We were mind boggled to learn that there are 4,000 adverse incidents in Irish Hospitals every month.

Now we know the statistic is wrong. It does not include the 58,000 adverse incidents from Tallaght Hospital.

A very large number of intelligent, knowledgeable, people must have known of the “systemic failure” in Tallaght. Every medical practitioner who read a Tallaght x-ray and acted on that reading knew that no confirmatory reading from a consultant radiologist had come to hand.

“Irish Health” reports;

“The remainder of the x-rays to be reviewed and reported on are understood to relate mainly to orthopaedics, and further new delayed diagnoses are thought to be unlikely at this stage.”

I imagine the reason for this is the tendency for failures to detect bone damage in x-rays to come to light by the pathetic return of the patient to the hospital with exacerbated injuries from neglect of the original injury.

In Byrne v Hudson [2007] IESC the Plaintiff lost his eye when an adult son of the owners of 84 Windmill Rd. Crumlin in Dublin shot him with a paint ball gun from the upstairs window of that house.
The Plaintiff instructed his solicitor. However, the Plaintiff failed to tell the solicitor of certain circumstances actually known to him. Those circumstances were that the father of the adult son no longer lived at 84 Windmill Rd. and that the occupier was the mother. (The adult son also did not live at the address.)
Consequently, when the solicitor issued proceedings, the adult son and the father were named as the defendants, the latter as the occupier of the premises. As he was not the occupier, the action was bound to fail against him. Much later the Plaintiff joined the mother. She pleaded the Statute of Limitations 1957, as amended. The Plaintiff pleaded the Statute of Limitations (Amendment) Act 1991 in reply. Under this amending act time does not begin to run until a victim knows or with reasonable inquiry can know the identity of the person who has wronged him or her.
The mother claimed that the time within which the Plaintiff could effectively and successfully issue proceedings against her had long since expired. The Supreme Court agreed with her. It found that the Plaintiff could not avail of the provisions of the Statute of Limitations (Amendment) Act 1991 in circumstances where not only could he easily find out the relevant facts (that the mother was the only occupier) but that he actually knew this when he instructed his solicitor (and failed to tell him).
(What was at issue, [it is surmised], was the probable availability of insurance cover for the Plaintiff’s claim. That cover was to benefit the occupier and not anyone else. The adult son was not welcome in the house; he would not have been an insured person. The father was not an occupier; he would not have had cover. Only the mother as occupier would have been covered. She was the proper and preferred defendant.)
(Currently, an injured person has two years to issue proceedings and to stop time running against him or her. Only if the Statute of Limitations (Amendment) Act 1991 applies, will that time not start running at the accrual of the cause of action (the date of the injury)).
It is unwise to make a quick judgment on whether time has run against a claim or not. This post should not be relied upon to determine that question in any case. See the post “Disclaimer!” in this blog.

The Irish Times has reported Treasury Holdings v O’Kennedy (Dublin Circuit Court).

Treasury Holdings succeeded in its proceedings against Mary O’Kennedy. She failed to complete the purchase of an apartment from Treasury. She also failed to “engage” with Treasury, from which we can only surmise she did not properly defend the proceedings. Consequently we can only assume certain things;
1. She lacked the finance to buy, due to the collapse in the market providing mortgage finance; or
2. She sought to avoid completion because the market value was now less than the purchase price;
3. She was a “consumer”. She would, therefore, have had the benefit of the provisions of S.I. No. 27/1995 European Communities (Unfair Terms In Consumer Contracts) Regulations, 1995. Of course, if a proper defence is not advanced in the proceedings that benefit, if any, would be wasted
4. Her contract had a standard loan approval clause. Contracts for the purchase of property of the value of this apartment would normally contain a loan approval clause. If Ms. Kennedy was relying on drawing down borrowed finance to fund the purchase, that loan approval clause was a vital term her solicitor would require to be inserted before she signed the contract. There is no difficulty accessing suitable terms for such a clause; the Law Society of Ireland has published one (December 1979).
5. There is a problem however with most mortgage loan approvals; they do not guarantee the actual provision of the money. They are subject to conditions and the offer of finance can be withdrawn before drawdown.
6. The Law Society clause is slightly odd in its terms. It contains the words;

