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A finger in the dike

I have previously warned of the need for vigilence in seeking indemnity cover from your own insurance company HERE.

Where you are the recipient of a claim, one way or another, you will find yourself, almost invariably, in litigation.

It is better that that litigation is only the proceedings taken against you. The alternative is that you find yourself in those proceedings and a new second set of proceedings in which you are the plaintiff and “your” erstwhile insurer is the defendant.

This can come about because your insurer declines to indemnify you for some alleged failure On your part as happened HERE.

Of course you could compound your difficulties yourself by failing to press your claim to indemnity in arbitration, as happened HERE.

The plaintiffs in these proceedings knew of a claim against them not later than 5th December, 2002. Their insurer knew of the claim prior to 20th March, 2003. It declined to indemnify. Only by letter dated 22nd December, 2005 did the plaintiffs attempt to refer the failure of the insurer to indemnify them to arbitration. In the letter the claimants’ solicitors informed the respondent that the claimants would be invoking the arbitration clause in the policy, nominated three persons who might act as arbitrator and enclosed a draft submission to arbitration.

Under the policy, the insured had one year to invoke the arbitration clause, whereupon the claim was deemed to have been abandoned. In the case the plaintiffs were very late.

The court extended the time to refer the matter to arbitration but subject to:

…the applicant will be responsible for the costs of this motion and will also be responsible for the costs of the arbitration even if successful therein.”

If you must shoot yourself, be sure to shoot yourself in the most painful part of your anatomy!

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 (20th November 2008)

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 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.

4. 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.

5. The Minister, Ireland and the AG assert that these are “public law issues”. They assert that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They assert that, that being so, those claims of the defendants are late. They assert 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.

6. The defendants deny they are confined by the provisions of Order 84 and/or its “time limits”. They say 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 say, consequently, that the counterclaim should proceed to a full hearing on its merits.

7. Judgment has been reserved.

Causation in Medical Negligence

A Plaintiff in a personal injury action has the burden of proving that the negligence of the Defendant caused the Plaintiff’s injuries.

In a road traffic accident claim this burden may be easily borne or discharged; prove the circumstances of the accident and then the fact that the injuries were sustained in the accident.

In a medical negligence action, in order to fix the Defendant with responsibility, the Plaintiff may have to prove that his illness (his medical condition) was not the cause of his injuries.

In practice this may require the Plaintiff to prove, in detail, events which, in other circumstances, he would not be expected to address with such precision.

I have adverted to this previously as seen HERE and HERE.

Even if the injured Plaintiff was not “ill” (as in a maternity unit), the Defendant will be able to cite many natural processes to explain the Plaintiff’s injury. Consequently, the Plaintiff must explain away many things.

In short, in a medical negligence action the Plaintiff will not find many “facts” which are deemed self-evident.

I, Me, Myself

The readers of this blog are self-selecting and would be very unlikely to mispronounce “crisps”, as in; “A packet of cheese and onion crips, please”.

However, they might say “…between you and I,…” and they would be wrong.

I am conscious of the need for sub-editors, but nowadays we have to be our own sub-editors. This post is intended to help with one particular issue, the use of “I” and “me”.

When you are the subject of a statement or sentence, you use “I”; when you are the object of a statement or sentence, you use “me”.

Find the verb and decide; is it acting on “you” or are “you” the person acting?

Here are some examples. The verb is “threaten”; who is doing the threatening and who is being threatened?:

“Brian Cowen threatened me” Correct. I am the object.

“Brian Cowen threatened I” . Incorrect. I am the object.

“I threatened Brian Cowen” . Correct. I am the subject.

“Me threatened Brian Cowen”. Incorrect. I am the subject.

“My wife and I threatened Brian Cowen”. Correct. I (with my wife) am the compound subject.

“My wife and me threatened Brian Cowen”. Incorrect. I (with my wife) am the compound subject.

“Brian Cowen threatened my wife and me..” Correct. I (with my wife) am the compound object.

