Call McGarr Solicitors on: 01 6351580

The Brussels Regulation

Council Regulation 41/2001, “the Brussels Regulation” decides the proper jurisdiction for the determination of disputes in the EU.

Its authors must have been chess fans, dreaming of the great games of the early twentieth century when Capablanca and Lasker dominated the game. That is, it is hoped the authors had dreams.

In a chess dream one does not want to know that Capablanca and his wife Gloria did not get on well and had affairs, even if one does want to know that he became a Cuban civil servant “…with no particular duties but to be famous and go about putting Cuba on the map”. (We have aspirants in Ireland for jobs like that, hence my inappropriate interest).

Likewise, we provide no market for books entitled “The Philosophy of the Unattainable” [Lasker].

No, indeed, chess players should be seen and not heard. They should play the game and recede into the darkness (better still, the languorous white light of the Cuban midday), when the game is finished.

That half-remembered, half-forgotten realm of austere thought seems to be the birthplace of the Regulation. The Regulation has the appearance of simplicity but it is deceptive. It has the capacity to throw up great surprises from apparently straightforward circumstances.

Who would have thought that it would favour the Irish legal profession?

What else can we conclude when we see the Regulation in action in Knight v Axa Assurances [2009] EWHC 1900 QB?

The Plaintiff was injured in a road traffic accident in France. The Defendant was the insurer of the French motorist who had injured him. Under French law the Plaintiff had a direct claim against the Defendant as insurer. That claim was for the payment of compensation, and therefore was a debt. The place of payment of debts is, generally, where the Creditor is domiciled. Furthermore, the Plaintiff was a beneficiary, under French law, of an insurance arrangement and Article 9 (1) (b) of the Brussels regulation applied.

In Ireland, we have not introduced provision for injured persons to claim against the insurers of the malfeasor who caused the loss. This provision is available in the UK and, it would appear from Knight v Axa, France.

Therefore, in Ireland, third parties (other than named beneficiaries) are not “beneficiaries” under policies and cannot invoke Article 9 (1) (b) of the Brussels regulation to issue proceedings in their home state. They have to sue here, being the place where the wrongful event happened and the defendant resides.

A Marriage Settlement

Some law cases are definitely more interesting than others. In 1604 Mr. Belott married Ms. Mountjoy. Her dad promised Mr. Belott a payment in return for the marriage.

That payment, it appears, was not made.

In 1612 the case of Belott v Mountjoy came before the court. Mr. Belott felt that Mr. Mountjoy had shortchanged him.

Interestingly, a witness in the case had acted as matchmaker and, presumably, knew the details of the terms of the settlement.

That witness was William Shakespeare, (“Wilm. Shaksp.”) (Shakspear?). Unfortunately, he could not remember the details of the settlement or dowry. Crucially, he did confirm there had been agreement on a settlement.

Shakespeare had been a lodger in the Mountjoy household in 1604. Belott was the Mountjoy apprentice. How he found time to act as matchmaker is a mystery; perhaps his role extended to a conversation over an evening meal after his return from the theatre. Shakespeare’s life involved acting (the ghost of Hamlet’s father, in Hamlet, for instance), playwriting and, it is believed, directing. The theatres of the time presented five or six plays a week; so Shakespeare was working, probably, six days a week as an actor, writing plays and learning his lines for the forthcoming productions.

When the Belott v Mountjoy case came on for hearing, Shakespeare was in retirement in Stratford on Avon. The court was in London. One wonders about the difficulties confronting Belott in the serving of the subpoena on Shakespeare and what playwriting these events might have produced, but for the retirement of the witness!

Hand of Henry

Football, (soccer football) is important. It embodies the need for transparency. Thierry Henry’s foul handling of the ball in the Ireland v France match is trivia, but the advancement of FIFA’s interests in having two big nations playing in the World cup final is not. Interest like that cannot be open to transparency; they run counter to the spirit of soccer football.

Ireland was punching above its weight in the game with France. When you are punching above your weight you better know it and you better aim for a knock out blow to win. A win on points will not be vouchsafed to you.

Furthermore, accept the fact of failure, having properly defined it. The failure to comprehensively eliminate France was the failure, and is only made the more painful by the antics of Brian Cowen and Martin Cullen. They will do nothing to correct FIFA’s faults.

What!
In ill thoughts again!
Men must endure/ Their going hence, even as their coming hither:/ Ripeness is all.
Come on.

-King Lear

Judge School

In the public service strike, the courts stopped work on Tuesday the 6th of November 2009. This is of less interest than the stoppage of the previous Friday. The judges of the superior courts went to school that day and, of necessity, ceased working. Why was this interesting fact not reported by the media? More importantly, why do we not know the subject of the lessons of the day?

