Solicitors acting for land/building purchasers deliver “Requisitions on Title” to the vendors. The requisitions are direct questions addressing a range of issues of possible concern. Now that there is little or no conveyancing to be done it would be best to look at the process now and again to keep it fresh in the mind of the profession.

So, what to answer if asked,

Given its position, please confirm that the property has never suffered from flooding.”

Well, in this case HERE the reply was:-

Our clients confirm that the property has never suffered from flooding during their 14-year occupation.”

The sale closed and the purchasers found that the Thames river (at the bottom of the garden) flooded the property.

The purchasers have sued the vendors; the case is ongoing.

In cross-examination the vendor emphatically denies misleading the purchasers; he meant “the building” when he referred to “the property”. The building had never been flooded; just the garden, and that less than claimed by the purchasers.

So, Irish conveyancers, my reply to that purchaser’s requisition would have been:-

this is not a requisition on title”

On receipt of rejoinders my reply would have been:-

purchasers should make their own enquiries”.

We in Ireland have a precedent for this case and consequently practitioners should wake up when they see the reference to “the Vendors…say…..” in replies to requisitions.

Vendors often say more than their prayers.

As this is written, the public perception of AIB and Bank of Ireland is that they are solvent. They may not be. If they are not, the Government, or part of it, knows it. The Government, although it is silent on the point, is in that case, in effect. perpetuating the illusion of the banks’ solvency. This split between what is officially the case and what is really the case is common. We have seen recently that, although they were not directly protected by the State, we slowly, and by chance, learned that Liam Carroll’s property interests were financially unsustainable with Paddy Kelly’s likewise, followed by Bernard McNamara’s. These truths, easily comprehended when brought to view, are part of the more obscure greater truth, that the crash of these property interests was facilitated by massive Government failures and that the possible insolvency of the banks was caused by the Government.

The recent apology from the British Government to the victims of the Thalidomide scandal reminds us of what is required when important issues are denied or ignored; quality journalists.

In the UK they had the Sunday Times “Insight” team under Harold Evans. As editor of the Sunday Times, Evans refused to knuckle under in the face of Distillers’ court injunction preventing the newspaper from publishing the truth (to the extent then known) about the cause and history of the dreadful birth defects that had appeared as a result of the use of the Thalidomide drug by women. (Distillers was the distributor of Thalidomide).

(Ironically, given the title to this post, a newspaper of the name “Sunday Times” continued to exist after Harold Evans left it, but it was not what it had been; Rupert Murdoch owned it then).

At the crucial time and on the central issue, openness, the UK courts came down emphatically on the side of Distillers and attempted to impose secrecy.

Here in Ireland, if there were to be a reprise of that struggle we can not be sure that the courts’ response might not be equally inadequate.

The reasons for this are twofold; access to public records is still regularly denied as a consistent Government policy, and, within the court system, access to paper and electronic records is a matter of chance and whim. The Government has not only set the policy of “closed” administration, it has written the legislation to make it legal to refuse access to public records.

There has been general astonishment at the findings of the High Court inspector into the “Fyffes” and “DCC” insider dealing transactions.

The inspector found that, Mr. Jim Flavin, having received legal advice, broke the law as to insider dealing, but, in the light of the advice, did so inadvertently.

Oddly, the judge who appointed the inspector to conduct the investigation said, in making the appointment:

The earlier proceedings were concerned only with the civil law and did not have to address culpability or responsibility of persons who may have advised or planned the transactions.”

How did that interesting idea fall by the wayside, as it appears to have done?

We learn from the Sunday Business Post that NAMA may pay less than it previously indicated for the Irish Banks’ loans to be handed over to it (starting this very month, reputedly). We do not know anything further about this. We do not know if the report is accurate. We do not know if the report is a malicious falsehood leaked to the SBP to mislead critics of NAMA.

