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Multi-Party litigation

Ireland has nominal provision for multi-party litigation. Order 15, rule 9 of the Rules of the Superior Courts states:

9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court to defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested.

This has been interpreted restrictively and is little used.

Generally, as an alternative, “test cases” are pursued, one case being chosen to determine the issue of liability and thereafter cases are fought on the issue of quantum of compensation.

There is, in Ireland, a notion that it is the function of the Courts to avoid a “breach of the floodgatesâ€?, an idea at considerable odds with the doctrine of the separation of powers.

Nevertheless, the Irish Law Reform Commission published, in 2005, a report on the subject recommending the introduction of Rules permitting the commencement of class actions and regulating their conduct.

There can be problems with class actions but in a small jurisdiction like Ireland these could be minimised.

Shed a tear for Scooter Libby

It is a bad time for the Rule of Law.

First, President Katsav avoids his trial for rape and his accusers are denied the protection of the courts and the criminal law.

Now George W. Bush commutes the jail sentence of “Scooterâ€? Libby.

In a sense, these events are refreshing in their brazenness,

It seems scarcely necessary to ask for the explanations for these actions. They are undoubtedly the deployment of political power masquerading as part of a judicial process.

In the case of George W., it appears he was complicit in the original illegal leaking of information on Valerie Plame.

In these circumstances “reasons of Stateâ€? is an inadequate description of his actions. He is an accomplice of Scooter Libby. His current action is one of perversion of the course of justice and aggravates his original offence.

At the moment, by way of light relief, better try to think of ways of preventing the people of China hearing of this Presidential initiative. It doesn’t sit well with an earlier initiative.

President Katsav

President Katsav of Israel has the benefit of a good deal. Following complaints of rape and sexual harassment (by and of women) and investigation of those complaints the Attorney General of Israel has made the deal with him.

Under the deal he will plead guilty to minor sexual offences and will not be tried for rape. He will resign two weeks ahead of the expiry of his term of office.

The complainants do not appear to have agreed to the deal. The first complainant, “Ms Aâ€?, stated:

It [the deal]

gave sex offenders license and legitimacy to do anything they want with impunity.

The Attorney General gave as his reason

it was important to spare Israel the sight of a president on trial.

There could be no better example of an act taken for “Raisons d’Etatâ€?, and of course what happened was not a judicial process being a classic insider fix and a denial of the Rule of Law.

It should always be remembered, the State is an abstraction and the women are real. To prefer an abstraction over a person is to promote crime.

The interests of the State, but more importantly, the people, require that the deal not stand.

MRSA –Legal Burden of Proof?

A civil action against a medical practitioner or a health care facility will throw an immediate burden of proof on a Plaintiff in such an action.

Some obvious burdens would be the obligation to prove injury and to prove the existence of a duty of care on the part of the Defendant.

The difficult element would be to prove the breach of the duty. The fact of the injury is not proof of the breach. Essentially, in principle the Plaintiff will need to prove the chain of causation leading back from the injury to some default of the defendant. The Plaintiff will also have to prove the injury was a foreseeable consequence of the breach of the duty.

All of this flows from the principle “he who asserts, must proveâ€?.

There is however a practice permitting the reversal of the burden of proof in some circumstances.

That is generally stated as arising where the matter is peculiarly within the knowledge of the Defendant.

In Rothwell v Motor Insurers Bureau of Ireland [2003] 1 IR 268 Hardiman J. reiterated this by requiring that it be “peculiarly within the Defendant’s capacity for proofâ€?

On the facts in Rothwell this was reasonable; neither the Plaintiff nor the Defendant were privy to the circumstances where an oil slick was on the public road. An unknown driver had deposited it there (it seemed) and the Supreme Court found that the burden of proving its deposition by negligence lay on the Plaintiff and did not shift to the Defendant to disprove.

