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Corrib Gas Update

THE HIGH COURT
Record No: 840P/2005
BETWEEN:

SHELL E & P IRELAND LIMITED
Plaintiff
And
PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN
Defendants

And
THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL
Defendants to the counterclaim of second and fifth defendants
Update (17th March 2010)
1. On 18th and 19th November 2008, Judge Laffoy heard the application, on motion, of the State to determine as a preliminary issue whether the 2nd and 5th Defendants are precluded from raising “public law issues”.
2. McGarr Solicitors act for Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants. Their counsel are Lord Dan Brennan QC and Mark Dunne BL. The Chief State Solicitor acts for the Minister, Ireland and the AG. Their Counsel are James Connolly SC and Charles Meenan SC. Eugene F Collins act for SEPIL. Its counsel are Patrick Hanratty SC and Declan McGrath BL.
3. The court has decided (judgment delivered on 4th March 2010) that the 2nd and 5th defendants are NOT precluded from raising “public law issues”.
4. The proceedings commenced in April 2005, when Shell E & P Ireland Ltd. (”SEPIL”), issued plenary summons proceedings against the defendants. Mr. Philbin was committed to prison for 3 months, effectively, on the application of SEPIL on the grounds that he had breached an injunction restraining him from preventing SEPIL from entering his land.
5. In the events that have happened, SEPIL applied for and received the leave of the court to discontinue its claims against the defendants. This happened after SEPIL had received the defences of the defendants and the 2nd and 5th Defendants had counterclaimed against SEPIL and successfully joined the Minister and Ireland and the AG as further defendants to the counterclaim. SEPIL’s discontinuance did not end the counterclaim. The counterclaim is substantial. As against the Minister, Ireland and the AG it claims that certain Compulsory Acquisition Orders made by the Minister regarding the land of the defendants are invalid. It also claims that a consent allegedly made by the Minister in favour of SEPIL, to construct a pipeline over the defendants’ land is invalid.
6. The Minister, Ireland and the AG asserted that these are “public law issues”. They asserted that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They asserted that, that being so, those claims of the defendants are late. They asserted that the claims, to be admissible, should have been made within the time limits of 3 or 6 months (at most) after the making of the CAOs and the consent.
7. SEPIL supported the State parties in their submissions and position.
8. The defendants denied they are confined by the provisions of Order 84 and/or its “time limits”. They said that Order 84 is not an exclusive procedure; that it cannot be used to shut out the hearing of claims against the State where the State has wronged citizens, particularly with regard to the private property of the citizen. They said, consequently, that the counterclaim should proceed to a full hearing on its merits.
9. The matter has been adjourned for mention before Judge Laffoy to 18th March 2010.

Accident; No witnesses (Requiescat in Pace)

In W and M Wood (Haulage) Ltd. v Redpath [1967] 2 QB 520 the facts were these; a collision took place between a car and a lorry. It occurred on a straight stretch of road at night with no witnesses. The drivers and other occupants died. The available evidence was inconclusive as to fault. The court apportioned blame equally between the two drivers.

For more information see our Colour Supplement HERE

Accident: Settlement (Sign Here…)

The revelation that Cardinal Brady was at the heart of a church hushing-up of crimes of Fr. Brendan Smyth prompts a reflection as to the malign uses of documents imposing confidentiality or curtailing rights.

In Byrne v Ryan [2007] IEHC 2007, the court considered a “consent” which a patient had signed prior to surgery. The Defendant referred to the terms of the consent suggesting that the Plaintiff might;

“…not become or remain sterile..”

The Defendant contended that this was a consent to the actual outcome of the sterilization operation (the operation had failed). The court rejected the argument, saying;

“It merely records the patient’s understanding that there is a possibility of failure.”

The courts have frequently rejected arguments that claims have been settled, as purportedly evidenced by “releases” signed by Plaintiffs.

