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The Courts Service in Ireland is an improvement over previous “arrangements” for the delivery of justice.

Inevitably, it being an infant body, it has and will make mistakes. A relatively small but irritating mistake is the installation of “security” in the Four Courts.

Currently,* access by the public to the Four Courts is through a kind of modular building, at what used to be the Morgan Place entrance on the quays. There, one has to pass through a metal detector and put one’s luggage through a scanner. Harmless enough, but expensive, and ineffective to prevent terrorist Muslim attacks.

What Muslim attacks?

There have been none in Ireland.

Of course, they might be launched. Nobody can say they would not be launched.

However, the history of Ireland is replete with times and periods when very real domestic threats of terrorism existed. Frequently, the Four Courts was the scene of forensic points of conflict between the State and an irregular armed power.

There was, effectively, no permanent “security” in the Four Courts during those times.

In the judgment of this writer, the decision to install the current security arose out of a bomb scare in the building which saw the Supreme Court, as a collective, with every other user of the building, walking about on the pavement outside the building and drinking take-away coffee from the back of an entrepreneurial van parked in a loading bay in Chancery Place.

But the solution, the current “security” is not effective. It does not eliminate bomb threats. It is not a proper source of confidence that any bomb threat is a hoax. (It is too easy to circumvent the “security”).

There is an alternative, chilling, explanation; we are aping the US Supreme court. It, too, has closed the front door of the court and is breaking the architectural integrity of its building.

What if terrorist Muslims really are a threat to the Four Courts?

We should spend our money supporting the programme, of Lord Weidenfeld’s Institure for Strategic Dialogue, for a European Muslim Professionals’ Network. That way, at least, Muslim barristers will find a support group to hand when they encounter the dress code of our Rules Committee of the Superior Courts.

Whatever about dress codes, many people would be glad to see the departure of the “security”, including members of the judiciary and at least one senior barrister who, I understand, refuses to produce his electronic pass to gain access to the courts. (Too much; don’t go there).

*(Note; never “presently”, when you mean “at present”. “Presently” means in a “little while” or “shortly” or “in due course”).

The Supreme Court Workload

I seem to have picked up the impression that the Irish Supreme Court thinks it is overworked or is burdened by cases without merit.

In the US Supreme Court, they are not obliged to take any and every appeal.

Nevertheless they allowed THIS CASE in the door.

Rubbish accumulates everywhere, it seems.

Negligent? So what?

The logic in the title to this post is lurking in every action alleging negligence, but it is a formidable retort in a medical negligence action.

In Chester v Afshar [2004] UKHL, the Defendant adopted that retort. He had operated on the Plaintiff for lower back pain. He had failed to warn her of a possible dangerous outcome of the operation. That outcome transpired. She became partially paralysed. This was a 3%-4% chance outcome of the operation.

Generally, to secure a victory in such circumstances a Plaintiff will be heard to say that, if the appropriate warning had been given the Plaintiff would have declined the operation. Ms. Chester declined to say that. Instead, she said she would have declined the operation that day. By this she meant she would have taken time to reflect on the terms of such a warning; she would have consulted friends and relations and then she would have decided.

The House of Lords found in her favour. In the majority, Lord Hope stressed that to deny her the verdict would render the requirement on doctors to advise and warn their patients of such risks, “…useless in the cases where it may be needed most”.

The Court conceded that in reaching this verdict, it was adjusting the usual burden on Plaintiffs in medical negligence actions.

The outcome was fair. After all, should the Defendant not, in those circumstances and on those facts, be required to prove that the Plaintiff would, in due course and despite the warning, have proceeded with the operation? In all such cases that is the implicit assumption of such Defendants. What is valid about that assumption?

Contaminated Irish Pork Products: Addendum

A blog is just a blog and is rarely definitive. I missed two elements of the post relating to the contamination of Irish pork products.

A. Irish farmers sell their pigs to factory processors; it is from the processor that the supermarket/retailer gets supplies. (So too, will a secondary processor such as a sausage maker). So, the retailers will have a claim against the processors; the processors will have claims against the farmers.

B. My post assumed delivery of the oil at its source. If delivery is at and to the Irish pig feed manufacturer in Ireland, Council Regulation 44/2001 will apply. Jurisdiction in those circumstances will be Ireland, not the place of the location of the supplier of the oil.

Details of the indemnity to the factory processors, by the Irish Government, are not to hand. Accounts suggest it is not a full indemnity. If so, the processors will be able to properly claim the balance from the farmers, who will in turn be able to make a claim against the pig feed supplier.

A sensible arrangement for the Government indemnity would have made provision for Ireland to be entitled to receive a proper portion of compensation recovered from farmers and/or the pig feed supplier.

