It seems my post on bidding for public contracts in the construction industry missed one element – bid-rigging. See HERE.
My Attorney General, Bernie
Reading of Lord Goldsmithâs interventions in the BAE scandal brings to mind Blossom Dearieâs rendition of âMy Attorney Bernieâ?.
Here are the words, but itâs essential to hear Blossom singing it to appreciate it.
My Attorney Bernie
(Words and Music by Dave Frishberg)I’m impressed, with my attorney Bernie
I’m impressed, with his influential friends
He’s got very big connections
and I follow his directions
Bernie knows his way around
and so I always do what Bernie recommends.I am blessed, with my attorney Bernie
I’m impressed, with the way he runs the store
He’s got Dodger season boxes
and an office full of foxes
It’s amazing all the different things
your average guy might need a lawyer for.[Chorus:]
Bernie tells me what to do
Bernie always lays it on the line
Bernie says we sue, we sue
Bernie says we sign… we sign.I’m in touch, with my attorney Bernie
In a clutch, he can speed right to the scene
and if I’m locked up in the jail
with just one phone call for my bail
he said to call his club collect
or deal directly with his answering machineWhen I dine, with my attorney Bernie
He buys wine, from the rare imported rack
That’s cause Bernie is a purist
not your polyester tourist
Bernie waves the glass around awhile
then takes a sip and always sends it back[Chorus:]
Bernie tells me what to do
Bernie always lays it on the line
Bernie says we sue, we sue
Bernie says we sign… we sign.I admire, my attorney Bernie
I admire, any guy who knows his stuff
Sure we blew a couple ventures
with a counterfeit debenture
But you win a few, you lose a few
and like Bernie says you keep on hanging toughThanks to you, my attorney Bernie
Thanks to you, I’m considered well-to-do
Sure I made out like a bandit
Just exactly like you planned it
But like Murray my accountant
told me yesterday, I owe it all to you.[Chorus]
On the dotted line.
Oddly, Lord Goldsmith, former UK Attorney General, denies complicity (he didnât eschew that word) in the concealment of facts from an OECD corruption investigation. He claims the head of the Serious Fraud Office did that bit.
Lord Goldsmith, the legal advisor to the UK government took one view of the payment of huge bribes to Prince Bandar of Saudi Arabia, The Corner House took another and the UK High Court agreed with The Corner House.
Lord Goldsmithâs successor is reportedly fighting the good fight, which the Independent coyly reports thus:
The plan caused disquiet in the Cabinet but Baroness Scotland of Asthal, the current Attorney General, fought off suggestions that her powers should be limited.â?
What she is resisting is the curtailment of a claimed ârightâ? to ensure that no effective investigation and consequently no prosecution of corrupt payments by BAE will take place in the future.
Being Attorney General seems to involve a person in surprising things.
At Swim Two Coves
I have just learned of Fuzzy Logic, bringing me to read the Wikipedia article on Bart Kosko and am struck by the familiarity of it all. Surely Bart Kosko is a character created by Flann OâBrien?
Evidence?
Here it is:
He is a leading researcher of fuzzy logic, neural networks, and noise, and author of several trade books and textbooks on these and related subjects..â?
Kosko has a distinctive minimalist prose style, not even using commas in his last several books.â?
Kosko holds degrees in philosophy, economics, mathematics, electrical engineering, and law. He is an attorney licensed in California and federal court..â?
â¦at age 18, he won a scholarship in music composition to USC based on his orchestral âOverture to the Count of Monte Cristo,â? which he wrote the year before..â?
â¦he has published essays on âPalestinian vouchersâ? [6] and the experience of taking the infamous California bar examination..â?
In fuzzy logic, he introduced fuzzy cognitive maps, fuzzy subsethood, additive fuzzy systems, fuzzy approximation theorems, optimal fuzzy rules, fuzzy associative memories, various neural-based adaptive fuzzy systems, ratio measures of fuzziness, the shape of fuzzy sets, the conditional variance of fuzzy systems , and the geometric view of (finite) fuzzy sets as points in hypercubes and its relationship to the on-going debate of fuzziness versus probability.â?
I do not wish to be cruel or unfair to Bart Kosko, and plead doubt as to his existence to justify these remarks about him.
Furthermore, his exotic character is overshadowed by his area of expertise. Here is a quote on the subject:
Fuzzy logic in the narrow sense is symbolic logic with a comparative notion of truth developed fully in the spirit of classical logic (syntax, semantics, axiomatization, truth-preserving deduction, completeness, etc.; both propositional and predicate logic). It is a branch of many-valued logic based on the paradigm of inference under vagueness.â?
We are at the boundary where life imitates art.
I may come to regret this post; the sheer brass neck of some Irish legal practitioners in advancing preposterous positions will now have a whole field of study to keep them going for, oh, twenty years.
Lazarus Ltd.
On occasions where a claim or claims are outstanding or launched against a company and the company is or has been put into liquidation and the company is dissolved before the resolution of the claims it is possible to restore the company to the Companies Register to effect recovery of the claim against the company.
Alternatively a different approach may be taken.