Regarding the contraction of a nosocomial infection such as MRSA, a number of causative factors have been postulated as being the ground or source of such infections. In the absence of direct sampling in a particular case, linking, say, the infected patient’s nosocomial infection with the unwashed hands of a nurse or a doctor, or the presence of MRSA in the bed or on the utensils being used to treat the patient, only the fact of infection and the proof of known and provable defaults in hospital hygiene may be available to the court to make a judgment upon.

A health care facility must be taken to be the master of its infrastructure. Therefore, unlike the defendant in Rothwell, it is open to it to disprove an inference of negligence arising from proof of infection of the Plaintiff and proof of general deficiencies in hospital hygiene. Recent references to the “obligationsâ€? on visitors to patients regarding hygiene may be directed more at establishing a plausible basis for undermining such an inference than at seriously seeking to protect patients. After all, who has ever proved a visitor infected a patient?

Essentially advancing the case for making such an inference is an appeal to make a judgment based on circumstantial evidence. There is nothing deficient in such evidence. It is relied on in circumstances where, in the light of logic, experience and common sense a reasonable person may determine an effect is more probably caused by negligence than not.

Insurance Anxiety

At the risk of appearing neurotic I note the happy outcome in Analog Devices BV & ors -v- Zurich Insurance Company & anor [2005] IESC.

Rather than being a focus on insurance (a satisfying field) I think it is more akin to word gratification on my part. The case turned on the interpretation of the meaning of exemption clauses in the policy.

The Plaintiff was in the business of manufacturing silicon wafers. The value of the wafers was high, Due to the fitting of an incorrect filter on a machine during annual maintenance a loss extending to 10 day’s output was incurred

The Plaintiff sought indemnity from its Defendant insurer who pleaded the benefit of exemption clauses in the policy.

When the Supreme Court uttered these words

This, of course, begs the questions of what is an error and when was it made,

the Defendant was in trouble.

To get the benefit of the exemption clauses the Defendant argued that annual maintenance was a part of the manufacturing process. The Supreme Court and before it, the High Court, would have none of it.

The case was clearly of a type relished by lawyers as witnessed by this:

In the written submissions of the appellants before this court there is an attempt to rubbish the qualifications of the legal expert in relation to Massachusetts law called on behalf of the respondents and there is also a criticism that the learned trial judge, to some extent at least, interpreted the American case law himself and decided the issues arising on the global policy based on his own opinion rather than the opinion of Massachusetts legal experts. Both of these criticisms are ill-founded.

Trial lawyers in Ireland (barristers) generally wear black gowns; they sometimes enter a ninja-like state and confuse their words with ninja “starsâ€?.

Where’s my Indemnity?

In commercial life the next worse thing to finding you have no insurance is to find that your insurer is trying to welsh on the insurance contract.

You find you have doubled your troubles; you are the Defendant in proceedings and you are compelled to be the Plaintiff in proceedings against your erstwhile insurer. (“Erstwhileâ€? is wrong; “currentâ€? is usually more accurate).

This was the situation in Cara Environmental Technology v McGovern [2005] IEHC

In the events that happened the High Court, on hearing a preliminary point of law (not always an appropriate recourse), had no difficulty holding that the Defendant (a solicitor acting as nominee for, from experience, Lloyds of London) had breached the insurance contract and triggered the Plaintiff’s entitlement to issue proceedings against the insurer for that breach. This meant that the Plaintiff could bring those proceedings without awaiting the outcome of the proceedings in which it was the Defendant. This of course, was very important; a successful Plaintiff in those proceedings might put the insured into insolvency if the need arose.

Inequality of Arms

I have written about Irish legal aid elsewhere.

Litigation anywhere can be ruinously expensive

This is particularly so if, as in the USA, the parties bear their own costs irrespective of the outcome.

So, when a small firm of dry cleaners in Washington, USA, was sued by a judicial figure of some kind
for a sum of $54 million, the firm was in trouble. The case had all the appearances of a try-on by the Plaintiff. He claimed the loss of the pants from a suit he left in for cleaning. His calculation of his losses was based on his reading of the effect of consumer protection laws and his claimed entitlement was based on interpreting “satisfaction guaranteedâ€? subjectively rather than objectively.