“Brian Cowen threatened my wife and I..” Incorrect. I (with my wife) am the compound object.

Get the first four examples right and the compound examples will fall more readily into place.

Where you are part of a compound subject or object, it is courteous to place the reference to “you” last; “Bill and I…” not “I and Bill…”; “My wife and I…” not “I and my wife…”; or “…Bill and me” not “…me and Bill”.

“Myself” is a reflexive pronoun. A reflexive pronoun is used when the subject and the object of the verb are the same.

“I promised myself”

It can also be used for emphasis; “I don’t see it, myself”. An interesting use for this purpose is “Myself I shall adore” from Handel’s work “Semele“.

However, “myself” is not a substitute for “I” or “me”; you ought not to say “Myself and my dog…” or My dog and myself…”

Cerebral Palsy claims * : The Statute of Limitations for injuries at birth

egg timer image to illustrate article on Cerebral palsy claims statute of limitations

Cerebral Palsy is not a disease; it is a condition. For cerebral palsy claims *, statute of limitations time limits are particularly significant to consider. If an infant has been injured during the court of birth, and as the result of some medical negligence*, it will be for the infant’s parents to take whatever claim is appropriate on their child’s behalf.

That negligence may have been an oversight in a maternity unit lasting, say, 30 minutes.

It is the new-born infant that is or will be injured by the oversight. Under the Statute of Limitations, time does not begin to run against the injured infant until the infant reaches its majority (18 years of age).

Thereafter, under current law, the infant has two years within which to issue proceedings in court. That is, until their 20th birthday. After that, the delay in issuing proceedings is, in normal circumstances, a full defence to any claim. The time cannot be stopped by an application to the PIAB Injuries Board, in the manner of other forms of personal injury*, as it is one which is specifically exempted from the PIAB Injuries Board’s purview.

In the event that such proceedings are issued and served, a defendant will typically apply to court to strike out the proceedings.

The defendant will not necessarily succeed.

Time only runs against a plaintiff who knows he/she has been injured (or could reasonably ascertain he/she has been injured) AND knows who or what has injured him/her (or could reasonably ascertain who or what has injured him/her).

A plaintiff whose hospital records show no evidence of error, effectively does not know who or what has injured him/her.

In Gough v Neary & Anor IESC [2003], Geoghegan J stated:

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.”

It is, therefore, critical that the hospital records be accurate and truthful. If they are not, and the plaintiff can show this, (the burden of proof will lie on the plaintiff), time will not begin to run until the plaintiff discovers the truth.

Re-Fried Beans

There are some State secrets that ought not to be revealed. They are too awful. I have referred previously, as seen HERE, to the impracticality of returning to the Oireachtas to find out what meaning was intended in any particular piece of legislation.

The impracticality is even worse, if it is proposed to return to a member of the Oireachtas to ask the member what he/she meant. The utterances of members are recorded (this can be seen in the televised proceedings on RTE). Then they are supposedly transcribed into a written record of what was said.

What actually happens is that a team of civil servants re-writes, polishes, and re-formulates what the member said. The effect is to make the member appear to have been speaking received english (and therefore, capable of doing so; a dubious proposition in many cases).

This fraud is not peculiar to Ireland; see HERE for an instance in the House of Commons.

Business is Business

With the Irish economy in retreat (recession), lawyers will still find a need for their services.

In truth, there is probably a large core of business for Irish lawyers, regardless of the state of the economy. (And that takes no account of the possibility of duplicating the activities of Allen & Overy).

The real issue is not the availability of work, but the financing of the work.

Ireland has seriously handicapped its legal profession, relative to the UK. There, it is possible, under Conditional Fee Agreements (“CFAs”), to recover double (say) the standard fee in court taxation if the lawyers have agreed to act on a “no win, no fee” basis.

In Ireland no such official arrangement exists.

Of course the real loser from the State’s failure is the Irish citizen. At very little cost to the State, it could empower victims to defend their interests and vindicate their rights in fields as diverse as defamation and personal injury litigation.