In Horry v Tate & Lyle Refineries Ltd. [1982] 2 Lloyd’s reports 416, the Plaintiff suffered a personal injury at work. There was a possibility of a recurrence of the injury. The employer’s insurers negotiated a settlement with the Plaintiff who was not legally represented and was not independently advised. The injury did recur and the Plaintiff issued proceedings in respect of the original incident. The Defendants pleaded the “settlement”. The court ruled that the insurance company owed the Plaintiff a fiduciary duty of care to ensure that he got independent legal advice. They were also obliged to reveal the contents of their medical report on him, to him, and where their interests conflicted with his they owed him a fiduciary duty. Consequently, the settlement was not binding on him.

For more information see our Colour Supplement HERE

Accident: Pedestrian (Hello!)

See the post “Gotcha?” below. In Clifford v Drymond [1976] RTR 134 CA the Plaintiff had been struck by a car at a pedestrian crossing. The court, accepting a calculation that the car that hit her had been traveling at not more than 30 mph and was about 75 ft. from the crossing when the Plaintiff began to cross, decided she had not been guilty of contributory negligence. She was 10 ft. onto the crossing when she was hit.

The appeal court found she was negligent to the extent of 20%. They said she should have allowed plenty of time to the car to stop or slow down and either saw the car or failed to see the car and was negligent in either event.

For more information see our Colour Supplement HERE

Car Accident (Gotcha?)

“The Green Cross Code” is for pedestrians.

The equivalent for motorists is more extensive. However, any amount of rules will be wasted if a driver has a defective attitude to his/her “rights”.

Long before the motorcar appeared, the roads were used by pedestrians and animals, particularly horses. It is within living memory that a large cattle market thrived at the top of Prussia St. on the North Circular Road in Dublin and the cattle were herded down the NCR to the docks for shipment to, usually, the UK. All that is gone now.

What motoring “entitlements” could be asserted in circumstances like that?

With the departure of the animals, only pedestrians remain to hinder the motorist. Pedestrians, being more malleable and responsive than animals, avoid offering themselves as a hindrance, for good reason.

Who has not been challenged by a motorist for having the temerity to walk across a T-junction, obstructing a turning car? Most pedestrians anticipate the car and yield to it, although the right of way generally rests with the pedestrian.

What hope, then, that a motorist would anticipate a momentary error by a pedestrian in a “refuge” on a dual carriageway? The self-same driver is, after all, in the “fast” lane as he/she zips past within inches of the pedestrian.

The fact is, a driver is obliged to drive in such a manner and at such a speed as to avoid a pedestrian who MAY step out onto the roadway. That implies that it is an obligation to SEE the pedestrian and, probably, to LOOK AT the pedestrian.

We see much of this in McDermott v McCormack [2010] IEHC 50.

The Defendant driver admitted he did not see the Plaintiff pedestrian. The Plaintiff was an admirable witness, given that he was thrown into the air by the Defendant’s taxi. The Defendant gave evidence of the Plaintiff’s head hitting his windscreen. The judgment does not record the Plaintiff’s evidence in detail on the point, but if it was tendered it would probably have been in terms of the Defendant’s windscreen hitting him on the head.

The case looks like one of excess of ambition by the defence. They were in possession of a report from a hospital showing the Plaintiff had been very drunk when the accident happened, but, as the judge remarked;

“…He was an alcoholic. Unfortunately, he still is. That does not disentitle him to damages.”

In the event the court found (without reference to the Green Cross Code, it not being law), the Plaintiff was 50% responsible for the accident (there was no crossing point on the road at the point of the accident) and reduced the damages from €266,758 to €133,379.

For more information see our Colour Supplement HERE

Accident statistics (Wrong Number)

We were mind boggled to learn that there are 4,000 adverse incidents in Irish Hospitals every month.

Now we know the statistic is wrong. It does not include the 58,000 adverse incidents from Tallaght Hospital.

A very large number of intelligent, knowledgeable, people must have known of the “systemic failure” in Tallaght. Every medical practitioner who read a Tallaght x-ray and acted on that reading knew that no confirmatory reading from a consultant radiologist had come to hand.

“Irish Health” reports;

“The remainder of the x-rays to be reviewed and reported on are understood to relate mainly to orthopaedics, and further new delayed diagnoses are thought to be unlikely at this stage.”