“…the loan approval is conditional on a survey satisfactory to the lending institution or a mortgage protection or life assurance policy being taken out or some other condition compliance with which is not within the control of the purchaser the loan shall not be deemed to be approved until the purchaser is in a position to accept the loan on terms which are within his reasonable power or procurement”

Arguably, the phrase “accept the loan” must mean “accept the money” as opposed to “accept the offer of money”.
7. There is, nonetheless, the possibility of the purchaser having a loan approval clause and a loan approval and being left without the money and with the liability under the contract.
8. Worse than that, developers often demand the deletion of the loan approval clause after the issue of the loan approval letter to the purchaser. (They refrain from returning the contract, signed by the developer, having received it signed from the purchaser). Deletion should be resisted.
9. A solicitor would be wise to get the agreement of the purchaser in writing to the deletion of the loan approval clause and wiser still to tell the purchaser in writing that the contract is no longer conditional and that he or she will be required to complete even if he or she cannot obtain a mortgage.
10. That aside, it is not wise to put up no defence to the developer’s proceedings seeking specific performance of the contract.

The judgment delivered today by Ms. Justice Laffoy in the case of

Shell E&P Ireland Limited -v- McGrath and Ors

can be found in pdf format by clicking on the above link.

The file is 3.6Mb in size, so may take some time to download. It runs to 55 pages. A summation may be found from page 54 onwards.

McGarr Solicitors act for the 2nd and 5th Defendants.

In legal circles the significance of making a wrong statement looms large. We saw this in the case of Willie O’Dea. Willie’s case is a double example; he straddled the legal world and the political world with his error. In the legal world the political world is often looked on with a cold eye, for good reason. In politics “denial” is not, it seems, evidence of a character flaw; it can be a skill, measured by the duration of the deferral of the time one is called to account.

Denial is only incidentally the subject of this post; conveying wrong information is its subject.

We are all of us guilty, at some time or other, of doing this. We have firm clear recollections of where we left the keys, the hand blender, the tea-bags, the car insurance etc. We were wrong. Nevertheless, we conveyed (even propagated) the wrong information to someone else. Errors of this kind are common. Significantly, being wrong is not evidence of wrongdoing.

There are occasions when being wrong is evidence of wrongdoing, but these occasions are not common. Even sworn evidence in court, if not accepted by the court, does not lead to a charge of perjury. Generally, we do not infer dishonesty from the error in the statement. It is tempting to say that the more elaborate the statement, the more it is evidence of a malign intent if it is wrong, but this is not true, as we saw in the case of Hilary Clinton.

Perjury aside, the law has been anxious to distinguish between wrong statements that cause personal injury and wrong statements that cause economic loss. (Most wrong statements cause neither).

We see in the case of Walsh v Jones Lang Lasalle [2007] IEHC 28 an instance of what statements and what circumstances will trigger liability for economic loss in Irish law.

In 2000 the plaintiff purchased 77 Upper Gardiner Street in Dublin for the sum of IR £2,342,000.00 for investment purposes. He dealt with the defendant firm, acting for the vendor and the defendant told him (in its sales brochure) that the property comprised a floor area of 23,057 square feet. In fact the floor area of the property was 21,248 square feet, (1,817 square feet less than what was represented to the plaintiff by the defendant).

The defendant’s brochure contained a disclaimer of liability for wrong statements in the brochure in the following terms;

“Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given.”

The High Court found for the plaintiff as follows; (a) the relationship between the plaintiff and the defendant was sufficiently proximate to give rise to a “special relationship” of the kind identified in Wildgust and, (b) that the loss allegedly sustained by the plaintiff was reasonably foreseeable in the circumstances and, (c) that the imposition upon the defendant of such a duty was, in the circumstances not unfair, unjust or unreasonable. The court was satisfied on the facts of the case that the defendant owed a duty of care to the plaintiff to ensure that the calculation of the floor area of the property that the defendant published in its sales brochure was accurate.

