Little did I know, when I remarked HERE on the tendency for the very institution, presumed to oversee a situation, to be suborned and used directly contrary to its purpose, that prima facie evidence of such prominence would spring up so quickly HERE and HERE.
I am not alone in my perception as can be seen HERE
The medical profession has long known that it is cheaper to kill than to maim.
As a subset of those killed, it is cheaper to kill a young person or an old person than an adult with dependents.
This is the context in which to understand the behaviour of GlaxoSmithKline (“GSK”), the manufacturers of Seroxat
GSK clinical trials showed its drug Seroxat induced suicidal thoughts and behaviour in young people taking it. GSK had hoped to extend the market for its drug to young people. The drug was not approved for use other than by adults, but General Practitioners were not prohibited from prescribing the drug for young people and it was widely available on the NHS and generally. It is estimated that in 1999 32,000 children were using the drug.
To the credit of the UK Medicines and Healthcare Products Authority, it launched a four year investigation of GSK, examining a million documents before reluctantly deciding not to commence a criminal prosecution of GSK.
What of a civil action? The standard of proof in a civil action is on the balance of probabilities, not beyond a reasonable doubt. Of course loss would have to be proved. The actual loss seems to have been death (disregarding failed suicide attempts). Personal injury claims die with the victim; only the fatal injury claim survives. As seen HERE, in that eventuality rich young married stockbrokers are the major problem, not depressed children.
And what of the proof? It would be necessary to prove that Seroxat was the cause of the suicide. That would not be assumed; it would have to be actually proved. In addition the fact that GSK knew and suppressed the data showing the adverse side effects would have to be proved. They have not admitted that.
The burden of proof is probably beyond the resources of ordinary persons.
The academic world can be tough. Even at the highest level it may be necessary to explain (HERE) that, effectively, you do not have the homework done because of factors beyond your control; (âthe dog ate my homeworkâ? defence)
It would be wrong to say that the Irish legal profession (barristers) are interested in ideas. (Solicitors would never have it said of them at all). This is not to say that they, some of them, are not interested in some ideas. The idea of “justice” springs to mind as an example. But that is the very point of failure of those others not so interested. “Idea” is defined succinctly in my “Fontana Dictionary of Modern Thought” (2nd Ed.) as “The smallest unit of thought or meaning, the elementary constituent of beliefs or assertions”. This post will assume “justice” is an “idea”.
For cultural reasons, in Ireland justice is what a system of law is reputedly about, if we understand “justice” to be law as integrity.
We would not expect to find (we could be surprised) many defenders, in Ireland, of Judge Posner’s point of view.
But it is difficult not to feel that the current Irish practice on civil discovery is expressive, somehow, of an idea proper to Judge Posner, that is, an overemphasis on the economics of litigation (a selective overemphasis, it should be said, where actual judicial practice is replete with references back down to inferior courts following reversal of the original judgment).
The reputed inspiration for the current Irish practice on discovery (the rules for which practice are found in Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) was Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. in which a judge suggested the introduction of changes to the Rules of the Superior Courts in relation to discovery.
The new rules introduced an obligation, in seeking discovery to write to the opponent requesting voluntary discovery; the letter must specify the precise categories of documents required to be discovered and give reasons why those categories should be discovered.
In default of agreement, the applicant must apply to the court for an order for discovery on affidavit and aver, in the affidavit, the belief of the deponent of the necessity for the discovery, as previously set out in the letter to the opponent, and assert, on oath, the validity of the reasons for discovery of the stipulated categories.
Prior to the introduction of Statutory Instrument No. 233 of 1999, the lawyers for a litigant, required to swear an affidavit of discovery, encountered a mild dilemma; they could not impose on the opponent their client’s view of the issues in the litigation and the relevance or otherwise of any particular document to those issues. They had to adopt a broad view of relevance; it had to extend to a view which the opponent might take or hold. The deponent had to depose to such documents as were arguably relevant even if those documents damaged the case of the deponent (of course, if the document damaged the deponent’s case, it was relevant.)
Currently, it is the applicant who must establish relevance and necessity. Significantly, that burden must be discharged without the benefit of knowing what documents the opponent has let alone having inspected the opponent’s documents.
The result is to launch the applicant into an abstract exercise where he/she claims relevance and necessity without being in a position to actually prove what is averred. The best that can be hoped for is to point to some category of document, the relevance of which to the issues in the litigation, accords with the prior view of the judicial authority charged with deciding the application.
