I see from the television that Brian Lenihan TD, Minister for Finance thinks (so he says) that the Government does not have access to batteries of lawyers (unlike the criminal organisations named in the Ryan report). Consequently, he implies, the Government can’t undo the deal done by Michael Woods and Bertie Ahern (his party members) with those organisations.
As Will Rogers said, its easy being a humourist when you have the whole government working for you.
Michael Woods TD, while he was Minister for Education etc., made an arrangement with certain religious orders as to the obligation of the orders to pay for the physical, including sexual, abuse of children in their care.
That arrangement, it transpires, was astonishingly generous to the religious orders. Their liability was limited to €127,000,000; the real cost of the liability will exceed €1,000,000,000.
The real cost has emerged from the Commission to Inquire into Child Abuse. The Commission has recorded the instances of abuse; looked at the general circumstances in which the abuse took place, and has determined the sum appropriate to compensate the individual victim.
The Government has said that it cannot, for legal reasons, (unexpressed and unexplained) re-open the arrangement with the religious orders.
Presumably, (we do not know) this is a suggestion that the “arrangement” is
a contractually binding agreement.
That suggestion is questionable. Firstly, such a “contract” would be very unusual. To see how unusual it would be, it is necessary to reflect on what a religious order is; generally, it is a group of people with fluctuating and varying membership but enduring through time. It would closely resemble a partnership. Often the property of the order would be held by trustees for the purposes of the order.
In principle, and it has been found to be so in the abuse cases, the order can itself be guilty of crimes committed by its individual members.
It is the criminal element that makes the arrangement very unusual. It is not often that a criminal seeks the protection of the courts to enforce an agreement absolving him/her from the consequences of criminal behaviour.
Secondly, the criminal parties to the arrangement with Michael Woods knew of their crimes; he, presumably, did not. Even if he did, an agreement to suppress the State’s obligation to prosecute crime or to relieve the perpetrators of liability in whole or in part for those crimes would be contrary to public policy. The agreement, far from being binding, would be unenforceable.
This would be just. To conceal their criminal responsibility was a deceit. Deceit in the making of a contract is a basis for claiming a repudiatory breach of condition.
In short, the Government, far from claiming it cannot, for legal reasons, re-visit the question of the liability of the orders to pay for the abuse should be claiming it cannot, for legal reasons, avoid re-opening the issue.
(The title to this post is a reference to a phrase popular in France during the Napoleonic era of propaganda – “to lie like a bulletin”).
This post is about words. In fact it proposes a conscious effort by the State to preserve some words or at least to promote them.
Perhaps the Royal Irish Academy could leave off running the Irish Secret Service (what else could it be doing, save that?) and discharge the job.
The first word to be promoted, I suggest is “rere”. It is a Dublin spelling of a word referring to the back of something, typically a house. It clings to life, written, I think, only on rubbish bins in Dublin city centre, as a direction to where the bin properly belongs in relation to its building. It dates from Cromwellian times. The UK has forgotten the word (and much else besides of Cromwellian times, and issues).
“Rear” is already carrying too heavy a load in the form of “rearing horses” and “rearing children”.
The second word is “mawkish”. The current Taoiseach, in his fashion, has adopted this concept in his (unattributed) communications to the Irish media. Now he should expressly adopt the word, come clean, and admit that his soulful references to the loneliness and responsibilities of power are mawkish.
As part of the assault on the constitutional rights of personal injury victims, the Minister for Justice etc. procured the making of a requirement, of such victims, that they write a letter to the person guilty of inflicting the injury within two months of that infliction. That requirement is found in Section 8 of the Civil Liability and Courts Act 2004.
A failure to write the letter within the time may lead to the victim failing to recover legal costs against the wrongdoer, depending on what the judge in the case thinks.
Lawyers have a good word to describe such a provision; that word is “calculated”. The provision is calculated to have considerable downside for the innocent victim, even if it is never put to the test.
Who will feel sufficiently brave to fight to the last ditch, knowing that the letter was not written and that the judge is an unknown quantity?
In short the victim’s morale will be sapped.
That was what the Minister intended.
When Napoleon invaded Italy in 1796 an immediate objective was to steal shoes. His army was poorly supplied and the soldiers were often barefoot. Given the success he achieved by speed and manoeuver, arguably the stealing of the shoes was necessary. Napoleon thought so, and who, now, would second-guess him?
However, what if he had had to seek permission to steal the shoes, beforehand?
That is, metaphorically, what an applicant for discovery in the High Court must do.
In High Court litigation a party to an action will not get discovery from his/her opponent even of relevant documents without demonstrating that the documents are necessary to conduct the litigation.
The Statutory Instrument specifies that the applicant depose that:
…the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs.”
This is a staggeringly bad idea. It implies that is possible to be complicit in, effectively, suppressing documents, and be ACTING FAIRLY.