In reality he cannot have been oblivious to the unrecoverable costs he was heaping on the dry cleaners.

Unusually, there is a prospect of the Defendants getting an order for the recovery of their costs from the Plaintiff.

Power to the People?

I recommend reading “Power to the People?â€? by Hughes, Clancy, Harris and Beetham published by TASC at New Island.

It is a source book for information on Irish society not otherwise readily available in one place and often not available elsewhere.

Of current note is the role of “the Voluntary & Community Pillarâ€? in the making of the various national agreements between the “social partnersâ€?. Those partners always included the Government, the Trade Unions and the Employer representative bodies. Only recently was the Voluntary & Community Pillar given access to the making of the agreements. The Voluntary & Community Pillar is the name for an aggregate of Irish voluntary associations, citizen groups and other social movements. Access to negotiations implies the right to withhold agreement and that happened to a considerable degree in 2002 on the conclusion of “Sustaining Progress 2003-5â€?.

Eleven members of the Pillar voted against the terms of the agreement, undoubtedly to the mighty annoyance of the Government.

Arguably, the Pillar is more representative of the people of Ireland than the Government is. The Government is the outcome of the workings of political parties, whereas the Pillar is the outcome of the life of the people and/or is a manifestation of Civil Society.

It is ironic therefore to see the Government seeking to define the life of the Pillar in political terms, in the Electoral (Amendment) Act 2001. As noted elsewhere, “politicsâ€? is defined in that Act as, inter alia, opposition to Government policies.

That may be a very workable definition for the purposes of discussions in the Department of An Taoiseach, but it is surely too vague, uncertain and legally dubious (otherwise) to feature in an act of parliament.

Of course, Government could just withhold funding from any recalcitrant group, as happened with Community Workers Co-operative.

CWC was a very effective organisation in combatting poverty. An assessment by Government failed to notice this, and its funding was withdrawn. CWC had opposed “Sustaining Progress 2003-5â€?.

Undoubtedly, Government had not failed to notice that.

In further irony, the Standards in Public Office Commission is expressing dismay at the evasion by the main political parties of the legislation on party funding. Now all that remains is a name change for SIPO to reflect its true intended purpose: to control Civil Society.

Constituencies Constitutional Challenge – Costs (no bad PILL)

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

    25th June 2007

    1. The Defendants have agreed to meet and discharge the legal costs of the Plaintiffs in the action.
    2. The Court, on being informed of this, endorsed the decision of the Defendants, saying the case raised significant issues of public importance.
    3. What was the case about? The case turned on two questions: (a) What is a census (within the meaning of the Constitution)? (b) Who cares?
    4. A census is the officially ascertained result by the Central Statistics Office. For the purposes of the Constitution the ascertainment of the population results by electoral area by the CSO is the census, not the publication of those results by the CSO.
    5. Who cares?: the Oireachtas must care, to discharge its urgent obligation to ensure equality of voting and therefore the claim that Ireland is a democracy.
    6. The urgency of the obligation on the Oireachtas indicates that the very reliable preliminary census figures should be the trigger for the commencement by the Oireachtas of the preparatory work of constituency revision (if necessary). If such were done there would be no delay on revising constituencies where revision is indicated and required.
    7. PILL means “Public Interest Law & Litigation”. A person litigating such a public law issue, in the interest of all, should be awarded costs, and usually is.

Don’t ring us; we’ll ring you

The mobile phone is of great benefit to humanity. When it features in court it seems very interesting questions of law get an airing which might otherwise continue to live on behind the legal wainscotting.

The link is to a High Court Judicial Review application arising out of certain hasty decisions of a Circuit Court judge.

The original Circuit Court case must always have had interesting possibilities, given the potential in the case for the production (unexecuted) of a horse’s hoof into evidence.

As interested observers we would like to know; was the horse’s hoof specified as an item of evidence in the barrister’s Advice on Proofs? (The Advice on Proofs is a written series of directions given by the barrister before trial to the solicitor, to ensure that everything the case [ie, the barrister] requires to be done to win is done).

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