This process of voluntary request followed by application to court can be time consuming. It certainly delays the trial of the matter, but not by much more than the preceding process of discovery.
The process has one purpose; to limit the access of the applicant to the documents in the possession of the opponent.
As an idea it has severe limitations if the overriding objective of litigation is to do justice. Indeed, it is diametrically in opposition to the “justice” objective, if justice is law as integrity and not some lesser good.
Of course it is true that many documents are discovered in litigation, the need for which was dubious, but that is hardly an argument for limiting every litigant to a regime as conceived and embodied in Statutory Instrument No. 233 of 1999.
Put another way, the circumstances provoking the judge in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. amounted to an attempt to make a principle of what was only “anecdotal evidence”.
That some members of the Irish High Court currently make orders for the provision of, effectively, “general discovery” is superior anecdotal evidence to the rumination delivered in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. They prefer to do justice than to respect a dubious proposition simply because it is in a statutory instrument.
Eoin OâDell asks a valid question. What is a website for?
His context shows he feels the institutions he looks at failed to achieve what was there to be done; to demonstrate (I think he says) their raison dâetre in the particular instance that presented itself to them.
He (properly) chides them for âmissing a trickâ?.
We have immediate and available demonstrations of what a website is for as seen HERE.
On the internet, doing is demonstrating!
A website has the same purpose as a book or a magazine. Like them, a website is not an innocent production; we must read it with the possible presence of an unreliable narrator in mind.
Subject to that caveat we get, for instance, information about the planned Guantanamo trials HERE and HERE the like of which would never come out other than in a history book years after the event.
Quotes (about the forthcoming trials) like the following have an immediacy no other medium can produce:
According to Col. Morris Davis, who is a former chief prosecutor of the military commissions, it appears that the plan was made ahead of time to have no acquittals, no matter what the evidence was to reveal. General counsel William Haynes is quoted as saying (according to Col. Davis) “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? … We’ve got to have convictions.”
Modern governments have phenomenal spending power. Like a householder, they need to engage tradesmen and professionals of various types to do work the State needs done.
You want a new motorway? Here is a company to build it. You want a new harbour? Here is a company to dig it. You want a contract drafted for the motorway construction to secure your interests and ensure you get value for money? Here is the solicitor to write it for you.
These contracts are very valuable. They allow the person to whom the contract is awarded to, at the very least, pay the wages of the staff of the successful tendering company, say, during slack industry trading periods.
They also represent opportunities for pork-barrel politics. The politician who formulates and guides the policy resulting in the decision to have a motorway in the first place and then the decision as to who will get the contract, wields enormous power. The exercise of that power can secure re-election by the votes of grateful beneficiaries or the money to win those votes in an election.
Clearly, they represent opportunities for criminal activity in the form of fraud and corruption.
That aside, the State, as a major economic engine, can âdistortâ? the free market in goods and services. The European Union is professedly wedded to ensuring such markets, as are of a minimum size, will be free.
Consequently, EU member states are obliged to adjust their national law to conform to Directive 2004/18/EC intended to ensure only economic considerations (broadly defined) are the determining factor in the awarding of those public contracts which reach the threshold limit.
(HERE is a reference to an Irish-related case dealing with the obligation to advertise (or not!), that the contract is available.)
Ireland passed European Communities (Award of Public Authoritiesâ Contracts) Regulations 2006 (Statutory Instrument No. 329 of 2006) to comply with its EU obligations in this regard.
The Regulations are legally binding on the awarding authority. In Chapter 3 there is set out the basis for the awarding of the contracts:
Criteria for the award of a public contract
66. (1) A contracting authority shall, in awarding a public contract on the basis of the tender that is most economically advantageous to it, adopt criteria linked to the subject matter of the contract.
(2) Except as provided by paragraph (1), a contracting authority shall award a public contract on the basis of the lowest price.
(3) For the purpose of paragraph (1), the criteria may include (but are not limited to)â
· quality,
· price,
· technical merit,
· aesthetic and functional characteristics,
· environmental characteristics,
· running costs,
· cost-effectiveness,
· after-sales service and technical assistance, and
· delivery date and delivery period or period of completion.(4) The contracting authority shall specify in the relevant contract notice or contract documents or, in the case of a competitive dialogue, in the relevant descriptive document, the relative weighting that it gives to each of the criteria chosen to determine the most economically advantageous tender. That weighting can be expressed by providing for a range within an appropriate maximum spread.
If an unsuccessful party wishes to challenge the legality of the award of a public procurement contract it is necessary to do so as quickly as possible.