A matter of great interest is the level of insurance cover of the farmers and the pig feed supplier. As always, the practicality of litigation is important.

Yet again we see the urgent necessity of legislation in Ireland to provide for Third Party rights under insurance and other contracts.

In the UK they have had that for 70 years and do not appear to have had any problems. What’s keeping us, (besides ineptness)?

Liquidated Damages

In construction contracts the payment of liquidated damages is a benefit to the parties. Depending on the circumstances it can benefit the developer by relieving it of the obligation to prove a loss, whereas it can generally benefit the contractor in relieving it from the necessity to resist a [valid] claim and also introduces certainty as to consequences of the contractor’s default. Both parties can avoid expensive disputes in the courts with consequent delay for the project.

However, it is not a carte blanche for the contractor to neglect its obligations in terms of time, say.

In Bath and North East Somerset District Council -v- Mowlem Plc [2004] CA, Mowlem refused to follow an architect’s instruction. The developer council advised Mowlem that if it persisted in its refusal the council would engage another contractor to do the work. Mowlem again refused to do the work and the council instructed another contractor on the matter whereupon Mowlem refused to allow the replacement contractor on the site to do the work.

The council applied for an injunction to effect entry for the replacement contractor. Mowlem, in resisting the application, claimed that the only loss accruing to the council was a loss of time and that was capable of being remedied under the terms of the contract, which fixed liquidated damages for the delay.

The court disagreed and stated:

Mowlem is not entitled to breach its contract. The agreement on liquidated and ascertained damages is not an agreed price to permit Mowlem to do so, and it does not preclude the court granting any other relief that may be appropriate. In my view, the Council’s case is right in principle.”

There was evidence to show that the council’s loss would exceed the liquidated damages and the court affirmed the injunction granted in first instance to the council.

Proofs in Medical Negligence

It was a measure of the complexity of medical negligence litigation that Lord Woolf in his now famous and influential report devoted a special mention to those proceedings.

A plaintiff must prove the liability of the defendant. This is not equivalent to proving causation. Liability may arise where proof of an error in judgment or management is established, but the plaintiff must go in to prove that that error was the cause, or a cause, of the untoward outcome for the patient.

Very often this requires the evidence of two separate experts on behalf of the plaintiff, one on liability and the other on causation.

Mixing it, lawfully

The accounts of Minister Eamon O’Cuiv’s assault on a student are somewhat confused. He admits grabbing the student by the arms.

He justifies this, it appears, by claiming to have been acting in defence of his secretary. The uncertainty lies in the issue as to why she needed defending. The Minister according to one account believed the secretary “felt” threatened and on another account asserted that she had been assaulted (by being kicked) and that the person he, the Minister, grabbed (or restrained) had been armed with a piece of wood.

Mr Ó Cuív said he acted in defence of his secretary who had been threatened by an individual who was wielding “a piece of timber” and had to act to defend his secretary and himself.

“I think I was right to defend my secretary. She was very, very upset because one of the protesters had a piece of timber. And it was the second time in a week that she had been intimidated by some of the same students because they forcibly entered my office last week. They occupied my office and there was only female staff there at the time,”

Subject to qualification, if the latter account is accurate, the Minister has a good defence. Section 18 of the Non-Fatal Offences Against The Person Act 1997, provides:

18.—(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—“

This is a somewhat peculiar expression. It alludes to an objective standard (“…as is reasonable in the circumstances…” and also to a subjective standard (“…the circumstances as he or she believes them to be…”).

The Minister’s articulation of his justification is itself a complicating factor; he was, variously defending himself and his secretary and/or his secretary, and was doing so because of an immediate threat (“wielding a piece of timber”) but also because of the perceptions of the secretary and the quality of the threat as revealed by the alleged (by the Minister) behaviour of some of the students in the previous week in occupying his office. Later, his office asserted the secretary was being squashed against a wall and was being kicked.

The Minister is certainly entitled to defend himself:

( a ) to protect himself……………. from injury, assault or detention caused by a criminal act;”

and to defend another person;

( a ) to protect himself ………… or another………”

He is also entitled to use force:

( e ) to prevent crime or a breach of the peace.”

In any prosecution of the Minister for the assault on the protester, the prosecutor would have to negative the Minister’s defence of acting within the provisions of Section 18.

FOWA

Welcome to Dublin, Future of Web Apps!*

McGarr Solicitors will endeavour, (on application here), to see that you have access to free Guinness, not for the occasion, but in association with it.

Our office is within a couple of hundred metres of the Guinness brewery of St. James’s Gate. Call in and we will give you a roadmap to the brewery, and the Guinness (but not to the adoption of the Treaty of Lisbon!).

