Why did it not happen sooner? The UK Government will publish statistics on mortality in National Health Service hospitals.

Are we to think governments disbelieve knowledge revealed by statistics? Well, we should not.

Here in Ireland we have a deep resistance in our government to the disclosure of information. When will we follow the lead of the UK government? The Irish public pays for the HSE and is, in principle, entitled to know something as important as the level of death in our various hospitals. Indeed, there are many other statistical items of information that the public ought to know, like the incidence of nosocomial (health care-institution related) infections or disease associated with our different hospitals.

What is staggering is that the reason the public needs to know such things is to ensure that the HSE management effectively deals with the problems that would be revealed generally. I say generally, because it must be a certainty that the knowledge is already known to the HSE and the Department of Health and Children. It is, in short, already revealed; revealed to some, but not to the public. This is what must be changed.

In O’Connor v O’Driscoll [2004] IEHC the Plaintiff was a bank executive who was injured in a road traffic accident (“RTA�). The court made the following finding;

The case is highly unusual. The physical injuries sustained by the plaintiff were soft tissue damage to his neck and low back as well as some relatively minor damage to three upper teeth on the left side. The plaintiff in addition to these physical injuries also underwent a severe psychological reaction to the accident. Within a few weeks of the accident he developed a very serious Post-Traumatic Stress Disorder. He has also suffered from a major depressive illness and his condition has been complicated by generalised anxiety disorder.�

The court awarded compensation of €579,225 which sum included €100,000 for pain and suffering to date and €50,000 into the future.

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In Hackett v Calla Associates Ltd [2004] IEHC the court found that the Plaintiff had suffered the loss of the sight of his eye with associated scarring ;

The medical reports describe it as a very severe injury to the right eye, including a full thickness laceration of the right upper eyelid and a severe blunt trauma to the globe of the right eye which caused a dislocation of the lens and displacement of the vitreous gel from the posterior part of the eye into the ante chamber, when it was struck by a blunt object. The most recent report when describing the plaintiff’s visual acuity in the right eye states “Perception of light only (totally blind)”.

The court awarded compensation of €100,000

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In Higgins v Smith [2004] IEHC the Plaintiff was injured in an RTA. She was found to have the following injuries;
Multiple abrasions to her face; Fracture of the shaft of her right humerus with radial nerve palsy; Fracture of the left femur; Contusion and bruising to the right leg; Bruising over the right breast.

The court awarded her €130,000 for pain and suffering to date and €25,000 into the future. The actual award was for €147,250 following a reduction for contributory negligence.

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In Curley v Dublin City Council [2004] IESC the Supreme Court affirmed the award of €350,461.72. by the High Court for compensation for personal injury loss and damage. Of that sum €75,000.00 represented general damages for pain and suffering.

Public procurement contracts are very important. See HERE. They are usually complex and involve the expenditure of substantial sums of public money. They are regulated by EU law, the object of which was stated by Advocate General Jacobs as:

[the]…main purpose of regulating the award of public contracts in general is to ensure that public funds are spent honestly and efficiently, on the basis of a serious assessment and without any kind of favouritism or quid pro quo whether financial or political.�

This quote is from SIAC Construction Ltd. v Mayo County Council [2002] 3 IR 148. SIAC was one of many persons who tendered for the provision of a new sewerage system for the town of Ballinrobe. Its tender, on price, was the lowest. Mayo county Council awarded the contract to the next highest tenderer. In the judgment of the County Council’s engineer, SIAC’s tender would, in due course, be discovered not to be the cheapest.

