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In Camera

Under Article 34 (1) of the Constitution of Ireland, it is provided:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

Hearings not so held are “privateâ€? and are said to be held “in cameraâ€?. (“Camera is the Latin for “roomâ€?).
The most common proceeding heard in camera is the hearing of a family law matter. That aside, it is denied to almost every other litigant that the proceedings be heard in private.

It is a shock therefore to review a hearing that was not only heard in private, but one of the parties was excluded from part of the proceedings.

This happened in Minister for Justice, Equality and Law Reform v Information Commissioner and Notice Party [2003] IEHC

The Information Commissioner made a ruling against the Minister that he disclose certain documents to the Notice Party. The Minister appealed pursuant to Section 42 of the Freedom of Information Act 1997

On a Motion for Directions the High Court ordered the hearing to be held in camera in order to ensure there would be no disclosure of material to the Notice Party or the public. The court also ordered that the identity of the Notice Party not be disclosed, that the material or records not be disclosed to the Notice Party and that the Notice Party, to that end, not get copies of the affidavits and exhibits exchanged between the Minister and the Commissioner.

The Minister and the Commissioner exchanged full submissions; the Notice Party did not get these.

Essentially, the court judgement consisted of a bare finding in favour of the Minister, on grounds contained in the secret submissions of the Minister.

The Duck of Death

In “Unforgivenâ€? Gene Hackman’s character, “Little Billâ€? taunts Richard Harris’ character (“English Bobâ€?) with the true story of how Bob killed “Two Gunâ€?. Two Gun, on seeing the drunken Bob approaching him in the saloon, drew too fast and shot himself in the foot. (Little Bill insists on referring to Bob as the “Duck of Deathâ€?). The Duck then shot Two Gun while he was incapacitated.

Improbable as it would seem, it is possible to find analogy for Two Gun’s mistake and predicament in conveyancing. (“Conveyancingâ€? is the lawyers’ term for the process of buying and transferring ownership of land and buildings).

Contracts for conveyance normally provide for a date to close the transaction. This date is, usually, aspirational.

On the passing of the closing date,, a party wishing to compel the other party to close, serves a Notice to Complete. This Notice will expressly make time of the essence. This means that the recipient of the Notice will be in default (have breached the contract) if, on the expiry of the period of time limited in the Notice for completion, the conveyance is not closed.

The Supreme Court (on appeal from the High Court) in Tyndarius Ltd. v O’Mahony [2003] IESC decided that a party serving such a Notice while himself not “ready willing and able to closeâ€? had committed a repudiatory breach of contract and that the other party (the defaulting recipient of the Notice) was entitled to recover his deposit.

Don’t move too soon!

Penalties for Fraud (less than obvious)

The London High Court has clarified some matters relating to fraud, and conspiracy to defraud, in Zambia v Meer Care and Desai & Ors. [2007] EWHC 952 (Ch) (04 May 2007)
The court referred to the law on the issues laid down in Kuwait Airways Corporation v Iraqi Airways Corporation (nos 4 and 5) [2002] 2 AC 883.

In the instant case the African state of Zambia was the plaintiff. The defendants were numerous and included leading members of the former government of Zambia. The defendants had looted the state of Zambia and the issues were conspiracy, breach of fiduciary duty, dishonest assistance and limitation period relating to same. Meer Care and Desai were a firm of solicitors in London, through whose client account the African defendants had chanelled much of the stolen property.

The court said this in relation to the knowledge of a conspirator:

The next point to observe is that if a party is found to be a conspirator he does not need to be aware of all the circumstances of each wrongful act done pursuant to that conspiracy but he is jointly and severally liable in damages for all losses caused by the conspiracy to which he is a party.

In relation to a cover up the court stated:

It is possible that a party can withdraw from a conspiracy but they may still be a conspirator because they participate in a cover up

(Needless to say, to engage in a cover up of a conspiracy is to join the conspiracy).

Because firms of solicitors in the UK and Ireland are all firms and incorporation as a company is not permitted, the court made the following remark:

There are other further unfortunate consequences. It is not said that ND or BBT had any active role in any alleged conspiracy or were dishonest in any way. Nevertheless if I find respectively that IM and BT were parties to the conspiracy and those acts were done as partners respectively in MCD and CM respectively they too are potentially liable for the sum of $25,754,316.

Predictably, the defendants pleaded the Statute of Limitations, to which the court replied:

How can the Republic take any steps when all of its senior officials are stealing from it and concealing that? The Republic does not know of the fraud because its senior officials conceal it. It cannot therefore have any knowledge because it has no knowledge because the officials are concealing the facts from it. It does not “learn about it” until it is properly informed by the people who are in a position so to inform it. That occurs when President Mwanawasa SC takes office.

(President Mwanawasa SC was the honest successor to the (former) presidential defendant).