I imagine the reason for this is the tendency for failures to detect bone damage in x-rays to come to light by the pathetic return of the patient to the hospital with exacerbated injuries from neglect of the original injury.

For more information see our Colour Supplement HERE

Injury, accident, instructions (You said what?)

In Byrne v Hudson [2007] IESC the Plaintiff lost his eye when an adult son of the owners of 84 Windmill Rd. Crumlin in Dublin shot him with a paint ball gun from the upstairs window of that house.
The Plaintiff instructed his solicitor. However, the Plaintiff failed to tell the solicitor of certain circumstances actually known to him. Those circumstances were that the father of the adult son no longer lived at 84 Windmill Rd. and that the occupier was the mother. (The adult son also did not live at the address.)
Consequently, when the solicitor issued proceedings, the adult son and the father were named as the defendants, the latter as the occupier of the premises. As he was not the occupier, the action was bound to fail against him. Much later the Plaintiff joined the mother. She pleaded the Statute of Limitations 1957, as amended. The Plaintiff pleaded the Statute of Limitations (Amendment) Act 1991 in reply. Under this amending act time does not begin to run until a victim knows or with reasonable inquiry can know the identity of the person who has wronged him or her.
The mother claimed that the time within which the Plaintiff could effectively and successfully issue proceedings against her had long since expired. The Supreme Court agreed with her. It found that the Plaintiff could not avail of the provisions of the Statute of Limitations (Amendment) Act 1991 in circumstances where not only could he easily find out the relevant facts (that the mother was the only occupier) but that he actually knew this when he instructed his solicitor (and failed to tell him).
(What was at issue, [it is surmised], was the probable availability of insurance cover for the Plaintiff’s claim. That cover was to benefit the occupier and not anyone else. The adult son was not welcome in the house; he would not have been an insured person. The father was not an occupier; he would not have had cover. Only the mother as occupier would have been covered. She was the proper and preferred defendant.)
(Currently, an injured person has two years to issue proceedings and to stop time running against him or her. Only if the Statute of Limitations (Amendment) Act 1991 applies, will that time not start running at the accrual of the cause of action (the date of the injury)).
It is unwise to make a quick judgment on whether time has run against a claim or not. This post should not be relied upon to determine that question in any case. See the post “Disclaimer!” in this blog.

For more information see our Colour Supplement HERE

Pay Up!

The Irish Times has reported Treasury Holdings v O’Kennedy (Dublin Circuit Court).

Treasury Holdings succeeded in its proceedings against Mary O’Kennedy. She failed to complete the purchase of an apartment from Treasury. She also failed to “engage” with Treasury, from which we can only surmise she did not properly defend the proceedings. Consequently we can only assume certain things;
1. She lacked the finance to buy, due to the collapse in the market providing mortgage finance; or
2. She sought to avoid completion because the market value was now less than the purchase price;
3. She was a “consumer”. She would, therefore, have had the benefit of the provisions of S.I. No. 27/1995 European Communities (Unfair Terms In Consumer Contracts) Regulations, 1995. Of course, if a proper defence is not advanced in the proceedings that benefit, if any, would be wasted
4. Her contract had a standard loan approval clause. Contracts for the purchase of property of the value of this apartment would normally contain a loan approval clause. If Ms. Kennedy was relying on drawing down borrowed finance to fund the purchase, that loan approval clause was a vital term her solicitor would require to be inserted before she signed the contract. There is no difficulty accessing suitable terms for such a clause; the Law Society of Ireland has published one (December 1979).
5. There is a problem however with most mortgage loan approvals; they do not guarantee the actual provision of the money. They are subject to conditions and the offer of finance can be withdrawn before drawdown.
6. The Law Society clause is slightly odd in its terms. It contains the words;

“…the loan approval is conditional on a survey satisfactory to the lending institution or a mortgage protection or life assurance policy being taken out or some other condition compliance with which is not within the control of the purchaser the loan shall not be deemed to be approved until the purchaser is in a position to accept the loan on terms which are within his reasonable power or procurement”