It also implies that it is open to debate that, when a party has furnished copies of incriminating documents to the other party, there would not be a saving in costs in the litigation (by dint of the rapid capitulation of the miscreant or the economy with which his wrongdoing may be proved).
It is not to be forgotten that Section 4 of the Vagrancy Act 1824 was in regular use by the State until the decision in King -v- The Attorney General [1981] I.R. 233.
Under Section 4 a “suspected person” and a “reputed thief” could be convicted of an offence of, in practice, trespass. Not so, upstanding members of society.
As the court said in King;
…the ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, soprone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the Judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”
What is forgotten (not adverted to at all) is that the impulse to categorise persons so that some are to be victimised and others are not, is general.
For some time now, the Government and its supporters have consciously tried (and succeeded) to demonise plaintiffs in personal injury actions. This process has been underway for a long time. It began at least as far back as the 1980’s with the abolition of the civil jury in Ireland for personal injury actions. Under the civil jury system, a panel of ordinary people decided what the appropriate compensation should be for an injured plaintiff (subject to parameters decided by the Supreme Court).
More recently, the establishment of the Personal Injuries Assessment Board was widely seen as calculated to disadvantage plaintiffs in personal injury cases.
The fullest expression of this demonisation was seen in the Civil Liability and Courts Act 2004. This Act introduced radical new procedures and requirements particular to personal injury actions. Plaintiffs in such actions now had to face more and more obstacles in seeking the delivery of their constitutional right to redress.
This attitude has resulted in the growth of strange ideas. As an example, consider a fatal injury action. (Furey v Fitzpatrick & MIBI IEHC (1998)). The defendant has been negligent and has caused the death of a breadwinner. The dependants are entitled (under the Civil Liability Act 1961) to seek compensation for, among other things, the loss of income resulting to them from the death of their breadwinner.
However, the defendant then discovers something completely irrelevant to the issues in the action; the deceased person was not paying his/her proper taxes, if at all. The defendant now submits to the court that the dependants ought not to be compensated for their loss. (The defendant changes the focus from his/her wrongdoing to the supposed wrongdoing of the deceased person). This chutzpah received a respectful hearing in the High Court, less so, in another case, in the Supreme Court, but that it was given an outing at all is a warning of the ease with which what is called “the legal climate” can be used to ride roughshod over the rights of people who, inevitabley, are all alone when they confront their opponents, where the opponents have laid the ground for the battle long before they meet the plaintiff.
There are many important issues which are never discussed on doorsteps with political candidates at election time, but ought to be.
It is common in building agreements for the “employer” to hold back some monies due to the builder/contractor under the contract. This money is known as “retention money”.
The money belongs to the contractor. However, the “employer” is anxious to determine that no defects exist in the works which would allow the employer to deduct the cost of rectifying the defects from money due to the contractor. Until that determination is made the employer “retains” some of the money due to the contractor.
Given the collapse in the Irish construction industry it is now a serious problem to safeguard such retained money. If the money is kept by the employer with its own money it will be very difficult, if not impossible, to prevent the money from being lost in any insolvency of the employer. The remedy for this is to insist that the money be placed in a separate bank account (to the credit of the employer). Trust money (as this is) which is not mixed with the trustee’s money is not lost in an insolvency.
Even if the retention money was not required, under the terms of the contract, to be lodged in such a separate account, there is no reason why it cannot be done belatedly, before any insolvency is triggered.
The builder of the Empire State building in New York, when asked what the most important thing was in its building replied, “Getting the contract”.
What he did not say, but just might have been able to say, is that the “contract” may be subsequent to the commencement of work.
The reason for this lies in a practice common in the construction business, of issuing “letters of intent”. The intended purpose of these is to start the process of negotiation of the terms of the contract (or even to just gain time while the contract is being drafted), but to avoid inhibitions in the commencement of work.
The contract negotiation may be lengthy. Frequently, construction contracts are accompanied by “collateral” contracts intended to benefit third parties, such as the bank that is financing the construction.
Interesting, and profitable (for lawyers) questions arise when the work is completed in the absence of the formal signing of the contract. The correspondence may be replete with the slogan “subject to contract/contract denied”, but it will be difficult to maintain the position that there is no contract in such circumstances.
Depending on the course of the negotiations the planned terms of the contract may be readily discovered; very likely the intended terms were in the form of one of the RIAI contracts or some other model construction/engineering form.
Even if there is no contract, an “employer” is not entitled to deny responsibility for payment for work done. Claims of this kind used to be called “quasi-contract” but are now called “restitutionary”.
However, that circumstance and another where there was no “model” form of contract alluded to, present yet more interesting and profitable (for lawyers) questions as to what the subject matter of the contract was and whether one of the parties (the builder, usually) has complied with its terms.