It will be seen that, for partnerships, the effects on a partner of a conspiracy to which his/her partner is a party are considerable. Time does not run until the conspiracy is discovered or can be discovered; even if the “innocent” party was not part of the conspiracy, s/he will be liable under partnership law for the actions of his/her partner.

To cover up a conspiracy is to join it.

Patient Mishaps

The health care systems of Ireland and Britain are comparable in terms of design structure. They are also comparable in terms of procedures.

It is instructive and chastening therefore to find this from the National Patient Safety Agency in the UK:

Between February 2006 and January 2007, the NPSA received 24, 382 reports of patients being mismatched with their care. It is estimated that more than 2,900 of these related to wristbands and their use. Standardising the design of patient wristbands, the information on them, and the processes used to produce and check them, will improve patient safety.

What this means is that 24,382 patients received the wrong treatment. “Treatmentâ€? extends to operations. The patient might therefore have been operated on under the mistaken impression that he/she was somebody else.

These cases are the mistaken identity cases attributable to error connected to wristbands. It does not relate to all such errors.

Ireland does not have a structure like the National Patient Safety Agency,

Irredentist PIAB

The Personal Injuries Assessment Board (PIAB) was inefficient, the Minister for Enterprise Trade and Employment has implied.

Of course he may have been guilty of a solecism when he declared the purpose of his new Act, amending the Personal Injuries Assessment Board Act 2003, was to ensure the efficiency of PIAB.

He probably meant he wanted to ensure its effectiveness. To do this he has placed a further trip wire in the path of injured persons seeking compensation for their personal injuries.

Now, if an injured person declines to accept the judgment of PIAB as to the correct and fair value to be placed on the personal injury and, instead, seeks to have that assessment made in open court following a trial, the Minister has provided that s/he will not be awarded legal costs against the unsuccessful defendant if the court award is less than the PIAB assessment.

What are the problems (statutorily enforced) that the Government has imposed on such plaintiffs?

1. Persons injured (bodily or mentally) by the wrongful action or inaction of another have been deprived of their constitutional right to apply to the courts to adjudicate on their entitlements to compensation for such injury without first submitting their claim to PIAB for an assessment by it.

2. Those persons must bear the cost (to them) of such submission and assessment.

3. Such injured persons now have just two years to commence legal proceedings against the wrongdoer who caused the injury. The claim will be statute barred on the expiry of this time. Previously it was three years, itself a tight deadline.

4. If a letter of claim is not written to the proposed defendant (the wrongdoer causing the personal injury) within two months of the incident causing the injury, the court may be asked (by the wrongdoer; who else?) to deprive the injured person of some or all of his/her accrued legal costs. (The general rule, still extant for property developers, banks, insurance companies etc., is that “costs follow the causeâ€? – the loser pays). In short, having been found guilty of the cited wrongdoing, the defendant will ask the assistance of the court to avoid paying some or all of the costs incurred by the plaintiff in bringing the claim.

5. A personal injury plaintiff must swear an affidavit verifying the truth of the facts of the personal injury summons issued by the plaintiff.

6. The plaintiff is now obliged to express his/her claim by the issue of a personal injury summons. The form of this dictates that the fullest details of the claim must be pleaded (and therefore be ascertained and known) within the two year limitation period.

7. If the plaintiff, although successful in the litigation, does not receive an award of damages in excess of that assessed by PIAB the effect will be as if the defendant had made a lodgement of that sum and the defendant will be entitled to ask the court to refuse an award of costs in favour of the plaintiff.

Witness Immunity

Most witnesses are compellable, that is, they will be obliged to attend and give evidence in court. The method of doing this is to serve a subpoena on the witness.

Reasonably enough, the witness is and should be protected from litigious attack for giving evidence. Absolute privilege attaches to statements that are made in the course of the administration of justice. This has been stated as “…anything said, or published in writing, in the court and as part of legal proceedings cannot be made the subject of an action for defamation…â€? This refers to the judge as much as the witness. Under the common law a judge is absolutely privileged in respect of what he or she does while acting in the performance of his or her office.

A party or a witness also has absolute privilege in respect of statements that are made in the course of the administration of justice. The statement may be in oral evidence or on affidavit or in instructions to lawyers or in pleadings. An advocate has absolute privilege in respect of statements that are made in the course of the administration of justice. However the statement must be relevant, but the burden of proof will probably lie on the plaintiff to prove that it was not relevant.

The law on this point is generally the same in Australia and the USA as in Britain or Ireland.

In Meadow v GMC the court said;

It is common ground that at common law a witness, whether he is giving evidence of fact or opinion, and whether or not he is an expert witness, has immunity from civil suit in respect of evidence which he gives in court. It is also common ground that the immunity extends to any statement the witness makes for the purpose of giving evidence. Where it exists the witness has immunity even in a case where he gave his evidence dishonestly or in bad faith.

In its judgment the court quoted Kelly CB in Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 264. as follows;

no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.

