In Ireland, in the event of injury, proper compensation can be recovered only by consulting a solicitor. There are many solicitors in Ireland competent to represent a claimant in most personal injury cases.

The existence of the Personal Injuries Assessment Board (“PIAB”) should not distract from the need to prepare for the potential issuing of proceedings in court to recover compensation.

If the proper steps are not taken in timely fashion there may be an unsatisfactory ending to the efforts to vindicate your rights. The fact that most personal injury litigation ends satisfactorily, more or less, for plaintiffs, may conceal the fact that the difficulties facing a plaintiff are often considerable. They are so significant that the claim may never become a lawsuit.

Only a very small proportion of lawsuits are commenced in the absence of knowledge of the necessary evidence that will entitle the plaintiff to succeed. The spur to commencement of litigation is therefore, knowledge. Without the knowledge of the connection between the injury and the defendant there will be no, or no sufficient, evidence. Without the knowledge of the existence of the evidence, it cannot be gathered.

In addition to knowledge, speed is often required. A solicitor should be consulted as soon as possible. With delay, the location of the accident may change. In workplace accidents workers’ safety representatives should be prepared, on behalf of injured companions, to collect items of evidence immediately after an accident at a workplace.

The collection of the evidence should be approached as though a report were to be written. Date, time, location, lighting, weather (if outdoors) should be noted. Persons present or attending after the accident should be noted. Nothing should be moved until measurements are made and samples (if appropriate) taken. If machinery is involved, the registration number or other identifying mark of the machine should be noted. If possible, photographs of the scene should be taken from as many locations as possible. If samples of substances are taken, (carefully!) they should be placed in glass bottle containers with screw caps and luggage tags attached for identification. It is not always possible to know what evidence is required on behalf of the injured worker at such an early stage of the business, therefore the emphasis should be on thoroughness.

Instructing the Solicitor

The instructions to the solicitor need not be given personally by the injured person. The spouse or other family member of the injured person may give the instructions on behalf of the victim. They should consist of positive confirmation that the solicitor is to act for the victim and to do what is proper and reasonable to secure compensation in due course.

The solicitor will usually hire technical expertise, often a consulting engineer, to attend at the scene of the accident. The preliminary work of the safety representative in gathering evidence will be very useful at this point.

The solicitor is often presented with a difficult decision when the time comes to issue proceedings. The actual value of a case or, put another way, the amount of reasonable compensation which should be paid to the injured worker is not easy to assess even for experts at the final stages of the proceedings. It is doubly difficult at the beginning. Yet, this unknown and unknowable, sum of money determines whether the proceedings should be issued in the High Court, the Circuit Court or the District Court. This issue is called “jurisdiction”.

Jurisdiction

For civil matters (as opposed to criminal matters) the hearing of cases is apportioned between:

(a) The District Court (maximum jurisdiction EUR6,348.69 compensation)
(b) The Circuit Court (maximum jurisdiction EUR38,092.14 compensation)
(c) The High Court (unlimited jurisdiction )
(d) The Supreme Court (appeals only)

From the above it can be seen that if compensation in excess of EUR38,092.14 is appropriate the proceedings should be in the High Court. If the compensation falls in the range EUR6,348.6 – EUR38,092.14, it should be in the Circuit Court and below EUR6,348.6 it should be in the District Court.

Jurisdiction has a geographical element as well. In the Circuit and District courts the case should be taken in the court having jurisdiction over the place where the accident happened or where the Defendant resides.

Commencement of Proceedings

The solicitor commences by issuing an originating document. In the High Court this is called a Personal Injury Summons, in the Circuit Court a Civil Summons, and in the District Court a Civil Process. This contains a brief account of the facts of the accident and a detailed account of your allegations of negligence or whatever legal principle you base your claim on and also a general account of your injuries A copy of this is served on the Defendant.

The Defendant is then at liberty to enter an appearance in the relevant court office, or not, as he/she chooses. If no appearance is entered in the permitted time, the Plaintiff is at liberty to forthwith apply to the court for judgement in default. In short, you the Plaintiff win by a walk-over if the court gives judgement in your favour.

Usually an appearance is entered. After the entry of appearanc, the Defendant is at liberty to serve a defence, or not, as he/she chooses. If this is not done, you, the Plaintiff are at liberty to apply to the court for judgement in default. Again you have an opportunity to win by a walk-over.

In reality, very few cases are won on a walk-over and it may be very bad news if it happens to you. It usually means that neither the defendant nor any third party, such as an insurance company, cared whether you got judgement against them or not. This will be the case if the defendant is an insolvent company or is a person of no property and in either case is uninsured. Currently, employers’ liability insurance is not compulsory, unlike motor insurance. It is relatively easy for an insurance company to refuse to indemnify because of some breach of condition of the insurance.