SIAC took issue with the making of this judgment. The case was fought in the High Court. SIAC lost there. It appealed to the Supreme Court which remitted a question to the European Court of Justice (“ECJ�). The ECJ found the County Council procedure to be unobjectionable, saying;

…when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers. Recourse by an adjudicating authority to the opinion of an expert for the evaluation of a factual matter that will be known precisely only in the future is in principle capable of guaranteeing compliance with that condition.�

The Supreme Court (Fennelly J.) noted the difference between the basis for ordinary judicial review and public procurement review saying;

I do not think, however, that the test of manifest error is to be equated with the test adopted by the learned trial judge, namely that, in order to qualify for quashing, a decision must “plainly and unambiguously fly in the face of fundamental reason and common sense.� It cannot be ignored that the Advocate General thought the test should be “rather less extreme.� Such a formulation of the test would run the risk of not offering what the Remedies Directive clearly mandates, namely a judicial remedy which will be effective in the protection of the interests of disappointed tenderers. It is significant, I think, that Member States are required to make available, where appropriate and necessary, measures of interim relief ( i.e., potentially halting the public procurement procedure) and damages.�

Mayo County Council had stipulated that the tenders would be assessed on the basis of what was the most economically advantageous contract. The contract was “a measure and value contract�. This meant that the contractor was free to do the work and get paid for the work on the basis of work done. Effectively, any tender was an estimate of what the work would cost.

Consequently, Fennelly J. concluded;

It is the fact that the out-turn is uncertain that is decisive. I think that the County Council acted within its margin of discretion. I do not think it exercised that discretion in an unfettered way. It followed objective and objectively verified criteria.�

The existence of absolute privilege (in the Oireachtas and the courts) is generally known. The existence of qualified privilege is less well known. There is a qualified privilege for words spoken, without malice, to protect property or detect crime. The leading UK textbook on Defamation, “Gatley on Libel and Slander� states:

Though there is no common interest involved, the Courts have long held that statements are privileged if made bona fide for the purpose of detecting and bringing to punishment a suspected criminal, or of recovering stolen goods. Thus, a person who suspects another of a particular theft may, with a view to inquiry, tax that individual with the theft, and although the suspicion turns out to be erroneous, the law gives no redress to the party accused.”

Consequentially, in the High Court case of McCormack v Olsthoorn [2004] IEHC the Defendant, wrongly believing the Plaintiff had stolen a plant from him, publicly challenged him to that effect. The court ruled that the statement was made on an occasion of qualified privilege and found for the Defendant on that issue. (The Defendant lost on the issues of assault and false imprisonment).

[McCormack v Olsthoorn MAY REST ON ITS PARTICULAR FACTS. ARGUABLY, THE DEFENDANT COULD HAVE DEALT WITH THE MATTER A LITTLE DIFFERENTLY. WAS IT UNAVOIDABLE OF HIM TO SAY WHAT HE SAID, IN PUBLIC?]

We in Ireland are very unfashionable. We are the laughing stock of Europe because we use pencils to vote, the laughing stock of Europe because we might reject the Lisbon treaty and our Financial Regulation is a laughing stock.

Now, we risk being the laughing stock of Australia (and the UK in due course) because none of our lawyers have sold shares in themselves.

(Just to mention the topic is to expose us to derision.)

Have the lawyers not sold themselves already?�

These reactions are unfair because they are based on unfair comparisons. Consider Slater & Gordon the Australian law firm.

Despite the wording of their (its?) website their principal business is litigation for the recovery of compensation for personal injury. This is a form of business that the Government and the Minister for Enterprise Trade and Employment in particular, have attempted to curtail at considerable loss to victims of personal injury as seen HERE and HERE and HERE.

The business that the government favours is the business of insurance. (Almost invariably the direction of the defence in personal injury litigation is given by an insurance company, in the name of the defendant.)

So, Slater & Gordon’s business model would not appeal to the investors in the Irish Stock Exchange.

So, what business model would work here in Ireland? Undoubtedly it will be the business model ultimately adopted in England and Wales. However, as noted HERE, there are growing potential and actual differences between the two jurisdictions which will probably ensure that our legal behemoths down the Liffey will not make it to the market.

There is need for a new charity to be established in Ireland. It will seek out people suffering personal injury. It will advise that the injured person (“the victim�) should immediately consult a solicitor to determine whether there is a cause of action arising from the incident in which the victim was injured.