In the absence of evidence of purchasers commissioning surveys to check the accuracy of precise measurements contained in the brochures of reputable auctioneers, the court refused to find the plaintiff guilty of contributory negligence in failing to check the defendant’s measurements.

It isn’t easy to generate readable prose on any subject, even one’s “own” subject. The principal difficulty is the depreciation of intellectual capital. We tend to learn what we know early in life and by the time we look authoritative we know less than we ever knew.

Maurice Neligan is a case in point. In the Irish Times he has opined about the trauma of medical negligence claims on doctors.

He shouldn’t bother, unless he has monitored the latest available information (in the self-same Irish Times!)

That shows there are more than 4,000 adverse incidents in Irish Hospitals each month. That’s more than 48,000 per year.

The trauma to concern us should be the trauma of the victim patients, not the trauma of the doctors.

It is surprising that NAMA’s business plan has overlooked the possibilities of souvenir land sales.

These are created when tiny plots of land are provided with their individual land title. The title document will be a Folio from the Land Registry Registry (oops, sorry; Property Registration Authority) and a certificate like an illuminated manuscript. (We are good at that kind of thing).

The UK has taken this very seriously and so should we. The benefits are many. It will give employment to solicitors (a very good thing), to the PRAI staff, to cartographers, to town planners (maybe).

It could be the solution to the disposal of many white elephants, like the Irish Glass Bottle site in Dublin’s docklands. It is an “ideas” proposal.

(Did Mr. Cowen ask for ideas?)

Auditors are “watchdogs, not bloodhounds” said the court in Re Kingston Cotton Mill Co. (No. 2) [1896] 2 Ch 279 CA. Even at the time this was a very limited view of what we can expect of auditors or their like. (It was also infelicitous; auditors are not and never were, even metaphorically, like “watchdogs”). Considering that Sherlock Holmes was an available “example” (1880 to 1907), it is surprising the judge did not feel more could be expected of the auditors of his day than he settled for.

The job of an auditor is to ascertain if the accounts provide “a true and fair view” of the company’s financial position. However, the auditor’s judgment on this is not, and should not be, absolute. After all, the auditor should not be the equivalent of an insurer where he pays if there is something wrong and loss accrues. In modern times the profession, as always, determines the liability of auditors. The profession has issued guidelines for auditors. Those guidelines now impose a higher standard on auditors than Re Kingston.

These guidelines were quoted in Moore Stephens (a firm) v Stone & Rolls Limited (in liquidation) [2009] UKHL 39

”Auditing Standard SAS 110 (issued January 1995) deals with fraud and error. It contains statements of auditing standards (SAS) and explanatory text in numbered paragraphs. SAS 110.1 states: “Auditors should plan and perform their audit procedures and evaluate and report the results thereof, recognising that fraud or error may materially affect the financial statements”. SAS 110.10 (para. 50) states that, on becoming aware of a suspected or actual instance of fraud, auditors
“should (a) consider whether the matter may be one that ought to be reported to a proper authority in the public interest; and where this is the case (b) except in the circumstances covered in SAS 110.12, discuss the matter with the board of directors, including any audit committee”.
SAS 110.12 (para. 52) provides that
“When a suspected or actual instance of fraud casts doubt on the integrity of the directors auditors should make a report direct to a proper authority in the public interest without delay and without informing the directors in advance.” “

The fact that the auditors in that case escaped by the skin of their teeth shows life is going to get difficult for the profession.

It is difficult to know where to begin to decry what is happening in the Commission of the European Union. I am referring to the review of the National Asset Management Agency (“NAMA”) by the Commission. A good point of departure is that we do not know what is happening there. The Commission makes no (perceptible) effort to tell us and our Government likewise tells us nothing [useful].

The missing information is of economics [and consequent policies] following the disastrous property bubble here in Ireland. That bubble has caused havoc with the economy; it has driven unemployment upwards; it has destroyed pension plans; it has blighted the work prospects or careers of many young people.

