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Digital Rights Ireland

THE HIGH COURT
2006 No. 3785P

Between


DIGITAL RIGHTS IRELAND LIMITED

Plaintiff


And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

NOTICE OF MOTION

TAKE NOTICE that on the 19TH day of FEBRUARY 2007, at the hour of 10.30 a.m. in the forenoon or at the first available opportunity thereafter Counsel on behalf of the Plaintiff herein will apply to this Honourable Court sitting in the Chancery Motions list at the Four Courts Inns Quay in the City of Dublin for the following:

1. An Order granting judgment to the Plaintiff against the Defendants and each of them herein in terms of the Indorsement of Claim set out in the Statement of Claim herein on the grounds that the Defendants herein and each of them have failed to enter a Defence within the time specified by the Rules of this Honourable Court;

2. Such further and other Orders and relief as to this Honourable Court seems meet and just;

3. An order dealing with the costs of and incidental to this application.

WHICH APPLICATION will be grounded upon the proceedings already had herein, this Notice of Motion and affidavit of service thereof, the certificate of no Defence, the Affidavit of Edward McGarr and the exhibits herein referred to, the nature of the case and the reasons to be offered.

DATED THIS 12th DAY OF JANUARY 2007

_________________________
McGARR
Solicitors
12 City Gate
Lower Bridge St.
Dublin 8

TO: The Registrar
Central Office
Four Courts
Dublin 7
And
The Chief State Solicitor
Little Ship St.
Dublin 8 (more…)

The Children’s Hospital

Crumlin Children’s Hospital has declined to transfer to the proposed site for the new “world classâ€? children’s hospital at the Mater Hospital on the North Circular Road in Dublin 7.

The reason for this refusal is that the site is inadequate for the project. If the site is inadequate, there will be deficiencies in the infrastructure for the new hospital. Without proper infrastructure (assuming the staff continue working in such circumstances) the task of delivering proper care to the patients will become more difficult than it need be.

The concept of “remoteness of damageâ€? is not a bar to holding hospital managements liable in the tort of negligence for damage inflicted on patients due to inadequate facilities, although the proof of the inadequacy of facilities as a “causa causansâ€? is inevitably difficult.

In addition there is a statutory duty on management to comply with section 12 of the Safety Health and Welfare at Work Act 2005 which reads:

“12.—Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare.â€?

Magna Carta repealed!

This web site is not intended to be an academic forum (although, if leather armchairs are on offer, it aspires to resemble an academic common room).

No apologies are offered therefore for the earlier failure to alert the nation to the repeal by Ireland of Magna Carta (25 Edw. 1 Magna Carta)

According to Wikipedia England (Britain) had already repealed it.

Nevertheless, why have our barons and churchmen permitted this abrogation of their rights immemorial? It is instructive that this assault on their rights is justified by a claim that “the laws could not be understoodâ€?.

Management companies in apartment complexes

Management companies in apartment complexes

1. There are good reasons for the existence of management companies in apartment complexes. The need exists for some legal entity to manage and control the “common areasâ€?, those portions of a development that are not part of any apartment. Normally each apartment owner has a share in the management company or is a member. These are usually companies limited by Guarantee. The management company will insure the apartment complex (including the apartments) and will ensure that cleaning and lighting is maintained. The plan of the scheme will be reflected in the conveyancing arrangements for the scheme. “Conveyancingâ€? is a reference to the land law and form of documents used in the scheme. It would be necessary to inspect the title documents to fully understand the conveyancing aspect of any particular scheme. The developer’s scheme of development will usually contemplate the transfer of the ownership of the common areas from the developer to the management company, on completion of the sale of the last apartment to be sold. Normally membership of the management company is limited to the apartment owners (after the sale of the last apartment). (Do not confuse the management company with the “managerâ€?. The “managerâ€? might be also a company, hired by the developer to provide management services). (more…)

A Death in Hospital

1. When someone dies in hospital (or having just left it) it is easy to overlook the necessity for notifying the local coroner. Why have an inquest? Is the cause of death not known?

2. Possibly not. In any event Section 18 (4) of the Coroners Act 1962 sets out the legal obligations following on the death of a person.

“18… (4) Every medical practitioner, registrar of deaths or funeral undertaker and every occupier of a house or mobile dwelling, and every person in charge of any institution or premises, in which a deceased person was residing at the time of his death, who has reason to believe that the deceased person died, either directly or indirectly, as a result of violence or misadventure or by unfair means, or as a result of negligence or misconduct or malpractice on the part of others, or from any cause other than natural illness or disease for which he had been seen and treated by a registered medical practitioner within one month before his death, or in such circumstances as may require investigation (including death as the result of the administration of an anaesthetic), shall immediately notify the coroner within whose district the body of the deceased person is lying of the facts and circumstances relating to the death.”