Failure to act swiftly will preclude the applicant from relief. (See HERE).
I have previously observed that the Dublin County coroner, Dr. Kieran Geraghty, shows a more practical appreciation of the steps required to deal with Clostridium difficile infections acquired in hospitals than the Minister for Health appears to be capable of.
Last November he was lamenting the situation in St. Colmcille’s hospital with respect to the deaths of patients there from Clostridium difficile infections.
Now, as shown by an Irish Times report, he is still dealing with the problem and is reduced to writing to that very same hospital urging the appointment of a microbiologist.
We must wonder what the chances of that happening are.
Many civil relationships are based on law. If you go to MacDonalds for a snack, a legal relationship underlies your visit. When you buy the snack you form a contract. When you enter the premises you get the benefit of law on occupierâs liability.
The relationship between a mortgagee and a mortgagor is replete with law to regulate the rights and obligations of the parties.
It was a strange idea, therefore, to think of divorcing a mortgage from the right to receive the mortgage repayments. This was the net effect of âpoolingâ? home mortgages and selling them as, essentially, investments.
That wheeze, as we now know, also meant the âinvestorsâ? no longer knew the details of the mortgagor and whether he/she could make the repayments. That meant that very bad credit risks could be, and were, passed on as âinvestmentsâ?, resulting in the US sub-prime mortgage crash.
The investors are now discovering that they cannot prove they âownâ? the mortgage, not being the original mortgagee and not having a legal chain of title to the mortgage.
In short, they lack the evidence showing their right to seize the secured property.
In Ireland, until relatively recently, a mortgagee would receive the title deeds and the executed mortgage in exchange for the mortgage money. It would register the mortgage and schedule the title deeds and place them in a strongroom of some kind.
Now, the practice is to have the solicitor for the mortgagor also act for the mortgagee. That solicitor will be obliged to register the mortgage and schedule the title deeds and, in due course, send them to the mortgagee.
As we now know (and always knew from experience elsewhere) what ought to happen and what actually happens are not necessarily the same thing.
That is and was foreseeable. Even the effect of Murphyâs Law would ensure a deviation from the desired outcome. There are therefore, good grounds for asking if any âinvestmentâ? managers have lost their jobs for arranging (with the assistance of solicitorsâ representatives) this unwise relationship with solicitors?
I have written on the prospect of emerging Building (Construction) disputes in the credit crunch HERE.
When a Mr. McGlinn decided to have a new house in Jersey his subsequent difficulties had little to do with a credit crunch. He was a participant in the success of The Body Shop chain and had an estimated net worth of £100 million.
Abbreviations are as follows;
McGLINN: [Employer]
HTA: [Architect]
WALTHAM: [Contractor]
As the court found in its judgment, McGlinn proceeded with the building of his £2 million house while the issue of a settled written building contract was âup in the airâ?. His new house was aptly named âMaison dâOrâ?, surely a reference, intended or not, to Neroâs âDomus Aureaâ?
The case is of interest because it examines issues relating to the division of responsibility for a building disaster. The judge remarked that the house was basically a generally sound and secure structure, yet the Plaintiff had demolished it. The contractor had gone into liquidation and the architect was the principal remaining target of the claim. The implications of that appear in the judgeâs remark;
In other words, I have endeavoured not to lose touch with reality; the mere fact that the contractor would have been found liable for an item of defective workmanship does not automatically mean that there is a sustainable case against the architect for failing properly to inspect.â?
The judgment commences and records:
This action concerns a house called ‘Maison d’Or’ that was built for the Claimant, Mr Ian McGlinn, in St Aubin, in Jersey. The house took three years to build, between January 1999 and December 2001. Following the departure of the building contractors in January 2002, when the house was substantially complete, it sat empty for the next 3 years whilst the alleged deficiencies in its design and construction were the subject of extensive investigation by a team of experts and contractors. In the early part of 2005, it was completely demolished. It was never lived in. It has not been rebuilt.â?