The need for this charity arises from the terms of Section 8 of the Civil Liability and Courts Act 2004.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action may—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action� means—

(a) the date of accrual of the cause of action, or

(b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed,

whichever occurs later.

Very few people are aware of the Section. It is draconian. It places an onus on a victim of negligence or other wrongdoing to write the required letter to the wrongdoer at a time when most such victims are struggling with the practical consequences of their injury and, often, are still in hospital.

If the letter mistakenly describes “the nature of the wrong� (what does that mean?) then the victim has failed to comply with the Section. This is a reason for the need for the services of a solicitor to deal with the requirement.

Everybody is presumed to know of the Section. Not to know of it is not “reasonable cause�. To know it (which is the presumption) and not to write the letter leads to the inference that the victim wished to gain advantage at the expense of the wrongdoer. (It is hard to know what other inference might be drawn. To draw an inference is to follow a mental process that is independent of the actual intention of the victim.)

A failure to write the letter may result in a penalty (possibly a substantial one) being inflicted on the victim. Ordinarily, a successful litigant in a personal injury action is awarded the costs of bringing the action. The Section permits that some or all of the victim’s costs be denied him/her. This is a very heavy penalty. Even in the circumstances of the exercise of a judicial discretion it is hard to see how the Section will avoid being exercised in, objectively, a capricious way.

The title to this post is incorrect. The concept of war crime shows this. I have written elsewhere that legal proceedings are not a search for truth. Nevertheless, in legal proceedings, as in war, there are limits to restrain the parties.

The Supreme Court marked its disapproval of failures by lawyers for the Defendant in Philp v Ryan and Bon Secours [2004] IESC. The court found that the 1st Defendant had altered his clinical notes. As altered, they appeared to show that the Plaintiff was to have a PSA test in 6 weeks. In fact no provision was made for such a test. The Plaintiff, who was suffering from prostate cancer, was misdiagnosed by the 1st Defendant. Eight months later the Plaintiff discovered the misdiagnosis and issued proceedings pleading that his life expectancy was reduced due to the Defendants’ negligence.

The 1st Defendant misled his lawyers and medical advisors. Consequently the Defendants’ defence was to the effect that the Plaintiff was responsible for the loss of eight months treatment and not the 1st Defendant.

Almost on the eve of the proceedings commencing, the 1st Defendant informed his lawyers what he had done. They did not correct the wrong impression and understanding of the Plaintiff’s lawyers as to the defence the Defendants intended to mount. The lawyers for the 1st Defendant continued to represent, in the manner in which the defence was presented, that the Plaintiff had been advised to have a PSA test and had failed to do so. The Supreme Court found that there was at least a suspicion that there was a deliberate attempt to keep the true facts from the [High] court.

Consequently the Court awarded aggravated damages to the Plaintiff, increasing the High Court award from €45,000 to €100,000.

Even in the midst of happiness there is dissatisfaction. In Horan v O’ Reilly the High Court implied a term of agreement between the members of a Lotto syndicate that a member who had not paid his contribution was entitled nevertheless to a share in a winning bet.

The terms set out below, if followed, should preclude such a result.

Transcribe the precedent into Word and insert a Table at the bottom with column headings as shown.

LOTTO SYNDICATE AGREEMENT

THIS AGREEMENT sets out the terms on which the Syndicate will play the Irish National Lottery and/or the Euromillions Lottery.

1. The Syndicate Manager is ________________________________ or such successor as is unanimously agreed by the then current Members. In the absence of dishonesty no liability whatsoever shall attach to the Syndicate Manager for failure to discharge any term of this Agreement.

2. Members of the Syndicate join by signing this Agreement.

3. Membership persists thereafter (in the absence of resignation) conditional on:

a. Payment of contributions in accordance with this Agreement;

b. Compliance with the terms of this Agreement;

4. The Syndicate Manager shall;

a. Collect and record all contributions and place and record Syndicate bets;

b. record each Member’s stake in the Syndicate;

c. determine the numbers for the Syndicate bets;

d. place the Syndicate’s bets on the Tuesday and/or Friday of each week.