3. It is the obligation of the coroner to consider whether to hold an inquest or not. Usually he/she will. The Act provides:

“17. —Subject to the provisions of this Act, where a coroner is informed that the body of a deceased person is lying within his district, it shall be the duty of the coroner to hold an inquest in relation to the death of that person if he is of opinion that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place or in circumstances which, under provisions in that behalf contained in any other enactment, require that an inquest should be held.”

4. The writer has encountered a case where a death occurred in a major hospital in Dublin due to medical negligence. The Registrar of Births Deaths and Marriages was notified of the death by “the occupier” of the hospital – one of the hospital porters!

5. The coroner was not notified by the hospital authorities (of any level). If the coroner is not notified he/she cannot know of the death and the need for the inquest.

6. The Act permits any person to notify the coroner of a death.

RSS feeds now working again

After a considerable time spent chin stroking and scratching my head, I discovered what was stopping our RSS feeds from working and have fixed it.

It was all my fault, of course.

We have a number of interesting articles coming up this week, including one on how to deal with a management company, of an estate or apartment complex, which you don’t feel is doing its job properly.

The Balance in the Criminal Law Review Group

That the “Balance in the Criminal Law Review Groupâ€? was established following a speech by the Tanaiste and Minister for Justice, Equality and Law Reform undermines its credentials. We already have the Law Reform Commission whose publications do not generally exhibit the realpolitik which is the survival imperative of Government Ministers. Why, then, the need for the Group? The title of the Group implies there is an imbalance between the rights of suspects and the rights of society. It is difficult to know how such an imbalance came about, if it did. If there is such an imbalance the Law Reform Commission is the obvious body to look into it. Ruminations from the Tanaiste and Minister for Justice, Equality and Law Reform or any one else, about “change in societyâ€? are no substitute for real analysis.

The members of the Group are excellent people but not, to the writer’s knowledge, practitioners in the field of criminal law, either for the prosecution or the defence. The Group would be the stronger for some representative/s from such a background. It is possible that the dynamics of a criminal prosecution could be examined with such assistance. Zealots should not (and mostly are not) assigned the work of prosecution; for the unexpressed reason that a prosecution is to some degree a creative act, whether in its construction or its presentation or both. (more…)

Defamation on the web: An Irish perspective, in brief

Is defamation on the Web special?

No; except in the sense that there is no statutory provision applicable to publications on the Web similar to, for example, Section 24 of the Defamation Act 1961 conferring a qualified privilege on newspapers and broadcasting media disseminating fair and accurate reports of the matters set out in the 2nd Schedule to the Act.

Where does the Irish law of defamation come from?

Irish law of defamation comes from the common law, from the Constitution of Ireland and from the Defamation Act 1961.

What is Defamation?

Defamation may be a slander or a libel. Generally speaking, libel is the making of statements in permanent form that disparage the plaintiff or tend to bring him into ridicule or contempt. Slander is the making of statements in transitory form that disparage the plaintiff or tend to bring him into ridicule or contempt.

Are defamatory statements ever defensible?

Yes, sometimes. Mere abuse, for instance, is not actionable. The immediately useful defence is justification; proving that what has been said is true. True or not, statements made under privilege, absolute or qualified, can be defended. (more…)

The Medical Defence Union: “MDU”

Once again, McGarr solicitors have been criticised for a posting relating to Medical Defence Union (“MDUâ€?).

Again, the critic is the Dublin solicitor to MDU.

The criticism now carries far less force than the first criticism, consisting as it does of assertion and a refusal to engage with questions we raised in correspondence after the first attack.

The solicitor instead confirms he is writing to our ISP.

He has done this despite the fact that we took down the first posting, pending hearing from him. On that occasion he also wrote to our ISP.

Well, it is now clear we will not be hearing from him in an acceptable way. So, it’s time to re-examine MDU:

1. MDU is the precedent for The Solicitors’ Mutual Defence Fund Limited.

2. MDU is a mutual society offering membership each year to its practitioner members. As the name suggests, the Medical Defence Union has as its declared purpose the defence of its medical members in controversies (typically claims of professional negligence) touching the practice of their profession.