This may need review in Ireland in the light of the passing of the European Convention on Human Rights Act 2003. Under this act, rules of law or procedure are to be interpreted to safeguard the human rights of persons. It is a right under the convention to have the protection of one’s good name and to the vindication of that right when it is attacked. In addition, no wrong is to be left without a remedy. If the judge is not acting in the course of his/her office there is no absolute privilege. This would cover a situation extending to perversions of the course of justice or conspiracy to that end.

PPARS

The Health Service Executive has formally announced the decision to abandon the Ppars computer system. The decision effectively had been made in 2005 when the chief executive decided to suspend its “roll-outâ€?.

The reasons are very clear; it was budgeted to cost €9 million but has cost €176.8 million to date.

It had been known for some time that it was a black hole for public money.

By way of spin the HSE says the “investmentâ€? in computers will remain. (Bad luck, Mr. Dell ).

Is this, as it appears, a typical case of cost overrun? (What does that mean?)

Did the HSE keep changing the specification?

Did the contract for the purchase and supply of the system provide for the allocation of liability in the event of what has happened, happening?

If it did not, why did it not?

Who drafted the terms of the contract?

Who approved the terms of the contract?

Do those individuals, if they are not part of the supplier or the HSE, have adequate professional indemnity insurance?

NOTE: nothing in this post is intended to suggest that any person or firm connected with the Ppars project has acted wrongfully and any such seeming implication is abjured.

Constituencies Constitutional Challenge – The Judgment

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

    5th July 2007

    1. The Judgment of the High Court is available HERE

Personal Injury – The Health Industry

For Employers’ duties see HERE

The Health Service Executive is the largest employer in the State, with more than 67,000 staff in direct employment and a further 33,000 funded by the HSE. They make up what is generally known as “the health industry”.

At one point the Health and Safety Authority targeted the health industry in Ireland for special attention. It was perceived that standards of Safety and Health were, ironically, particularly low in the industry. This feature was shared with the health industry in Britain. This paradox seems to spring from hierarchical structures in hospitals. This deflected the articulation of staff problems.

For the junior hospital doctors, the hours they work were high on the agenda they would like reviewed under Health and Safety. Following the introduction of Directive 2000/34/EC, its provisions were transposed into Irish law by Statutory Instrument No. 494 of 2004, European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004, on 28th July 2004 .

From 1st August 2007, an employer cannot require a junior to work for more than 56 hours a week, averaged over a maximum 6-month reference period.

In 1984 the doctors’ professional representative body estimated the average working hours of junior doctors at 70 hours a week.

At one point it was estimated that about 3,500 nurses and hospital attendants were injured at work every year from causes such as assault, burns, slipping on wet floors and stress. In addition they are exposed to all the hazards that the hospital environment holds in the way of biohazards. Needlstick injuries, (accidental puncturing of the skin with a kneedle or scalpel, usually after use,) are a particularly serious danger. This can happen when the object is being disposed of; being transferred from hand to hand; or is lost in linen and “discovered” by an unlucky hand.

Nurses as a group have a considerable level of complaint of low back pain, a sure sign of injury from excessive lifting.

Whistleblowing (with teeth)

Ireland has the office of the Comptroller and Auditor General (established under Article 33 of the Irish Constitution), to safeguard public money.

The Dail Public Accounts Committee is capable of performing useful work in the same area. However the Comptroller and Auditor General’s office is small and the PAC is subject to being influenced by political considerations.

Ireland’s capital budget has grown significantly in recent years. There is little reason to believe that either the Civil Service or the Government have the skill or experience to control, manage or audit the contracts flowing from this budget.

There is a ready, cheap partial solution to this, one that has the merit of being a deterrent as much as, if not more than, a remedy.

It can be seen working in the United States of America in the False Claims Act. In that jurisdiction a common law procedure (qui tam), fallen into disuse in the United Kingdom, was used during the Civil War to uncover profiteering and corruption in the delivery of supplies to the Union armies. (General John C. Fremont, head of the Department of the West was found to be associated with Isaiah Woods, a known crook, and his bodyguard had helped themselves to $5,000,000 worth of contracts). There were plenty of contracts and much need of them; Colonel Murphy of the Union Army was warned by General U. S. Grant to post extra sentries on the stores at Holly Springs; he went to bed instead and awoke to find a $4,000,000 blaze around him. General Van Dorn had arrived, as expected.

It has been proposed to revive the qui tam procedure in the UK.

A revival would be timely in an era of Public Private Partnerships and, in Ireland, co-location hospitals.

A False Claims Act privatises the effort of uncovering fraud of public funds and rewards the whistleblower with a percentage of the recovered stolen proceeds.

The obvious candidate for the role of whistleblower is an honest (or not), former (or current) employee of the fraudster. The employee is likely to be privy to the obligations of the fraudster and the failure to meet those obligations.

Is there a more clear case for urgent legislation?

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