The government seems to have a furnace somewhere to dispose of old banknotes, such is their fondness, to the point of habit, for burning public funds.

Why else does the taxpayer have to pay for a contaminated pork recall?

After all, we know with reasonable, if not perfect, certainty where the contaminated pork originated.

We appear to know that the output of that factory accounted for 10% of Irish pork in the retail market. That, in the judgment of the Government, justified the recall.

Why is the taxpayer the unwitting insurer of the farmers, the factory, the processors and the retailers?

Was the recall not, again, an incident of a market loss? Is there some large Irish Insurer whose policies cover this loss and whose business cannot be allowed to fail for unknown reasons?

Is there a peculiar and particular meaning to the phrase “a perfect market”, in Ireland?

The law in Ireland and the law in England and Wales appears to be re-converging on the point (if, in fact, there ever was a divergence) that the existence of a contractual relationship is not incompatible with a duty in tort to avoid inflicting economic loss on someone.

Almost as a matter of course when the phrase “economic loss” appears, it will be with reference to matters pertaining to a building contract.

That was the case in Tesco Stores Ltd, v. Costain Construction Ltd. & Ors. [2003] EWHC

The judge in Tesco stated his finding as follows:

… I find that Costain assumed a duty of care to Tesco to carry out the work which it itself, rather than any sub-contractor, in fact did pursuant to that agreement with the care and skill to be expected of a reasonably competent building contractor. That work potentially included both physical work of construction and the making of decisions as to design, in the sense explained by May LJ in the passage which I have cited from his judgment in the second Bellefield case. I find that that duty did extend to not causing economic loss, for the reasons which I have endeavoured to set out.”

The liability of a builder/designer is contingent on the contract not having excluded a liability for negligence and the remedy for that is to read the terms of any contract to ensure no such liability is excluded.

Of course there are other difficulties for aggrieved property owners as was seen in Irish Equine Foundation Ltd. v. Robinson [1999] IEHC.

Here, the court decided, as a preliminary issue, that the Plaintiff’s claim was statute barred under the Statute of Limitations 1957.

The lesson is this; when the builders leave, carefully examine the work, time is running!

The Government has sent out Mr. Batt O’Keefe TD, Minister for Education etc. to explain what the Government has decided to do about the criminal organisations named in the Ryan report.

Having heard him, one is reminded of what Antoine de Saint-Exupery said of his like;

Commonly, people believe that defeat is characterized by a general bustle and a feverish rush. Bustle and rush are the signs of victory, not of defeat. Victory is a thing of action. It is a house in the act of being built. Every participant in victory sweats and puffs, carrying the stones for the building of the house. But defeat is a thing of weariness, of incoherence, of boredom. And above all of futility.”

Owners of property are generally aware of the need to take out insurance policies against loss or damage to the property. It is foolish to think, for instance, that if something falls from the sky onto a building, a viable claim in negligence will subsist against some person to pay for the damage caused to the building. Furthermore, as a practical matter, it is foolish to think that even if such a claim were to validly subsist, that that would be easily converted into the full recovery of that compensation.

See Dempsey & Anor -v- Waterford Corporation [2008] IEHC for a lesson on this. The Plaintiffs were owners of a premises in Waterford. One fine day their lovely parquet floor buckled under the effects of a leak of sewerage into the building and under the floor. The sewerage had come from an ancient culvert running under the building. That culvert in turn entered another culvert running down beneath the public street outside the Plaintiff’s building. Something down the end of the street culvert had caused it to become blocked and the sewerage had backed up into the Plaintiff’s premises.

The Defendant corporation had recently renewed the sewerage in the city. It had no knowledge of the culverts and did not connect them to the new system. The Plaintiff contended that this was negligence on the part of the corporation and/or it was nuisance. (The culverts were on no maps available to the corporation; the Plaintiffs, too, had not known of the culvert under their building).

The Court disagreed. It found no evidence of negligence and no evidence that the corporation caused the nuisance and, therefore, in the absence of negligence the nuisance claim also failed.

I see from the television that Brian Lenihan TD, Minister for Finance thinks (so he says) that the Government does not have access to batteries of lawyers (unlike the criminal organisations named in the Ryan report). Consequently, he implies, the Government can’t undo the deal done by Michael Woods and Bertie Ahern (his party members) with those organisations.

As Will Rogers said, its easy being a humourist when you have the whole government working for you.

Michael Woods TD, while he was Minister for Education etc., made an arrangement with certain religious orders as to the obligation of the orders to pay for the physical, including sexual, abuse of children in their care.

That arrangement, it transpires, was astonishingly generous to the religious orders. Their liability was limited to €127,000,000; the real cost of the liability will exceed €1,000,000,000.

The real cost has emerged from the Commission to Inquire into Child Abuse. The Commission has recorded the instances of abuse; looked at the general circumstances in which the abuse took place, and has determined the sum appropriate to compensate the individual victim.

The Government has said that it cannot, for legal reasons, (unexpressed and unexplained) re-open the arrangement with the religious orders.

Presumably, (we do not know) this is a suggestion that the “arrangement” is
a contractually binding agreement.

That suggestion is questionable. Firstly, such a “contract” would be very unusual. To see how unusual it would be, it is necessary to reflect on what a religious order is; generally, it is a group of people with fluctuating and varying membership but enduring through time. It would closely resemble a partnership. Often the property of the order would be held by trustees for the purposes of the order.

In principle, and it has been found to be so in the abuse cases, the order can itself be guilty of crimes committed by its individual members.

It is the criminal element that makes the arrangement very unusual. It is not often that a criminal seeks the protection of the courts to enforce an agreement absolving him/her from the consequences of criminal behaviour.