Pleadings

Delays in getting medical reports slow down the exchange of pleadings and indeed the speed at which the matter may be brought on for trial.

Your injuries may not have settled down. That is, you may not have fully recovered, or the surgeon may feel that further adverse sequalae (bad consequences) will appear in the future and may be investigating this aspect of the matter.

If the defendant has or should have insurance cover there may be difficulties about ascertaining the extent or existence of this, and it may be prudent to put off the hearing of the action pending clarifying these matters.

The defendant may be deliberately delaying the hearing.

You, the plaintiff, may be careless of your own interest and not have furnished your solicitor with a proper account of the claim, or receipted accounts for payments made by you, recovery of which is sought from the defendant.

Assuming things run their usual course the defendant will serve his defence and you, the Plaintiff, will be at liberty to set the action down for hearing. When this is done in the Circuit Court in Dublin a date for the hearing is immediately assigned to the case. Depending on which Circuit the action is being taken in, anything up to eight or ten weeks may elapse before the hearing of the action. (The circuit is an administrative district roughly based on the four provinces). In the High Court in Dublin, following the setting down of the action it is possible to get a hearing date approximately six to eight weeks later.

Negotiation

If the opportunity arises the solicitor will negotiate on your behalf and help to achieve a settlement of the case before it comes to court. The solicitor will arrange medical examinations so that doctors’ reports are furnished, allowing your lawyer/s to assess the value of your case in relation to your personal injuries. Communications by you to your solicitor are privileged, that is, they may not and will not be divulged without your permission.

The solicitor should notify you to the best of his/her judgement of the prospects of success or otherwise if the action were to come on for hearing before a judge. The solicitor will frequently, in occupational injuries cases, arrange an inspection and report by an expert (such as an engineer). The evidence to be given by this expert may well determine the outcome of the case.

More about Pleadings

In order to fully define the ISSUES between the parties, PLEADINGS are exchanged between the parties. These pleadings concisely set out, in the case of the plaintiff, the wrong alleged to have been done by the defendant to the plaintiff; the loss alleged to have been suffered through that wrong; and the consequences thereof.

In the case of the defendant, his pleadings are intended to show what part of the claim of the plaintiff he admits or denies. What he does not deny is taken to be admitted, so frequently plaintiffs are shocked and surprised to see certain denials in defendants’ pleadings. They sometimes deny the undeniable! However, these are for the purpose of putting the plaintiff on full proof of those matters in court when the case comes for hearing. Even where the plaintiff will have no problem establishing the defendant’s liability, this issue is, often, still left to be proved by the plaintiff as a tactic of negotiation.

Statute of Limitations

There is a two year time limit within which proceedings for personal injury actions must (usually) be issued. The time begins to run from the date the injury was suffered. Thereafter the claim is barred under the Statute of Limitations 1957, as amended, and effectively lost. No lay person should ever make an uninformed decision on a question involving the Statute of Limitations. No lawyer should do so without considerable investigation of the matter. There are exceptions for infants and persons who do not, and cannot reasonably, know either that they have been injured and/or the identity of the person who injured them.

Damages

Damages is another name for the compensation you may be entitled to in order to make good your losses.You are in law obliged to minimise your loss. If you are injured you will only be allowed your loss of wages or income for the minimum period you would have been entitled to remain off work, i.e. for as long a period as your doctor so certifies.

Damage is divided into two categories: GENERAL DAMAGES, which is a sum of money given to a plaintiff which in the estimate of a judge represents – insofar as money can – the proper compensation for the plaintiff’s personal injury. SPECIAL DAMAGE is all other damage flowing from the defendant’s wrongdoing and normally and in principle fully ascertainable. Hospital expenses and loss of wages come under this heading. COMPENSATION is the total of general and special damage. The intended principle is that you should be put in the same position, insofar as money can, as you were before the wrong was suffered. Interest on the compensation only runs from the time proceedings are issued. In practice, such interest will only be quantified if the case goes to a hearing.

Settlement

Most claims are settled, generally before setting down. Of those that go to court, most are settled about the time the defendant should or has filed his/her Defence. The majority of the rest settle “at the door of the court”. There are a number of reasons for this. Part of the pleadings may have involved the making of a LODGEMENT by the defendant. This may be accepted by the victim and that is the end of the dispute.

The court system could not deal with a situation where every case needed a hearing. It is cheaper for a defendant to settle before costs of a hearing are incurred.

If, in the opinion of the defendant, you are making too much of your loss or injury the defendant may calculate that the stress and pressure of an imminent court appearance can make the defendant’s offers appear more reasonable or attractive. Conversely, the defendant and his advisers may themselves increase the offer under the same stress and pressure.

(TO BE CONTINUED)…

Locus Standi (“standing�) expresses the obligation on a litigant to show (s)he has an interest in the subject matter of the dispute in legal proceedings.