The legal basis, in the UK, for CFAs is s.58 of the Courts and Legal Services Act 1990, as substituted by s.27(1) of the Access to Justice Act 1999, the Conditional Fee Agreements Regulations 2000 (SI 2000 No 692), amended by the Conditional Fee Agreement (Miscellaneous Amendments) Regulations (SI 2003 No 1240) and the Conditional Fee Agreement (Revocation) Regulations 2005 (SI 2005 No 2305).

Under the Regulations, the plaintiff client will become liable for fees only if he/she:

a) fails to co-operate with the legal representative;

b) fails to attend any medical or expert examination or court hearing which the legal representative reasonably requests him to attend;

c) fails to give necessary instructions to the legal representative; or

d) withdraws instructions from the legal representative.

This failure by the Irish State is particularly glaring in the light of the fact that there are, currently, proceedings at hearing, in Dublin, intermittently, which potentially, if not actually, are financed by CFAs.

Those proceedings are the Omagh civil action arising out of the bombing of Omagh.

Why should Omagh be different to Dublin?

Hold Your Horses!

It frequently happens that a Plaintiff is driven by necessity to apply for injunctive relief to the court before the trial of the Plaintiff’s action.

Such applications are heard on Motion, grounded by Affidavit. These applications are fraught with stress and uncertainty.

I have adverted HERE and HERE to the the undesirability of deciding on the liability for costs for such applications at the time of the application. Traditionally, the court reserved that decision to the hearing of the action.

This was a fair and sensible attitude. At the full hearing the trial judge would have been presented with, presumably, all the available evidence. The verdict of the trial judge might, or might not, correspond to the outcome of the application for the injunction. In short, the successful party on the application for interlocutory injunction might not be the ultimate successful party at the trial.

In Chieftain Construction & Anor v John Ryan & Ors. [2008] IEHC, Edwards J. refused an injunction to the Plaintiff applicants and invited submissions on the costs of the interlocutory application from the parties.

In his judgement the judge adverted to the difficulties inherent in the court, at an interlocutory application, engaging in a consideration of the relative strengths of the parties’ cases. He said:

The Court is cogniscent that one of the principal arguments against a judge engaging with any question of the strength of the case at the interlocutory stage is that in many cases the evidence is incomplete. There may be conflicts in the evidence that are incapable of resolution on affidavits alone, and which can only be resolved in the course of a plenary hearing where evidence is tested in the crucible of cross examination.”

In the course of this exercise he quoted Laffoy J. in the case of Symonds Cider v. Showerings (Ireland) Limited [1997] 1 I.L.R.M 481 where she stated:

I am satisfied that, having regard to the decision of the Supreme Court in Westman Holdings Ltd v. McCormack, it is not open to this Court, assuming the plaintiff has established that there is a fair and bona fide question to be tried, to express any view on the strength of the contending submissions in this case. In any event, even if it were open to the court at this interlocutory stage to evaluate the likely outcome of the trial, in my view it would be impossible to do so in this matter, which is bristling with difficult issues of fact arising from conflicting affidavit evidence and difficult issues of law.�?

Because of the clarity of the net point on which the Plaintiff’s case rested (in the opinion of the judge), he went on, in the case, to assess the relative strength of the Plaintiff’s case to that of the Defendants.

The unsuccessful Plaintiffs were hit with a double whammy. Their fundamental case was assessed on the basis of affidavit on an interlocutory application and then the question of the payment of costs of the unsuccessful application was tabled for consideration.

In the particular case this might not be unjust. But if such Plaintiffs are wrong, they will, in due course, be brought to book ultimately at trial or by seeking to discontinue (by agreement with the opposing party or the court) on terms.

To deprecate their case and force the issue of the payment of costs on the application seems unnecessarily abrupt.

An Inspector calls

The UK Law Society has had a long history. It is now at a new low.

