.
The Act prohibits misleading commercial practices and provides:
“46.- (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision…”
The Act defines “transactional decision” as:
” transactional decision ” means, in relation to a consumer transaction, any decision by the consumer concerning whether, how or on what terms to do, or refrain from doing, any of the following:
…(e) exercise a contractual right in relation to the product;”
Section 46 transposes the terms of Article 7 of the Unfair Commercial Practices Directive into Irish law. The section prohibits the omission or concealment of information and/or the provision of such information if it is… “unclear”… etc. Prior to Section 46 it was not statutorily misleading to withhold relevant information from a consumer. “Contractual right” includes the right to issue proceedings and to know the factual basis of that right. In short, Section 46 of the Act of 2007 appears to require of a “trader” that he/she/it disclose to a consumer facts necessary to ground a claim of negligence against the professional.
Previously, the nearest pertinent law on this was seen applied in Gough v Neary & Anor. [2003] IESC
Judge Goeghegan said in that case:
“The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.”
The Consumer Protection Act 2007 appears to have moved the focus from the positive action of the Defendant to the deprived (of knowledge) state of the Plaintiff.
Concomitant rights of discovery would seem to follow in any litigation where the Plaintiff is a “consumer”. Current rules of court do not appear to recognize this.
Where the professional is in the building business (or is a builder), Section 46 of the Act of 2007 will affect the “contractual” duty on such a professional of making disclosure of defects in, say, design, even after the completion of the contract.
See New Islington New Islington and Hackney Housing Association Ltd v. Pollard Thomas and Edwards Ltd [2000] EWHC Technology 43.
Insurance Claims
See HERE for a post on the possibility of difficulties with insurance companies. Readers might like to know of the provisions of Section 55 (3) (f) of the Consumer Protection Act 2007.
It reads:
“55.- (3) A trader shall not engage in any of the following commercial practices:
… (d) in relation to a consumer’s claim on an insurance policy, doing either or both of the following:
(i) requiring the consumer to produce documents irrelevant to the validity of the claim;
(ii) persistently failing to respond to the consumer’s correspondence on the matter, in order to dissuade the consumer from exercising contractual rights in respect of that claim;…”
Practically, when you get this kind of run-around, phone your solicitor.