The rules as to standing vary from jurisdiction to jurisdiction and from issue to issue. The rules may be defined by statute or may be found in the case law.

The parties to a dispute arising from a road traffic accident or a contract will normally have no difficulty showing standing.

The difficulties arise in areas such as planning law, environmental law, or constitutional law.

In The State (Lynch) v Cooney [1982] IR 337 at page 369 Walsh J, stated in the Supreme Court:

The question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is a greater importance to be attached to the facts because it is only by examination of the facts that the Court can come to a decision as to whether there is a sufficient interest in the matter to which the application relates.

In planning matters the leading case is Lancefort Ltd. v. An Bord Pleanala (No.2) [1999] 2 IR 270. There, the Supreme Court, following an examination of the merits of the applicant’s case against the respondent, declined to accord locus standi to the applicant.

In Ireland there is a broad approach to standing in constitutional law cases, exemplified in Horgan v An Taoiseach [2003] 2 ILRM 357, where the court described the Plaintiff’s case on standing thus;

At the outset, counsel on behalf of the plaintiff submits that the plaintiff have (sic) locus standi to seek the relief sought in these proceedings as a citizen of Ireland, relying on the approach adopted by the High Court and Supreme Court in Crotty v. An Taoiseach [1987] I.R. 713, McKenna v. An Taoiseach (No. 2) [1995] I.R. 10 and McGimpsey v. Ireland [1988] I.R. 567.

In Mulcreevy v the Minister for Environment, Heritage and Local Government and Dun Laoghaire-Rathdown County Council [2004] 1 IR 72, the Chief Justice said in the Supreme Court:

While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.

…I would, accordingly, agree with the conclusion of the learned trial judge that the applicant had locus standi to institute the present proceedings.

In Mulcreevy, the Defendants were constructing a motorway partially on the site of some archeological remains of importance. Effectively, the courts acknowledge that there will be no challenges to such threats to the fabric of Ireland’s history if the standing of public interest parties is not recognized and consequent protection to the historical residue is secured thereby. (The High Court declined to permit the application for judicial review on the grounds of delay; the Supreme Court reversed in circumstances where he applicant had shown a high probability of success if his application went ahead.)

O’Higgins C.J. said in Cahill v. Sutton [1980] I.R. 269 at p. 276:-.

This Court’s jurisdiction, and that of the High Court, to decide questions concerning the validity of laws passed by the Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without the exercise of such a jurisdiction, the checks and balances of the Constitution would cease to operate and those rights and liberties which are both the heritage and the mark of free men would be endangered. However, the jurisdiction should be exercised for the purpose for which it was conferred- in protection of the Constitution and of the rights and liberties thereby conferred. Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busybody and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizen’s shield and protection becoming debased and devalued.

There are limits to the Irish broad approach to standing. In Incorporated Law Society of Ireland v Carroll [1995] 3 IR 145, the Plaintiff (a solicitors’ representative body) was denied standing in an application to restrain the Defendant from holding himself out as a solicitor.

In Construction Industry Federation v Dublin City Council [2005] 2 ILRM 256,
the Supreme Court refused locus standi to the applicant, remarking

Unlike many of the cases in which parties with no personal or direct interest have been granted locus standi there is no evidence before the Court that, in the absence of the purported challenge by the Appellant, there would have been no other challenger. Indeed the evidence appears to be to the contrary.

It is reported that Mr. Michael Lynn’s insurers are proposing to void his professional indemnity insurance “ab initio�.

Solicitors must maintain professional indemnity insurance, pursuant to Section 26 of the Solicitors (Amendment) Act 1994. This is to provide indemnity to the solicitor for claims for compensation for loss “arising from his practice as a solicitor� in respect of any description of civil liability.

Normally, the policy of insurance does not cover claims based on fraud. (Gray v Barr, Prudential Assurance Co. Ltd., third party [1971] 2 QB 554.)

The requirement to maintain professional indemnity insurance arises from the danger of making a mistake in professional practice. A solicitor (no less than any other professional) is answerable to a client who suffers loss consequent on any such mistake. Mistakes caused through negligence fall into the description of “civil liability� but do not constitute the category.

The beneficiary of a professional indemnity policy is the insured professional. His client, on whom the loss may have fallen, has no privity with the insurer and, in Ireland, has no entitlement to seek payment directly from the insurer.

The client must make the claim against the professional person. Even in the UK where, under the provisions of the Third Party Rights against Insurers Act 1930, a client (the third party) may claim directly, in some circumstances (insolvency of the insured usually), against the insurer, it is incumbent on the client to effectively obtain a judgment against the insured before being able to proceed against the insurer. (Post Office v Norwich Union Fire Insurance Ltd. [1967] 2 QB 363).

A policy of insurance is a contract. Being an insurance contract it is “uberrimae fidei� which has been defined as

All contracts of insurance are subject to ‘utmost good faith’ in that applicants for insurance are obliged to disclose any detail which may be of importance to the insurers whether or not it is requested.