We owe great debts to Montesquieu but he over-egged the pudding when he asserted the primacy of the constitutional principle of the separation of powers. The Executive power will not countenance, and never has, full judicial independence.

Consequently, it is naïve to think a court is not an agent for the application of Government policy, as expressed in law (and sometimes not so expressed).

This may not be the context for the judges’ lessons, but we can hardly think they need refreshers on whether Ms. Donohoe should have won in Donohue v Stevenson [1932] AC 562.

Perhaps they needed a good talking to about the imperative to front-load legal costs on uppity Plaintiffs seeking injunctions?

Or why proposals to re-introduce the death penalty into Ireland ought to be seriously addressed, to distract from current political difficulties?

Or why the current chaos in the Irish legal system, that is the provision of discovery of documents, should persist?

Of course, the lessons may not address these things at all. They may be perfectly standard “continuous professional development” stuff, consisting of a review of recent case law on some theme, say, Tort law.

Either way, it behooves the media to at least ask what is taught at Judge school. It might tell us something about Ireland we need to know, and God knows, we know very little.

Data Theft

The UK mobile phone operator T-Mobile has reported the theft of its customers’ personal information. T-Mobile (and the UK Information Commissioner) say the employee(s) received substantial payments for the information.

If this happened in Ireland the employee would be guilty of an offence under The Public Bodies Corrupt Practices Act 1889, as extended by The Prevention of Corruption Act 1916.

The payment is a bribe.

Running Time

Legal proceedings claiming compensation for personal injury (including injuries due to medical negligence) must commence within two years of the commencement of the running of time against the injured person.

When does time begin running?

It depends on the facts of the case.

The Irish Medical Council has published Guidelines to doctors that they may be convicted of medical malpractice if they are not open to the patient or the family of the patient in the event of error.

This is good. It is good for two reasons; firstly, the Council’s ruling (although not entirely selfless) will allow injured persons to access legal advice promptly after an error (and retrieve evidence before it is lost).

Secondly, the situation referred to in this earlier post of McGarr Solicitors can be avoided. The situation was one where, due to the deceit of a doctor, the Statute of Limitations did not begin to run against a patient until she could find out about the injury and the full, true, circumstances in which it was inflicted.

Grand Night

The King’s Inns is the only Inn of Court in Ireland. The UK has four; Middle Temple, Inner Temple, Lincoln’s Inn, and Gray’s Inn.

In the King’s Inns the students and Benchers of the Inns eat dinner in the Great Hall of the Inns during term time. Each student diner is supplied with beer and half a bottle of wine (or port). Each Bencher diner is also supplied with those drinks, and brandy or whiskey. In Ireland, every judge of the superior courts is a Bencher of the King’s Inns. In the King’s Inns the last Thursday of each term is “Grand Night”.

The drinks allocation is doubled on “Grand Night”.

The ostensible purpose of the dinners is to follow the tradition by which education was imparted to new barristers; they learned what was what by eating, and conversing, with the practising barristers.

Nowadays, they probably confine themselves to conversation about how bad the Government is, or how fortunate Ireland is to avoid the US experience with the use of the death penalty, as reported HERE by the Guardian.

Of course, by the end of a Grand Night, they may be discussing how good the Cabinet is, (especially the Minister for Finance who is qualified as a barrister) and how the Guardian is not a quality newspaper.

Sample Personal Injury Summons

ENDORSEMENT OF CLAIM

1. The Plaintiff’s claim is for the reliefs recited herein for personal injuries suffered by the Plaintiff.

2. The first Defendant resides at . The second Defendant resides at .

WRONG ALLEGED AGAINST THE DEFENDANTS

3. At all material times the first Defendant was the driver of a motor vehicle, the property of the second Defendant, in which the Plaintiff was traveling as a passenger and which collided with a third party vehicle causing severe personal injury loss and damage to the Plaintiff.

PARTICULARS OF CIRCUMSTANCES RELATING TO THE COMMISSION OF THE WRONG

4. On or about the 1st December 2009 the Plaintiff was lawfully a passenger in a motor vehicle driven by the first Defendant on the public highway at Dame St. in the City of Dublin, when owing to the negligence and breach of duty including breach of statutory duty of the Defendants their servants or agents or either of them in and about the driving, management, care, control and upkeep of a motor vehicle then being driven by the first Defendant and being the property of the second Defendant, same was caused or permitted to collide with a third party vehicle in consequence whereof the Plaintiff suffered severe personal injury and suffered loss damage and expense.