3. In a High Court action the judge found; “The MDU claims that under Article 48 (which is set out in its material parts, in the Defence) an indemnity may be granted in whole or in part with regard to actions affecting the professional character or interests or conduct in a professional capacity of a member raising a question of professional principle but only on such terms and conditions as the Board of Management should think proper, the Board of Management (or other authorised person or committee) to have an absolute discretion to limit or restrict the grant of such indemnity or altogether to decline to grant the same or to determine any indemnity granted without giving any reason.â€?

4. The MDU is on record as claiming that “discretionary indemnity is ,,,unacceptableâ€? [as opposed to, effectively, an insurance contract…].

With regard to our original posting, it was based on facts, and ended in a comment.

That comment was to the effect, that a doctor and his/her patient must have certainty, in the event of a claim of negligence, and given the very high legal costs in establishing the fault or otherwise of the doctor, it cannot be left in doubt that an indemnity will be forthcoming for the claim and the costs associated with it, [and questioning why the Department of Health, even yet, is treating membership of MDU (the “MDU Indemnityâ€?) as equivalent to a policy of insurance].

In short, mutual societies like the MDU and the Solicitor’s Mutual Defence Fund Limited are not offering “insuranceâ€? when they offer “indemnityâ€?. They can and do decline to furnish the indemnity.

Not only were the facts accurate, established, and in the public domain, and the comment fair [and on a matter of public interest], but, remarkably, the comment reflected the declared view of the MDU itself!

In these notable circumstances it is little wonder that the solicitor of MDU little relished answering any queries on the challenge to the original posting. He might have found himself referring to a painful occasion for the MDU in the High Court (See Link).
The real issue lies in the communication to our ISP that we had defamed MDU. That claim was used to try to persuade our ISP to to take down the posting, and possibly, the entire website.

That of course, raises issues in constitutional law. The Constitution declares the right to freely express opinions. In addition, the posting was privileged, being fair comment on a matter of public interest.

What of that context of the posting, the public interest? The MDU (as fully reported ) has been in disagreement with the Department of Health and Children on the cover to be given to its members for claims (in negligence) arising prior to the introduction by the Government of a new scheme to pay for those claims.

“Irishhealth.comâ€? reported:

“But the MDU says it can not guarantee to pay for claims, principally for obstetric cases, prior to the new scheme – despite the fact that consultants had policies taken out at the time.

The MDU wants a deal with the Government, and has offered to pay the Department of Health 60 million euro to offload the responsibility for these ‘historical claims’. The Health Minister argues that the real cost of claims could be 400 million euro or more; that the policies which were in force should cover the claims and that the MDU should meet its liabilities. The Department of Health and the MDU are to hold further talks to try and resolve the issue. If unresolved, this could go to court and possibly in a British court.â€?

Clearly, for the MDU the use of pressure, legitimate or otherwise, in pursuit of its perceived interests (how can it have interests separate to those of its members?) is OK.

Which brings us back again to the Department of Health and Children. Why does the Department continue to recognise the MDU indemnity as a policy of insurance?

The Vaccine Trials

The Elephant of Forgetfulness extends its benign trunk to the Nuremberg trial in 1946. The public and, it appears, Mary Harney the Minister for Health and Children, have forgotten the trials (there was more than one) and especially have forgotten “The Doctors Trial”€?.

Many victims of the Holocaust had been the subject of medical experiments in the concentration camps.

Against the odds, some of the medical personnel responsible for the terrible injuries inflicted on the victims were brought to trial before the Nuremberg Tribunal.

The Tribunal, in addition to finding these acts of the defendants offences under International law, promulgated “The Nuremberg Code”?.

The Code was a clear exposition of the only legal basis on foot of which a medical experiment could be lawfully carried out on a human being. The free consent of the subject of the experiment was the key to the Code.

In 1949 the Geneva Conventions (ratified by Ireland) stipulated that no medical experiments could be carried out on prisoners of war. See Article 13.

Durng the 1960s and 1970s a number of babies and children in Ireland were the subjects of medical experiment by the administering of a vaccine to them. They were not of an age to consent and the available evidence shows no adult gave a consent for them or was even asked to do so.

The Commission to Inquire into Child Abuse was investigating these trials in “Institutional Settings”?

On 28th November 2006 the Minister announced there would be no more inquiries into these vaccine trials . (She told the Commission to stop its inquiry).
a) These trials were clearly a breach of the Nuremberg Code;

b) They would have been a war crime if they involved prisoners of war.

c) They were a trespass to the person.

d) They were a breach of the constitutional rights of the children, one of the rights comprising the State obligation “to defend the “life, person, good name and property rights of every citizen” (Article 40.2)

No inquiry?

Time to think again.

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