The policy of insurance for Irish solicitors is an annual one. Such policies are “claims based�. This means the right to claim the indemnity depends on whether the claim made against the solicitor has been made during the period covered by the insurance. The date of the making of the “mistake� is not relevant.

A solicitor (or any professional) could possibly be aware of the making of the error which would give rise to the claim. Frequently, in such circumstances, the client might not be aware of the error and not yet have suffered the potential loss. Indeed, it may the loss which alerts the client.

If a solicitor is aware of any such potential loss, and consequent claim, it will be incumbent on the solicitor, in seeking the annual cover, to reveal that circumstance to the insurer. A failure to do so is arguably a breach of contract by the solicitor and could entitle the insurer to void the policy for the breach of contract.

Given the state of Irish law the injured client has no recourse against the decision of the insurer to take such action. The prospect of real recovery against the professional will be dependent on the solvency of the professional.

Minister Seamus Brennan, on RTE, justifies the Government attitude to CIA rendition flights (kidnap flights) at Shannon by claiming that some “specially trained� Garda officers have reported to the government that there is no evidence of CIA rendition through Shannon.

These Gardai have not inspected the CIA flights. He could not or would not specify the form of their special training, but he was, with the Government, determined to rely on their assurance.

“Specially trained� has no meaning. It might mean “inadequately trained�. It might mean adequately trained for, say, the control of weeds in fields.

When an Indian judge issued summonses directed to two Hindu gods his preferred mode of service was by peon, before he resorted to registered post.

Clearly, practitioners in Ireland should likewise check out the virtues of peon service before resorting to “snail mail”

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

20th December 2007

1. The High Court (Clarke J.) has adjourned the application of the Irish Human Rights Commission (seeking leave to be heard in the proceedings as amicus curiae) to 28th January 2008.

2. The Defendants have indicated they intend to challenge the locus standi of the Plaintiff to bring the proceedings. (Locus standi is a concept referring to the interest of the party or the right of the party to litigate the proceedings).

Undoubtedly the source of the legal analysis that has revealed the alleged flaws in the establishment or powers of St. James’ Hospital and Beaumont Hospital under the Health (Corporate Bodies) Act 1961 was a fresh pair of eyes. And undoubtedly it was a conveyancing or commercial solicitor acting for a putative private investor for a co-located hospital who had those fresh eyes.

Counterfeiting is a complex crime. We currently have the case of the “Power of Death� exhibition in Hamburg. It features terracotta warrior figures from China. The exhibiting Musuem of Ethnology is now arranging to refund the 10,000 visitors their money; the figures are not original.
The museum claims it received express assurances of originality and certificates of authenticity, but some commentators are sceptical of the museum’s innocence. Mr. Grimm, for the organisers, denies he ever asserted the originality of the figures, but even with German art detectives launching an investigation, stressed the accuracy of the facsimiles. The Museum has responded by putting up a sign to the effect;

Some or all of the objects in the exhibition that are said to be authentic may in fact be copies.

So, fake statues may be authentic or may be copies. They may be claimed to be original or not so claimed. Despite the current absence of a defendant, art critics are positive; this is an art crime.

Elsewhere we have the case of Marcus Glindon of Enfield, England, who produced an estimated 14 million £1 counterfeit coins. The coins were not easily distinguishable from genuine coins. He took his instructions from Tom and John, who apparently paid him up to £2,000 per week for his work. He has been sentenced to five years in jail.

Marcus himself made no representations as to authenticity; yet he is a counterfeiter.

A bank may claim to be a client of a solicitor when it is not. Mr. Michael Lynn, for instance, was representing himself where his banks thought he was representing them, or so they may wind up saying.

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

UPDATE (14/12/2007)

The Motion of the Irish Human Rights Commission for leave to appear as amicus curiae was adjourned to Monday 17th December 2007.

It is odd that Irish politicians have resorted to the mantra “…no favours asked and no favours given�, in relation to the disclosure of payments, of one kind or another, to them. As an implied statement of law it is mistaken. A bribe is a payment for a favour, not a payment in return for a favour. Whether the favour is delivered or not is irrelevant (The Public Bodies Corrupt Practices Act 1889 and The Prevention of Corruption Acts 1906 and 1916).

Section 2 of the Act of 1916 established the rebuttable presumption of a corrupt payment where it is made by a person holding or seeking to hold a contract with [..the relevant body] to [..a director or officer or employee of the relevant body].

In short, the intentions of the payee and the recipient are not matters requiring proof by the prosecution in a trial, nor is the fact of delivery of a “favour�.

(The 1906 Act extended the offences in the Public Bodies Corrupt Practices Act 1889 to employees in private employment. Private employers are affected only by the 1889 Act).