5. The Defendants their servants or agents or either of them were guilty of negligence and in breach of statutory duty in that they or either of them:

a) Drove too fast;
b) Drove without due care and attention;
c) Failed to keep a proper or adequate lookout;
d) Collided with the said third party vehicle;
e) Failed to have any or any adequate regard for the prevailing road conditions;
f) Failed to stop slow down swerve or in any other way so to manage the said vehicle so as to avoid the said collision;
g) Failed to have any regard to the presence and location of the third party vehicle on the highway and to yield the right of way to the said vehicle;
h) Failed to comply with the provisions of the Road Traffic (Traffic and Parking) Regulations of 1997 and Section 67 of the Roads Act of 1993.

PARTICULARS OF PERSONAL INJURY

6. The Plaintiff suffered severe injuries to his head, face, neck and legs as a result of the accident. He was taken by ambulance to the Mater Hospital and then transferred to Beaumont Hospital. He underwent nailing of his right femur and the screw was subsequently removed in December 2010. The Plaintiff remained in hospital in Beaumont for approximately 14 days. He was then transferred back to the Mater Hospital where he underwent further treatment, including physiotherapy.

The Plaintiff continues to suffer from ongoing pain in his right leg that restricts his lifestyle and employment prospects. The screws were removed from his leg and he has continued to suffer from ongoing muscle pain on the right side. The Plaintiff obtained employment as a storeman during the course of 2010 but it was necessary for him to give this up as a result of pain in his right thigh that was made worse by prolonged standing. It is the opinion of the Plaintiff’s experts that he sustained a concussive head injury of moderate severity. This injury is associated with psychological symptoms that have improved but have not recovered completely. As a result the Plaintiff continues to experience ongoing post-traumatic headache and neck pain.

The Plaintiff has a visible scar across his cheekbone and a scar on his chin. The Plaintiff also suffered dental damage as a result of the accident. It is expected that the Plaintiff’s cognitive impairment is likely to be permanent with no further improvement. It is the opinion of the Plaintiff’s expert that the Plaintiff’s capacity for future employment is more limited than it would have been if the injury had not been sustained. It is likely that the right femoral injury will limit his ability to obtain employment that requires walking long distances or prolonged standing. His cognitive impairment will make it more difficult for him to learn and remember the tasks of a new job. In the circumstances the Plaintiff will probably suffer loss of earnings into the future and will require vocational review.

Apart from the physical injuries the Plaintiff’s psychological symptoms included mood disturbances, suspected post-traumatic stress disorder and cognitive impairment. The Plaintiff continues to suffer from nightmares and flashbacks as a result of the accident. The Plaintiff had suffered an episode of depression in his early twenties but had no difficulties immediately before the accident. A final prognosis must be guarded. The injuries were severe and debilitating. They interfered with the Plaintiff’s enjoyment of life and all routine and other activities, particularly his playing of football, which he was accustomed to doing every Saturday before the accident. The onset of further sequelae cannot be ruled out.

RELIEFS CLAIMED

7. AND the Plaintiff therefore claims damages together with the costs of these proceedings and interest pursuant to the Courts Act 1981.

8. The proceedings herein have been authorised by the Personal Injuries Assessment Board, pursuant to Section 17 of the Personal Injuries Assessment Board Act 2003 by Authorisation No. XXXXXXXXXXXXXXXXX dated 1st September 2010.

SCHEDULE

PARTICULARS OF SPECIAL DAMAGE

Loss of earnings (continuing)
Medical expenses (continuing)
Chemists’ bills (continuing)
Travel (continuing)

Signed: ____________________________
McGarr Solicitors
Solicitors for the Plaintiff
12 City Gate
Lwr. Bridge St.
Dublin 8
Ph.: 01-6351580

This Summons was issued by the Plaintiff Joe Soap whose personal details are as follows:

1. The address at which the Plaintiff ordinarily resides is 10 Leafy Lane, Ballyfermot, Dublin 10
2. The Plaintiff’s occupation: Storeman

3. Plaintiff;s date or birth: 1/4/1979

4. Plaintiff’s PPI No. XXXXX

5. Plaintiff’s address for service is: McGarr Solicitors
Solicitors for the Plaintiff
12 City Gate
Lwr. Bridge St.
Dublin 8

Money

It is far from obvious what money is.

That the price of gold has risen to an all-time high is evidence of this.

Of what real value is a piece of gold? It has some industrial use, but not much.
It endures over time, but basalt does likewise and, indeed, in the context of a human lifetime the endurance of gold is nothing outstanding; it shares that property with too many other substances. Why should it increase in value relative to any, or all, national currencies, as it has done?