AND again on the subject of the contractual relations between the Plaintiff and the contractors (an important issue where a building contract had not been signed);
Despite the terms of the letter, no formal building contract was ever entered into by Mr McGlinn and Waltham, and, even more surprisingly, the letter was never updated. In August of 1999, after Waltham had been working on the site for many months, WL sent them a set of contract documentation which, in the round, duplicated in their entirety the documents sent out with the original tender enquiry. However, this contract was never signed by Waltham and sent back. Whether this was simply due to inadvertence is unlikely; there is a clear suggestion in the papers that Waltham deliberately decided that they could not sign up to this contract because they were unable to agree to a completion date for the works due to the number of variations. It is likely that this was a classic case where a contractor was allowed to start work before a contract was or could be agreed, and by the time the parties might have been in a position to formalise a binding contract, it had been overtaken by events. Mr Thornton said that it was his understanding that “the contract was not signed because it was in flux”. However, notwithstanding the absence of a contract, Waltham often wrote to HTA making claims pursuant to specific clauses of the JCT standard form, and purporting to rely on specific provisions that they considered helpful.
What, then, can be said about the precise legal relationship between Mr McGlinn and Waltham? It seems to me that it would be idle to suggest that there was no contract, given the fact that Waltham carried out £4 million worth of work at Maison d’Or and the clear warning against finding no contract at all in such circumstances from Steyn LJ (as he then was) in G Percy Trentham v Archital Luxfer [1993] 1 Lloyds Rep 25 at 27. There he made the point (with which I respectfully agree) that:
“The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often be difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised as inessential.”
It should also be noted that, although Waltham played no part in the hearing, their pleaded defence maintains the stance they adopted during the works: it assumes the existence of a binding contract, and indeed purports to rely on a number of the terms of the JCT Standard Form where they are considered to be helpful to the contractor, without ever addressing matters such as the agreed work scope or the contract completion date.
For present purposes it seems to me that Waltham and Mr McGlinn, through his agents, were agreed that, to the extent that it was consistent with the specific agreements that had been reached, the JCT Standard Form of Building Contract, 1998 Edition, would be incorporated into their contract. In addition, it seems to me that there was an agreement between Mr McGlinn and Waltham that the preliminaries and general conditions set out in Bill 1 of the Bills of Approximate Quantities would also be incorporated into their contract. That was certainly the important assumption on which WL operated. However, the fact that these JCT conditions look to have been broadly agreed as between Mr McGlinn and Waltham should not be taken to mean that the obligations of any of the professionals on this project must have been those which are envisaged to exist by the JCT Standard Form.â?
The architects, said the judge (failure to furnish a specification and to inspect being the main issues against them):
were obliged to inspect the works being constructed to their design in accordance with these principles. In respect of the structural works, and the M&E works, HTA’s obligation to inspect was more limited. It extended to ensuring that any co-ordination issues had been properly dealt with by Waltham, and it might possibly extend to any very obvious errors in the construction of these elements, but it would not be appropriate to impose upon HTA the same inspection obligation in respect of a detailed element of the work designed by, say, the engineer, as for an element of the work which they themselves designed. It is clear that in the former case, their inspection obligation must have been much less onerous. In addition, as set out in paragraph 210 above, HTA were obliged to carry out periodic inspections in respect of the interior/finishes, notwithstanding TDD’s primary design obligations.â?
Judgment was given for the Plaintiff against the architects and the consulting engineers for their failures. Those damages were in the region of £500,000. The judgment did not deal with the liability of the insolvent contractor, who, the evidence showed, had entered into a loan agreement with the architects, following the awarding of the work to the contractor, for the loan of £10,000 to them, without the knowledge of the Employer/Plaintiff.
The back news story of the Dublin Port Tunnel is not its faults; it is the role of the whistleblower/s.
It is a social good that the faults in the Tunnel (and more importantly, any attempt to ignore or conceal those faults) should become public.
Prime Time did not identify the source of the information disclosed in its TV programme. There is no need; that information could only come from within Transroute (or, possibly, but unlikely, NRA). Transroute [ironically its website is “under construction”] has, since the airing of the Prime Time programme, recognized SIPTU as the representative of Transroute’s employees working on the Tunnel. In short, the Prime Time insider/source is a Transroute employee, a member of SIPTU and a whistleblower.
The Government is formally committed to protection of whistleblowers but is stalling on its implementation in the form of a legislative compulsive-obsessive pattern of behaviour, seen HERE and HERE.
A piecemeal solution seems now the objective as can be seen HERE and HERE
Connected with this subject is the Government assault, [by the Freedom of Information (Amendment) Act 2003] on Freedom of Information principles.
For a history of FOI in Ireland (as of 2003) see HERE.
The Tunnel’s faults will be the news story when there is an accident, possibly a very serious one; whistleblowing is a mechanism to forestall such an event and is valuable for that reason.
Of one thing we can be sure; a government led by Bertie Ahern will not introduce legislative protection for whistleblowers.
(Which is not to say he is alone in his attitude).