Let’s start with something most people did not know; at least two of Ireland’s banks were and are too big to fail. That innocent phrase implies that we the citizens are to those banks as one conjoined twin is to another. We risk death if the bank expires, it is implied.

If true, how did we permit such a relationship with a private institution?

Leave all that aside. What should we do to “save” the banks?

The Government’s plan is NAMA. That plan is flawed. It has been changed more than once. We know that it has been mis-sold to the citizens of Ireland by the Government; it claimed the purpose of NAMA was to facilitate lending by the Banks to businesses. That is not true and never was, to the knowledge of the Government.

Now the plan is under consideration by the EU Commission. Specifically it is being considered by Joaquin Almunia the new Commissioner for Competition. He is in fact not all that new; he used to be Commissioner for Economics and Monetary policy. The bad news is, he is not good at his job. He failed to spot the Greek crisis that has hit the EU with the force of a runaway train; it was his job to see that problem. Instead he was in Dublin, cheerleading for the Government where he publicly endorsed NAMA. We learned his communication skills tend to emulation of an Electromagnetic Pulse.

Of course, no skills are needed if the EU “review” is just for the “optics” of the process. The heart of NAMA dictates that the citizens of Ireland will pay [consciously] way over the odds for the “impaired assets” of the banks. The pseudo words of justification for this are, “long–term economic value”. There is no such thing.

It’s voodoo economics.

Hints have been given by the Government as to the high price they intend to saddle the citizens of Ireland with. If the hints are correct, we are about to agree to pay €54 billion for these “assets”. We know for sure that this is not the value of these assets. What is the value of the assets? We must look to the cases coming before the Commercial Court. On 19th February 2010, in one case alone the asset had fallen in value from €31 million to €600,000 in a period of just over 3 years. The judge remarked that in his opinion, assets had fallen by 70% to 80% in value. He had previously guessed a fall of 50%. In short, the values are still falling. Let’s take the price of €54 billion; assume that is the book value of these bank assets. A fall of 80% would mean they are worth [now] €10.8 billion. If the case of 19th February 2010 represents the full general fall in value, the €54 billion is worth “just” €1.08 billion.

One sometimes thinks that the true home and centre of he European Union is on the heights above Prague and its poet is Franz Kafka, but a better perspective is to realize that some human capacities are not as general as might be thought. Why do we think that Mr. Almunia must be capable? What if the genius of Keynes is like visuospatial ability? People without the capacity do not know of what they are bereft, and those with the capacity cannot conceive of a person who lacks it.

Wake up Joaquin Almunia!

Insurance has a strange aspect which we often overlook; we are happy that we did not need it.

We do not think that the premia paid year after year to insure our house is wasted money. After all, we do not want our house to burn down; we just want to rebuild and restore it if it does. So, we pay a small sum of money to meet the possibility of having to pay the much larger sum if the house does burn down (or suffer some other form of damage).

Sometimes the question of what is a proportionate sum to pay as a premium to cover the perceived risk has to be publicly determined.

In the UK, unlike Ireland, there is anxiety that justice should be facilitated. By “justice” is meant the ready and easy opportunity to go to court seeking a remedy without being prevented by extraneous causes, like poverty. Poverty is relative; most people in Ireland would consider the costs of a High Court action (or even a Circuit court action) beyond them.

Consequently, the UK authorities have facilitated schemes intended to achieve this end.

One such scheme is to allow lawyers who work on a “no win, no fee” basis to charge a significantly higher fee when they are successful, and provide that the losing party has to pay that higher fee as a matter of course.

Another is to recompense a plaintiff his or her insurance premium for “After The Event” (ATE) insurance. This is insurance taken out to, effectively, help pay for some of the litigation costs of the plaintiff/insured.

Section 29 of the UK Access to Justice Act 1999 provides:

“Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.”

Inevitably, the losing defendants (other insurance companies) took issue with the premia being charged for the ATE.

HERE ‘s the outcome of that dispute.