When a company goes into liquidation, the creditors’ rightful claims against the company persist. The company loses its beneficial ownership of the assets. Reciprocally and generally, a creditor does not have a claim against any particular part of the assets of the company.
However, the liquidator owes the creditors a duty to, generally, find and get in the assets of the company. The liquidator also is obliged to notify the creditors of the company of the fact of liquidation and to seek out the creditors. He cannot just wait for them to contact him. The duty of the liquidator is a statutory duty. The records of the company will be the source of information regarding claims against the company.
A liquidator is an officer of the company.
If a creditor suffers loss as a result of the breach of statutory duty by the liquidator in administering the liquidation, the creditor has a personal claim against the liquidator in damages for the breach of statutory duty. (Pulsford v Devenish [1903] 2 Ch 624 and James Smith & Sons (Norwood) Ltd v Goodman [1936] Ch 216 (CA)).
Que sera, sera
Irish lawyers, arguably, are in denial. They have done little or nothing in response to the introduction of the Civil Procedure Rules (âCPRâ?) in the UK.
Perhaps we should continue as we are. If so, and if that has been decided, it was decided in some forum to which I, for example, have no access, even to observe. Perhaps the decision has not been made. What should we decide?
Well, it is an attractive proposal that the overriding objective of CPR is declared to be:
â¦a new procedural code with the overriding objective of enabling the court to deal with cases justly.â?
It is hard to think we will meet dissent (open, at any rate) to that. But we will. One manâs âjusticeâ? is another manâs âinjusticeâ?.
In anticipation of argument on the point the framers of the CPR elaborated on the word âjustlyâ? as follows:
1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable â
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate â
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the courtâs resources, while taking into account the need to allot resources to other cases.â
There are serious problems with this. It opens an ocean of opportunities for the application of individual, personal judgment. For many, that would imply not adherence to a Rule of Law but to the exercise of potential, if not actual, arbitrary power.
The issue is very important. According to John Rawls;
Justice is the first virtue of social institutions, as truth is of systems of thought.”
Even to debate these issues is dangerous. As a consequence of the current dominance of the Executive over the Legislature in Ireland, there is no assured safe forum to hold a debate. It would be very easy to hijack the debate and use it as a cover to introduce something similar to the deplorable idea that the Irish Commercial Court should have a jurisdiction over âJudicial Reviewâ? issues.
That idea has become a reality and is embodied in Statutory Instrument No. 2 of 2004. (Consequently, âJudicial Reviewâ? is within the jurisiction of the Commercial Court.) The London Commercial Court has no such jurisdiction.
There was no debate in any forum known to me prior to the introduction of this profound, far-reaching, idea.
It could be objected that the thesis is flawed; why should Ireland be concerned by or with the UK procedures?
The answer is found in the fact that we still look to the UK case law as a source of precedent. UK cases have no binding force in Ireland, but they do have strong persuasive power. If for nothing else this happens because a particular set of circumstances is more likely to occur first in a more populous place (the UK) than here. Therefore, the resolution of any problem may already have been formulated there when it needs to be applied here.
Consequently, it is a practical necessity (from the Irish point of view) that the basis for judicial decision in the two jurisdictions be similar.
Before CPR the UK rules were published in âThe White Bookâ?. This, a much larger volume than the Irish âRules of the Superior Courtsâ? was, conceptually like our RSC.
But that is no more.
What is to be done? That is the subject of the missing debate.
I would like to hear that debate and would be particularly attentive to proposals directed to;
ensuring that the parties are on an equal footing;”
A life of the mind
Here in McGarr Solicitors (for inhabitants of the USA, a solicitor is a lawyer), we spell “intellectual” with three els. We think to spell it “intelectual”, as some colleagues have (and do), is wrong.
I was once part of the Robert Maxwell publishing empire; great care was taken then to ensure errors were weeded out before they reached the public. An author’s work was brought into the printing process by being fully re-typed. Then it was composed and galley proofs were printed. A proof-reader would then read it, checking for errors by the author and the printers. Spelling errors would be corrected, but printing errors might be more difficult to spot. We would aspire to notice a full stop of a different typeface in the text. (Not impossible, especially if the typeface was at 24 point.)
I am, consequently, indulgent of errors in an age where some social/management structures have become flat (or even, have been flattened!). Also some words are very difficult to spell, like “independent” (or is that “independant”?). However, when you choose to use certain big words like “intellectual”, you must get them right. Would anyone have paid much attention, say, if Jean-Paul Sartre had written;
We intelectuals must stand together on this issue!
Accordingly, do not write (or leave uncorrected) “…we…specialise in intelectual property law”.
Judge Roy Bean & friends
Regrettably, power drives the Judicial system, as it does the Executive. How else to explain the case of Mr. Goldstein?
Mr. Goldstein was (is) an Orthodox jew in Manchester. He wrote a cheque in favour of his business colleague in London, to whom he owed money. He had owed the money for some time and was, on one valid view, making payment late.
He put the cheque in an envelope. He also put in some table salt. The salt was a coded joke and was a reference to the fact that the payment was late.