This can easily arise where what was done was, say, constructing an extension to a house. Ideally, some construction professional (a surveyor, say) will have been engaged to specify the work and oversee its execution. If this has not happened and the work is not satisfactory, the “employer” must, belatedly, discover what are the minimum standards applicable to construction work. If the “employer” is not in business then the “employer” may be a consumer under the Sale of Goods and Supply of Services Act 1980 and some at least of the terms of the contract will be implied under the 1980 Act.
There is no reason, in the case of a small job, for work to commence before the execution of a proper written contract with a specification attached and for arrangements for the work to be supervised by a construction professional.
Hearsay evidence is, in general, not admissible in court.
Hearsay evidence is evidence of what some person, other than the witness, has said (on some other occasion), where the purpose of recounting what was said is to establish the truth of what was said (as opposed to the fact that it was said).
Some examples may illustrate this;
“The Defendant’s grandfather told me the Defendant was in Galway on the 1st April 2009, the day the burglary was committed in Grafton St., in Dublin.” – This is hearsay; the witness is intending to establish that the Defendant was in Galway and not in Dublin and, therefore that the Defendant is innocent.
“The salesman told me the car had done only 5,000 miles”. – This is not hearsay; the witness is intending to establish what the salesman told him, not to establish that it was true.
Why is hearsay evidence not admissible? Because it is unfair to admit it. If it is false evidence, by what means can the other party attack it or undermine it? Cross-examination will have little effect; the witness need only say, “…that’s what he said” in answer to questions suggesting that what was said was untrue.
There are exceptions to the rule, but a discussion of them here would be tiresome.
One example is sufficient; a witness may recount what a dying victim said to the witness – “ Jim stabbed me!”, for the purpose of establishing that that statement is evidence that it was, indeed, Jim who committed the crime and not somebody else.
(Jim being the victim’s husband).
This post is about Irish law; see HERE for material on English law.
Legal practitioners easily forget how arcane it is to do what they do. When the time comes they recognise one thing; giving evidence is intimidating.
It is intimidating even if the advocate asking them questions is inept and persists in making mistakes of various kinds (it happens).
Those mistakes may arise out of ignorance of the law of evidence and/or the necessary procedures to conform to that law.
Normally, the evidence for the Plaintiff is presented to the court first. The reason for this is that the burden of proof lies on the Plaintiff; he/she it is who is making allegations about the Defendant. The case is about those allegations, nothing else; (except where there is a counterclaim).
When all the evidence (from witnesses or otherwise) of the Plaintiff has been presented to the court, the Defendant will call his/her witnesses to rebut that evidence of the Plaintiff. That is, this will happen assuming the Plaintiff has made out a prima facie case. A prima facie case is one which, in the absence of rebuttal evidence from the Defendant, will entitle the Plaintiff to a verdict.
When a party calls a witness to give evidence, the advocate for that party is not permitted to “lead” the witness. That means that the questions put to the witness should not suggest the answer. Such questions are called “leading questions”. As a rough (but mistaken) rule of thumb, if the answer to the question is “yes” or “no”, the question is a leading question.
In practice, some leading questions are permitted. They are very useful to introduce non-controversial facts about the witness, for instance.
The examination of a witness by the advocate calling that witness is called “examination in chief”. It is more difficult to do this than it is to “cross-examine”. What the advocate must avoid doing, is to give the evidence himself/herself. A leading question has this effect; it suggests to the witness the evidence he/she should give.
Consequently, some witnesses struggle to answer questions in examination in chief, because they are surprised by the circumspect character of the questions. They come to life during the “cross-examination”.
“Cross-examination” is the process whereby the advocate for a party asks questions of the witness called by the other party. That advocate is not restrained in the form of the questions asked; leading questions are permitted. (Cross-examination is not bullying; bullying is not permitted).
To say that an advocate may ask leading questions is not to suggest that that, or any advocate, is completely free in the questions asked. Only relevant evidence is admissible in a trial; irrelevant evidence is inadmissible, therefore questions about irrelevancies are not permitted.
It is the job of the opposing advocate to ask the judge to disallow such questions. (Unless it is thought better to leave the opponent to drown in those irrelevancies).
Furthermore, it is the job of the Defendant’s advocate to, in due course, in cross-examination, give the Plaintiff’s witnesses an opportunity to comment on the case which the Defendant’s witness or witnesses will say in relation to the matters testified to by the Plaintiff’s witnesses. (The penalty for the Defendant if this does not happen can be severe).
When cross examination is finished the advocate who called the witness has a chance to ask further questions of the witness, but only to address new matters arising from cross-examination and requiring clarification.
The trial will proceed in this fashion with each witness being called and asked questions, first in examination in chief, then in cross-examination and then, maybe, in re-examination. Then the next witness is called.
The reason why cross-examination is so prominent in the mind of a witness is that the major purpose of those questions is to undermine the evidence given by the witness. This is not to say that that process will be successful; often it is not. In fact, cross-examination may “free” the witness to address the evidence again and deliver it more cogently and persuasively than first time around.