Having been cavalier about its “regulatory” function, it was forced to cede that responsibility to the Legal Services Board. The Board is one of those independent bodies to which there is always appended the word “independent” when it is mentioned by its spokespersons and mentors.

Verbal tics like that are the speech equivalent of body language signals.

Now the Law Society’s real owners are going to abandon it. I mean the big City firms. They do not want to be subject to a messy regime of regulation; they do not even want to be in charge of it.

They want their own system of regulation (which is not to say they never had that before).

In the UK the possibility of partnerships between solicitors and barristers is looming. The UK Bar is what is known as a sophisticated user of legal services. It knows full well the real system by which the professions are operated; it wants no “regulation” from the Law Society or its members, over members of the Bar.

Now the Law Society has “commissioned” a review of things by Lord Hunt of Wirral. He happens to be a solicitor and a former member of the Cabinets of Mrs. Thatcher and John Major.

He has, it seems, announced his brief thus:

Should the system of regulation be the same for a High Street solicitor as for a medium-size law firm? Should it be the same for a one-person practice as for a global law firm?”

Peculiarly, for a solicitor, he does not seem to have noticed the question has been asked and answered:

Yes”

Why should a partner in a global law firm who throws ashtrays at his staff not be brought to book like anyone else?

Why should he not be brought to account if he steals the money of a client?

What Lord Hunt probably means is that the Legal Services Board has not got the skill, experience or facilities to delve into the accounts of a big firm.

He probably already knows that, before all those features, there must come the will to act. That will has always been absent.

“Call me Student X”

In Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) V Van Colle [2008], the House of Lords has denied (3 to 2) that there is a civil legal right against the police for failing to take action to prevent criminal violence to the Plaintiff.

The leading case is Osman v United Kingdom (1998) 29 EHRR 245.

In that case the Plaintiff/Complainant was the widow of Ali Osman, and the mother of Ahmet Osman. Mr. Ali Osman was shot dead and Ahmet was wounded by Ahmet’s former teacher. The event was preceded by a history of deviant behaviour by the teacher towards Ahmet which was investigated by Ahmet’s head teacher and reported to the police. The ineffective police response was to “lay an information of careless driving” against the teacher.

In Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) V Van Colle [2008] there were two instances; in the first (Van Colle) case, Giles van Colle was threatened by and ultimately murdered by a man named Brougham. In the second case Stephen Smith was threatened by his former partner who subsequently attacked him with a claw hammer, seriously injuring him. The threats in both cases had been reported to the police who did nothing effective.

(Strangely, such failures may be common).

The quality of Lord Bingham’s minority judgment is a predictor that the issue will return and be reversed in the future.

He quotes Lord Keith in Hill v Chief Constable of West Yorkshire [1989] AC 53 as saying;

There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg v Dytham [1979] QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.”

He went on to say:

Considerable argument was devoted to exploration of the relationship between rights arising under the Convention (in particular, the article 2 right relied on in Van Colle) and rights and duties arising at common law. Should these two regimes remain entirely separate, or should the common law be developed to absorb Convention rights? I do not think that there is a simple, universally applicable answer. It seems to me clear, on the one hand, that the existence of a Convention right cannot call for instant manufacture of a corresponding common law right where none exists: see Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406.”

And again;

If, as other cases suggest, it is necessary for responsibility to be assumed for a duty of care to arise, then in my opinion the police assumed responsibility by visiting Mr Smith, initiating what was regarded by them as an investigation, assuring him that the investigation was progressing well and inviting him to call 999 if he was concerned for his safety. Public policy points strongly towards imposition of a duty of care: Mr Smith approached a professional force having a special skill in the assessment of criminal risk and the investigation of crime, a professional force whose main public function is to maintain the Queen’s peace, prevent crime and apprehend criminals. He was entitled to look to the police for protection and they, in my opinion, owed him a duty to take reasonable steps to assess the threat to him and, if appropriate, take reasonable steps to prevent it.”

What of a police force which pursues other agendas (“political”) rather than the enforcement of the law? In other words, where they are not so much negligent as complicit?

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