It is in fact a reference point; the currencies have fallen in value relative to it.

Probably money is an economic notion more than a legal one. That notion is subject to change; consider e-money.
E-money can be encountered in a chip card which has been “loaded” with “value” and which can be used to discharge an obligation, limited to the value in the card. The possession of the card is sufficient to get the value of it. Significantly, the State need not, and usually does not, have any involvement in such e-money.

One theory of money, “fiat money”, bases it on the State control of the monetary system and the issuing of notes and coinage. “Nominalism” is an essential element of the State theory of money. Nominalism was recognized by Aristotle in the Nichomachean Ethics;

… money has been introduced by convention as a kind of substitute for a need or demand … its value is derived not from nature but from law, and can be altered or abolished at will”.

It is a principle of Irish (and UK) law that the purpose of the award of compensation by the courts is to, insofar as money can, place the injured party in the same position as if he/she had not been injured.

The State theory of money is, potentially, at odds with that principle because nominalism disregards everything save the attributed value to the currency or State “unit of account”. Nominalism disregards the changing value of the currency. It takes no account of inflation or depreciation.

The compensation principle is an expression of another principle; the need to do justice. The acceptance of Nominalism is, when it comes to compensation for injury, a breach of the requirement to do justice.

Un-adjusted money value may, in a period of inflation, greatly benefit a wrongdoer. The wrongdoer may deprive a victim of value but, due to the effects of inflation, ultimately be obliged only to make restitution of something of lesser value than the benefit he/she gained.

The Book of Quantum of the Personal Injuries Assessment Board has a similar effect.
It sets out “values” for some types of personal injury and in doing so clearly accepts the State theory of money and inherently accepts the principle of nominalism. In truth, the “values” in the Book of Quantum are not fixed values; they change to a greater or lesser degree and the underlying trend historically is to have them depreciate in value, relative to everything other than the attributed value of the currency.

The UK courts have avoided the problem by affirming that the “value” at the date of judgment is the appropriate value to determine proper compensation – [Ascot Midland Baptist (Trust) Association v Bermingham Corporation (1970) AC 874]. This approach involves taking account the value of the money; it takes account of the effect of inflation. A Book of Quantum does not.

It is worth noting that the UK Law Commission rejected the idea of the establishment of a “Compensation Advisory Board” i.e. a UK PIAB.

NAMA “Reform”

Conventionally, to propose a debate is to, impliedly, claim to be reasonable. Calling for a debate overlooks the fact that we cannot, and should not, submit everything to debate; where things are settled and agreed, they should not be opened to examination (and procrastination), unnecessarily. The call may be further invalid (and in bad faith), in not really proposing a debate, but simply using it as an announcement of intended, forced, change.
That’s the reality of the debate proposed by Colm McCarthy, the economist, on compensation for personal injuries.
He, in effect, is proposing to reduce that compensation. His proposal could be ignored if we did not know that he expresses the view of Brian Cowen, the Taoiseach; that is, he expresses the view of the Government.
This is valuable. As a consequence of knowing his connections, we have an insight into the Government’s view of NAMA. Mr. McCarthy has proposed that NAMA be used to process the payment of personal injuries compensation.
Currently, the Government has tunnel vision when it comes to money and payments; it wants to reduce it’s liability to pay them. Imagine our scepticism if Brian Cowen claimed, now, that he wished to be “fair” in proposing, or introducing, a new method of delivering compensation to injured persons. (Consequently, we have Mr. McCarthy flying the kite).
For a long time the Executive has undermined the constitutional principle that the violation of bodily integrity be vindicated.
a) It abolished the use of civil juries to determine liability and quantum in personal injury cases.
b) It has reduced the time within which an injured person must issue proceedings against a wrongdoer, before being statute barred and deprived of the right to be compensated.
c) It has imposed a cumbersome procedure on personal injury claimants by means of the Personal Injuries Assessment Board (“PIAB”) (aka “the Injuries Board”).
d) It has attempted to block access of injured persons to experienced personal injury lawyers.
e) It has introduced intimidatory procedures for Plaintiffs in the personal injury litigation process.
In Ireland, as in the UK, we have formally addressed the necessary, process of reforming our laws.
We have a Law Reform Commission. We have a Committee on Court Practice and Procedure. We have a Constitution Review Group. We have an Oireachtas Committee on the Constitution.
In short, we are not lacking in mechanisms for correcting archaic legal elements.
Now, it seems, we have one, possibly two, more. They are Colm McCarthy, and NAMA.

1 … 38 39 40 41 42 43 44 45 46 47 48 … 95