Secondly, the criminal parties to the arrangement with Michael Woods knew of their crimes; he, presumably, did not. Even if he did, an agreement to suppress the State’s obligation to prosecute crime or to relieve the perpetrators of liability in whole or in part for those crimes would be contrary to public policy. The agreement, far from being binding, would be unenforceable.

This would be just. To conceal their criminal responsibility was a deceit. Deceit in the making of a contract is a basis for claiming a repudiatory breach of condition.

In short, the Government, far from claiming it cannot, for legal reasons, re-visit the question of the liability of the orders to pay for the abuse should be claiming it cannot, for legal reasons, avoid re-opening the issue.

(The title to this post is a reference to a phrase popular in France during the Napoleonic era of propaganda – “to lie like a bulletin”).

This post is about words. In fact it proposes a conscious effort by the State to preserve some words or at least to promote them.

Perhaps the Royal Irish Academy could leave off running the Irish Secret Service (what else could it be doing, save that?) and discharge the job.

The first word to be promoted, I suggest is “rere”. It is a Dublin spelling of a word referring to the back of something, typically a house. It clings to life, written, I think, only on rubbish bins in Dublin city centre, as a direction to where the bin properly belongs in relation to its building. It dates from Cromwellian times. The UK has forgotten the word (and much else besides of Cromwellian times, and issues).

“Rear” is already carrying too heavy a load in the form of “rearing horses” and “rearing children”.

The second word is “mawkish”. The current Taoiseach, in his fashion, has adopted this concept in his (unattributed) communications to the Irish media. Now he should expressly adopt the word, come clean, and admit that his soulful references to the loneliness and responsibilities of power are mawkish.

As part of the assault on the constitutional rights of personal injury victims, the Minister for Justice etc. procured the making of a requirement, of such victims, that they write a letter to the person guilty of inflicting the injury within two months of that infliction. That requirement is found in Section 8 of the Civil Liability and Courts Act 2004.

A failure to write the letter within the time may lead to the victim failing to recover legal costs against the wrongdoer, depending on what the judge in the case thinks.

Lawyers have a good word to describe such a provision; that word is “calculated”. The provision is calculated to have considerable downside for the innocent victim, even if it is never put to the test.

Who will feel sufficiently brave to fight to the last ditch, knowing that the letter was not written and that the judge is an unknown quantity?

In short the victim’s morale will be sapped.

That was what the Minister intended.

When Napoleon invaded Italy in 1796 an immediate objective was to steal shoes. His army was poorly supplied and the soldiers were often barefoot. Given the success he achieved by speed and manoeuver, arguably the stealing of the shoes was necessary. Napoleon thought so, and who, now, would second-guess him?

However, what if he had had to seek permission to steal the shoes, beforehand?

That is, metaphorically, what an applicant for discovery in the High Court must do.

In High Court litigation a party to an action will not get discovery from his/her opponent even of relevant documents without demonstrating that the documents are necessary to conduct the litigation.

The Statutory Instrument specifies that the applicant depose that:

…the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs.”

This is a staggeringly bad idea. It implies that is possible to be complicit in, effectively, suppressing documents, and be ACTING FAIRLY.

It also implies that it is open to debate that, when a party has furnished copies of incriminating documents to the other party, there would not be a saving in costs in the litigation (by dint of the rapid capitulation of the miscreant or the economy with which his wrongdoing may be proved).

It is not to be forgotten that Section 4 of the Vagrancy Act 1824 was in regular use by the State until the decision in King -v- The Attorney General [1981] I.R. 233.

Under Section 4 a “suspected person” and a “reputed thief” could be convicted of an offence of, in practice, trespass. Not so, upstanding members of society.

As the court said in King;

…the ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, soprone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the Judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”

What is forgotten (not adverted to at all) is that the impulse to categorise persons so that some are to be victimised and others are not, is general.

For some time now, the Government and its supporters have consciously tried (and succeeded) to demonise plaintiffs in personal injury actions. This process has been underway for a long time. It began at least as far back as the 1980’s with the abolition of the civil jury in Ireland for personal injury actions. Under the civil jury system, a panel of ordinary people decided what the appropriate compensation should be for an injured plaintiff (subject to parameters decided by the Supreme Court).

More recently, the establishment of the Personal Injuries Assessment Board was widely seen as calculated to disadvantage plaintiffs in personal injury cases.

The fullest expression of this demonisation was seen in the Civil Liability and Courts Act 2004. This Act introduced radical new procedures and requirements particular to personal injury actions. Plaintiffs in such actions now had to face more and more obstacles in seeking the delivery of their constitutional right to redress.

This attitude has resulted in the growth of strange ideas. As an example, consider a fatal injury action. (Furey v Fitzpatrick & MIBI IEHC (1998)). The defendant has been negligent and has caused the death of a breadwinner. The dependants are entitled (under the Civil Liability Act 1961) to seek compensation for, among other things, the loss of income resulting to them from the death of their breadwinner.

However, the defendant then discovers something completely irrelevant to the issues in the action; the deceased person was not paying his/her proper taxes, if at all. The defendant now submits to the court that the dependants ought not to be compensated for their loss. (The defendant changes the focus from his/her wrongdoing to the supposed wrongdoing of the deceased person). This chutzpah received a respectful hearing in the High Court, less so, in another case, in the Supreme Court, but that it was given an outing at all is a warning of the ease with which what is called “the legal climate” can be used to ride roughshod over the rights of people who, inevitabley, are all alone when they confront their opponents, where the opponents have laid the ground for the battle long before they meet the plaintiff.

There are many important issues which are never discussed on doorsteps with political candidates at election time, but ought to be.