Arguably, the phrase “accept the loan” must mean “accept the money” as opposed to “accept the offer of money”.
7. There is, nonetheless, the possibility of the purchaser having a loan approval clause and a loan approval and being left without the money and with the liability under the contract.
8. Worse than that, developers often demand the deletion of the loan approval clause after the issue of the loan approval letter to the purchaser. (They refrain from returning the contract, signed by the developer, having received it signed from the purchaser). Deletion should be resisted.
9. A solicitor would be wise to get the agreement of the purchaser in writing to the deletion of the loan approval clause and wiser still to tell the purchaser in writing that the contract is no longer conditional and that he or she will be required to complete even if he or she cannot obtain a mortgage.
10. That aside, it is not wise to put up no defence to the developer’s proceedings seeking specific performance of the contract.

Judgment of Ms. Justice Laffoy in Shell E&P Ireland Limited -v- McGrath and Ors

The judgment delivered today by Ms. Justice Laffoy in the case of

Shell E&P Ireland Limited -v- McGrath and Ors

can be found in pdf format by clicking on the above link.

The file is 3.6Mb in size, so may take some time to download. It runs to 55 pages. A summation may be found from page 54 onwards.

McGarr Solicitors act for the 2nd and 5th Defendants.

I Misspoke Myself

In legal circles the significance of making a wrong statement looms large. We saw this in the case of Willie O’Dea. Willie’s case is a double example; he straddled the legal world and the political world with his error. In the legal world the political world is often looked on with a cold eye, for good reason. In politics “denial” is not, it seems, evidence of a character flaw; it can be a skill, measured by the duration of the deferral of the time one is called to account.

Denial is only incidentally the subject of this post; conveying wrong information is its subject.

We are all of us guilty, at some time or other, of doing this. We have firm clear recollections of where we left the keys, the hand blender, the tea-bags, the car insurance etc. We were wrong. Nevertheless, we conveyed (even propagated) the wrong information to someone else. Errors of this kind are common. Significantly, being wrong is not evidence of wrongdoing.

There are occasions when being wrong is evidence of wrongdoing, but these occasions are not common. Even sworn evidence in court, if not accepted by the court, does not lead to a charge of perjury. Generally, we do not infer dishonesty from the error in the statement. It is tempting to say that the more elaborate the statement, the more it is evidence of a malign intent if it is wrong, but this is not true, as we saw in the case of Hilary Clinton.

Perjury aside, the law has been anxious to distinguish between wrong statements that cause personal injury and wrong statements that cause economic loss. (Most wrong statements cause neither).

We see in the case of Walsh v Jones Lang Lasalle [2007] IEHC 28 an instance of what statements and what circumstances will trigger liability for economic loss in Irish law.

In 2000 the plaintiff purchased 77 Upper Gardiner Street in Dublin for the sum of IR £2,342,000.00 for investment purposes. He dealt with the defendant firm, acting for the vendor and the defendant told him (in its sales brochure) that the property comprised a floor area of 23,057 square feet. In fact the floor area of the property was 21,248 square feet, (1,817 square feet less than what was represented to the plaintiff by the defendant).

The defendant’s brochure contained a disclaimer of liability for wrong statements in the brochure in the following terms;

“Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given.”

The High Court found for the plaintiff as follows; (a) the relationship between the plaintiff and the defendant was sufficiently proximate to give rise to a “special relationship” of the kind identified in Wildgust and, (b) that the loss allegedly sustained by the plaintiff was reasonably foreseeable in the circumstances and, (c) that the imposition upon the defendant of such a duty was, in the circumstances not unfair, unjust or unreasonable. The court was satisfied on the facts of the case that the defendant owed a duty of care to the plaintiff to ensure that the calculation of the floor area of the property that the defendant published in its sales brochure was accurate.

In the absence of evidence of purchasers commissioning surveys to check the accuracy of precise measurements contained in the brochures of reputable auctioneers, the court refused to find the plaintiff guilty of contributory negligence in failing to check the defendant’s measurements.

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