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 “stars�.

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. (“Erstwhile� is wrong; “current� 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.

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 guaranteed� 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.

I recommend reading “Power to the People?� 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 Pillar� in the making of the various national agreements between the “social partners�. 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 2003-5�.

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, “politics� 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 2003-5�.

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.

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.

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).

Before the honeymoon was over the Green Party found out what their new partner in government was like.

Before leaving office the (demoted) Minister for the Environment Heritage and Local Government signed an order to destroy the pre-historic site at Lismullen, to facilitate the building of the M3 motorway.

The chattering classes [journalists, this time] declared it was irreversible. (So did the new Attorney General, apparently).

But for an alternative view see Daithí Mac Síthigh HERE.

The conference is in the Edmund Burke theatre in the Arts block of Trinity College, Dublin. It’s running late on schedule, probably due to the change of venue from Emmett to Burke theatre.

In Ireland, until 1737, indictments were presented to the accused in latin. The repealing act was 11 Geo. II, c.6.

Currently the principal Act governing the framing of Irish indictments is the Criminal Justice (Administration) Act 1924, which contains in a Schedule and an Appendix, the general rules for framing indictments.

The concept lying behind the modern approach is the principle of legality. This means that a person aught not to be charged with an offence unless the charged offence springs from a pre-existing rule of law where the behaviour has been clearly and precisely prohibited.

The history of this idea probably starts with Beccaria and is found expressed in Article 15.5 of the Irish Constitution and Article 7 (1) of the European Convention on Human Rights and Fundamental Freedoms.

Given the length of time this issue has been to the forefront of judicial matters it would be a surprise to find a charge that does not conform to these principles.

Or perhaps not; see King v Attorney General [1981] IR 223, where the only section of the Vagrancy Act 1824 still extant was declared unconstitutional, There, Judge Kenny said –

I

t is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law, or of offences which, created by statute, are expressed without ambiguity… In my opinion, both governing phrases (in s. 4 of the Vagrancy Act 1824) “suspected person� and “reputed thief� are so uncertain that they cannot form the foundation for a criminal offence.

For years prior to 1981 [the date of the judgment] young barristers were enjoined by their seniors to attack the use of Section 4. In short, the ground was laid and perceptions clarified long before the Section fell.

Which brings me to the question; when is a police officer acting in the due course of his/her duty?

Not everything s/he does is in the course of duty (not to speak of the due course of duty).

Therefore a charge adopting the wording of Section 19 (3) of the Criminal Justice (Public Order) Act 1994:

(3) Any person who resists or wilfully obstructs a peace officer acting in the execution of his duty or a person assisting a peace officer in the execution of his duty, knowing that he is or being reckless as to whether he is, a peace officer acting in the execution of his duty, shall be guilty of an offence.

-without specifying what was the alleged duty being obstructed or resisted is surely vague and uncertain and bad.

This is the MRSA collection, having regard to the conference in Trinity college tomorrow.

HERE and HERE and HERE and HERE and HERE and HERE