5. Members shall share wins in direct proportion to their respective percentage entitlement.

6. A Member shall pay to the Syndicate Manager his/her contribution not less than 2 weeks in advance of the relevant day referred to in 4 (e) above and the contributions will be held on trust by the Manager for the Members.

7. For the avoidance of doubt, no Member shall share in a win where the Member did not make timely payment of his/her contribution to that winning bet.

Signed by the Manager & Members this day of 200

Witnessed by:
(Full name and address)

SCHEDULE OF MEMBERS

NAME % OF PRIZE DATE JOINED DATE LEFT Signature of Member Signature of Manager

Dr. Watson and his companion, Sherlock Holmes, have previously featured in this site HERE. They had a conflicted relationship with the police but were, emphatically, independent. If they were now to move from Baker St. to Pembroke St., say, they would possibly require a licence from the Private Security Authority.

The Authority was established by the Private Security Services Act 2004.

It defines a “private investigator� as follows:

“private investigator� means a person who for remuneration conducts investigations into matters on behalf of a client and includes a person who—

(a) obtains or furnishes information in relation to the personal character, actions or occupation of a person or to the character or kind of business in which a person is engaged, or

(b) searches for missing persons;

This is very general and might extend to Sherlock Holmes if not to Dr. Watson himself. The doubt lies in the question of remuneration. I do not recall payment ever having been made to Holmes and Dr. Watson never got paid.

As chance would have it they would, in queuing for their licences, find themselves in the company of “bouncers� who are defined as follows:

“door supervisor� means a person who for remuneration, as part of his or her duties, performs any of the following functions at, in or in the vicinity of any premises or any other place where a public or private event or function is taking place or is about to take place:

(a) controlling, supervising, regulating or restricting entry to the premises or place,

(b) controlling or monitoring the behaviour of persons therein,

(c) removing persons therefrom because of their behaviour;

This is reasonably specific. It is, however, clearly dependent on “premises� and “events�. The requirement to be licenced (advertising excepted) is contingent on those elements being present.

Not so for Holmes. He would require his licence if he agreed to “conduct investigations�, which he often did following his first meeting with the client.

We know what was notable about the Holmesian “investigations� but the Holmesian methods are not a requirement for the obligation to be licenced to arise. Section 3 of the Act exempts, inter alia, Gardai and Defence force personnel from the provisions of the Act.

Exemptions aside, anyone who “conducts investigations� for a client, for remuneration, is required to have a licence.

That appears to include, road traffic accident investigators, other accident investigators, forensic auditors and planning consultants, does it not?

Giving evidence carries risk. A general medical practitioner may find s/he is asked whether the injury was to the ulna or the radius. If this causes the witness difficulty it is a demonstration of Murphy’s law. The ulna and the radius are bones in the arm. If your arm is broken you will in all likelihood be treated in a hospital. A hospital setting facilitates continued familiarity with the bony structure of the arm. In general medical practice detailed knowledge of human anatomy may recede with graduation and the conclusion of training. (It should not but it might, understandably.) So, patient X has a broken arm; it was treated in a hospital and the patient attends the general practitioner for prescription purposes. The doctor’s record of attendances and complaints are relevant.

If the doctor attends to give evidence (an unlikely event in Ireland in current times) s/he will consult with the lawyer of patient X before giving evidence. The discussion is about attendances and complaints. Nobody mentions the name of the bone that was broken. Its name is not relevant. Nevertheless, that very same lawyer is the person most likely to ask the question of the doctor; was it the ulna or the radius? The lawyer assumes the doctor knows and remembers everything related to the practice of medicine. This is obviously unreasonable but is a necessary assumption to, say, carry the lawyer through a series of questions that have not been properly considered by the lawyer.

The consequence is the (minor) embarrassment of the doctor, sitting exposed in the witness box, and revealed as not being able to distinguish the ulna from the radius.

What lawyer knows everything related to the practice of law? None.