In the postal system the envelope leaked; the leaking salt was discovered by a worker who handled it. This frightened the worker whose managers closed the postal unit until the nature of the salt was discovered. (Inspection revealed its nature). (Emphasis was placed on the fact that a system of a daily double postal delivery was reduced to one delivery that day, discommoding the public).
Mr. Goldstein was charged on indictment and was convicted. Conviction was affirmed in the Court of Appeal.
Luckily for Mr. Goldstein he had two assets; the will and opportunity to keep fighting and a good lawyer.
He appealed to the House of Lords where he was vindicated and his conviction was quashed.
The judgment is of interest to lawyers; it clarifies the crime of public nuisance. But the court went further. It pointed out that, on the known facts, Mr. Goldstein had committed no crime.
A calm, fair-minded person ought to have been able to see this; Mr. Goldstein had no Mens Rea,
no malicious intent. Why enclose a piece of paper with your name on it, in the envelope with the salt, if the intention was to cause a scare? (Of course, it was not incumbent on Mr. Goldstein to prove he had no such intent; it was for the prosecution to prove he did).
To explain what happened to Mr. Goldstein it is necessary to see the legal system as, in single instances, (that is, the individual cases) an expression of a process. The process is driven by power. The people who start and operate the process want it to have an outcome. The process can bring about the equivalent of âtype-castingâ? in the film and theatrical worlds. An actor who plays the villain finds only villainous roles are offered to him/her. In a criminal trial the role of the villain is always allocated to the accused, it seems.
The system (the operators) wants a conviction more than it wants an acquittal.
Swinging in the wind
Litigation is adversarial. That means, at bottom it is a contest. If winning the contest is important, which it normally is, it is dangerous to engage in the process without proper resources.
To lack legal representation in your proceedings is, therefore, a crisis. That’s a crisis that may be general, as seen HERE.
Or it may be a personal, self-inflicted crisis as seen in the case of Heather Mills in her self-representation in her divorce action with Paul McCartney.
In fact a judicial system needs lawyers as much as any litigant. The judiciary may admit to that need by recognising the value of a McKenzie Friend, or by engaging in a substantial public examination of the alleged necessity of imposing legal representation on a litigant, Ahmad Edwards, as seen HERE.
(In fact the focus in the Edwards case was on preventing him from representing himself.)
In that context it is a shocking thing for a litigant to find that, after insuring himself/herself against liability for claims in, say, negligence, he/she is obliged to defend the proceedings personally.
Alternatively, having insured his/her property and paid the premium, it is galling to be refused the indemnity against loss contracted for and perhaps be forced to undertake long and dangerous proceedings in court to get the benefits contracted and paid for as happened HERE.
Where an insurer accepts its obligations under such a policy it normally assumes responsibility for the conduct of the defence of the action. (In fact, it will insist on assuming control; if the plaintiff is successful it is the insurer who will lose ultimately).
An insured person, nevertheless, should keep in mind that he/she is the defendant and should monitor the progress and conduct of such proceedings. Persons holding professional indemnity insurance tend to be sophisticated consumers of legal services and are usually very keen to monitor proceedings invoking a right to indemnity under such policies. They know that the proceedings are important to them, but they are not alone in such interest. Every insured should adopt the same interest.
Class Actions?
In Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. a judge opined that the Rules of the Superior Courts should be changed to, effectively, reverse the burden on applications for Discovery in the Superior courts.
Within the year, that was done by the introduction of Statutory Instrument No. 233 of 1999 (Rules of the Superior Courts (No. 2) (Discovery)).
In 2005 the Law Reform Commission (LRC 76-2005) recommended the following:
2. The Commission recommends that a formal procedural structure to be set out in Rules of Court be introduced to deal with instances of multi-party litigation.
3. The Commission recommends that reform of current procedures to deal with multi-party litigation should be based on the following principles: procedural fairness for the plaintiff and defendant; procedural efficiency; and access to justice.
4. The Commission recommends that the proposed procedure for dealing with multi-part litigation shall be called a Multi-Party Action (MPA).
To date, nothing has happened.
A recommendation from the Law Reform Commission carries only moral or intellectual authority. In the absence of political leadership (or judicial muscle, which is the same thing), it is possible to ignore the work of the Commission.
A Multi-Party Action (MPA) would permit the taking of representative legal proceedings where large numbers of persons had suffered from, effectively, the one wrong. The class of wronged persons would be the beneficiaries of the judgment and the judgment would reflect the totality of the loss of the class.
Currently there is no procedure to achieve this result. This state of affairs is favourable to wrongdoers, especially corporate wrongdoers. To permit class actions is to admit that, often, individuals can have a reasonable prospect of justice against a modern corporation, or the state, only through the action of a collective.
It may be that to permit the introduction of class actions is in opposition to the zeitgeist in Ireland.
That zeitgeist is expressed in the benefits conferred on corporate defendants and the state by Statutory Instrument No. 233 of 1999.
It is to defendants of that ilk that the current rules on discovery are of benefit. They are the paradigm producers of paper, paper which can be evidence, and often the only evidence, of wrongdoing by the corporate defendant.
Undoubtedly, the rules relating to discovery will require to be re-visited to allow MPAs to function correctly.