* 6th March 2009, Liberty Hall

The Detectives

Under Article 2 of the European Convention on Human Rights and Fundamental Freedoms everybody in Ireland has a right to life. It reads:

Everyone’s right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence of a
court following his conviction of a crime for which this penalty is provided
by law.

Deprivation of life shall not be regarded as inflicted in contravention of
this article when it results from the use of force which is no more than
absolutely necessary:”

This is the context in which to see any occasion when a person dies in police custody or as a result of State action.

Furthermore, however, it is incumbent on the State to properly investigate deaths. To fail to do so is itself a breach of the Convention.

The job of the police who carry out these investigations is not easy. Every police officer is trained in the giving of evidence. If they do not wish to disclose the true course of events it is easy for them to tailor their account to suit the needs of the situation.

It is a delusion promoted by crime writers to think that a witness can be “broken” in the witness box. Very rarely, a witness can be demolished, but that is not the same thing.

The obligation on the State (and the investigating detective) was summarised HERE by the House of Lords (in a case of suicide in police custody):

…it [the investigation] had to be initiated by the state itself, to be prompt and carried out with reasonable expedition, it had to be effective and conducted by a person who was independent of those implicated in the events under investigation.”

Step forward WALLANDER!

Contaminated Irish Pork: who pays?

Ireland’s pork and ham industry has been struck a stunning blow. Consumers have been told, by the Government, to avoid eating its products.

The same Government has informed the media that dioxins in food are not dangerous in small doses. The FSAI website says of dioxins:

Dioxins and PCBs are toxic chemicals that can provoke serious health effects such as cancer, hormone disruption, reduced ability to reproduce, skin toxicity and immune system disorders. Because of their serious health effects and their persistence in the environment, it is essential to minimize their release into the environment, including the establishment of emission limits for dioxins
to air, prohibition of the use of PCBs, and safe collection, storage and environmentally compatible disposal or destruction of dioxin and PCB-contaminated devices and products.”

The Government has also declined to say where, in Ireland, the problem had its source, but the media have identified one pig feed factory in Carlow as the source.

Previously, when contamination of bottled water was detected in Irish consumer supplies, the Food Safety Authority of Ireland refused to disclose the identity of the “manufacturers” that had been selling the contaminated water.

Liability arises for this mess under, possibly, six heads.

A. Each purchaser in a supply chain has a claim for breach of contract against the supplier. Thus, the shops and retailers generally in Ireland are obliged to make good the loss to the consumer by the breach of contract. That loss, currently is measured by the cost of the defective product. (The burden of proving the product is defective lies on the purchaser, but that is an issue unlikely to represent a problem). The pig farmer or farmers, in their turn, are liable to reimburse the retailers for the losses sustained by the retailers. Those losses will exceed the cost of the product sourced from the farmer. They will arise from the costs of removing the product from shelves and perhaps disposing of it. Undoubtedly the retailers will have to ensure they are in a position to establish that the product is defective; the farmer is unlikely to concede anything on that front. The jurisdiction for the proceedings will be Ireland.

B. It appears, from current reports that the source of the contamination was one pig feed factory or supplier of pig feed. The purchasing farmers will be entitled to an indemnity for their losses from that source. Those losses could be very substantial; they would include the claims of the retailers, but would extend to the continuing loss of business arising from cancelled supply contracts. The jurisdiction for the proceedings will be Ireland.

C. Each consumer who suffers ill health, physical or mental, will have a claim against the retailer under the law of product liability. These claims do not rest on an allegation of negligence; they are claims addressing a strict liability. However, here again, the consumer will have to prove the defect; it will not be assumed. The jurisdiction for the proceedings will be Ireland.

D. The pig feed supplier possibly purchased a contaminated oil to mix the feed. The supplier of that oil is liable to the pig feed supplier, assuming its intended use was disclosed. The pig feed supplier will be entitled to recover, and will recover, all its losses, assuming the solvency of the oil supplier. The jurisdiction for the proceedings will be the place where the oil supplier is located.

E. Consumers could, conceivably, make a claim against the Food Safety Authority of Ireland. The claim would be difficult to assert. See Glencar Explorations Ltd. v Mayo Council [2001] IESC. Fennelly J.stated in that case:

Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.”

F. The Authority, it would appear, was slow in ensuring the withdrawal of contaminated product from the retail supply chain. It acted before 6th December 2008, the date it received a report confirming contamination, suggesting it already knew what the problem was and/or its seriousness (probably from an Italian source). This is all of a piece with its refusal to name the suppliers of contaminated water and, now, to name the source of the contaminated pig feed. Its mission, it appears, is not the protection of people, but industry. In fact the State has a primary duty to the citizens of Ireland on such issues under the Constitution of Ireland, and not to Ireland plc, as the Government puts it. Article 40 (3) of the Constitution states:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

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