NAMA is a scandal. It is a scheme to transfer taxpayers’ money to private institutions without a rational justification. The irrational justification (“long-term economic value”) was mooted by the EU Commission, but it hedged it about with many conditions. We have no idea if the Irish Government and the Irish Banks have complied with those conditions. The EU did not mandate secrecy like this.

That the SBP can publish its, presumably, bona fide report and miss the real story; that its sources are unreliable and clearly manipulative of public opinion; that NAMA clearly thinks it is acceptable in this polity to behave in such a fashion and is to be condemned for it (rather than facilitated) and that covert administration is Wednesbury irrationality and a basis for Judicial Review of NAMA is a howler of a journalistic error.

The Minister for Transport has suggested that he will require the occupiers of premises adjacent to public footpaths to clear them of snow and ice.

He has also, unfortunately, indicated that the occupier will be exempted (by the Minister) of legal liability arising from that obligation.

Why bother?

If the occupiers are free of consequences for failure, they won’t clear the pavement in the first place.

The Minister’s proposal is not suitable for legislation; it is suitable for a proclamation. He is, in effect, proposing to issue a call to arms, directed to the Nation, enjoining the citizens to embrace goodness and to avoid evil.

(The title to this post comes from one of my Christmas presents; a series of CDs of episodes of “Jeeves and Wooster”, starring Hugh Laurie as Bertie and Stephen Fry as Jeeves. My particular interest is in the Drones club and its members; it helps to understand current Irish politics by realizing that the Drones are in charge)

(Slippy pavements are not our major problem; NAMA is the big problem).

Our offices are, almost, in Lower Bridge Street and I travel down Clanbrassil Street daily to get to them. It is an ironic occasion every morning for me to join the single lane of traffic traveling north on Patrick Street in front of St. Patrick’s cathedral. Until recently there were two lanes for the north-bound traffic; now, one is a dedicated bus lane.

In 1953, Dublin Corporation determined to ensure that traffic would not be hindered by narrow streets like Clanbrassil Street and Patrick Street. They should be widened, it felt. The Corporation persisted in this feeling from 1953 to 1989 when it finally built a “dual-carriageway” along [some of] Clanbrassil St. and on into Patrick Street.

The fact that the planned Compulsory Purchase Order, to implement this, undermined the values of the properties along the west side of Clanbrassil Street and Patrick Street, from 1953 onwards, is neither here nor there.

What is of moment is this: we no longer care about traffic, that is, the private motor car. We have changed our viewpoint. We cheerfully squeeze it daily into a narrow traffic lane in Patrick Street. That’s not the only change. Dublin Corporation is now Dublin City Council: it hasn’t gone away and it is still an institution of vision.

Currently, it has a vision for a waste incinerator in Ringsend. Perhaps we need such a thing. But will we always? Will we always think it a good thing to burn rubbish? To burn it within the city?

The answer is yes, because the operator of the proposed incinerator will compel us to do it, under the terms of a contract signed by it and Dublin City Council.

Peculiarly, the property rights in rubbish may be more easily defended than the property rights in buildings.

The mark of a good court judgment is its intellectual quality. Some, unquestioned on delivery, are revealed as dubious with the passage of time.

There is nothing compelling about the decision of the Supreme Court in Attorney General v Hamilton [1993] 2 IR 250.

In that case, the Supreme Court decided that the collective responsibility of the Cabinet (the Government) under Article 28.4.1 implied a constitutional bar on the disclosure of dissenting views in Cabinet.

The one does not follow the other of necessity. It may be the norm that dissent is not disclosed; it may be better that disclosure not take place, generally; but it may sometimes be a good thing to make disclosure of dissent. The Supreme Court closed that off. It did so with no significant history of disclosure by Cabinet members (other than selective “leaking” by, usually, the Government itself).

The Taoiseach has adequate powers of discipline to control the members of the Cabinet. If he (or she) cannot use those powers effectively, that is evidence of a political crisis and indicates there ought to be an election. For good reason, the Courts should steer clear of situations like that.

The decision has had bad effects. It endorses a damaging idea of Government; one where the freedom of the Executive to act without challenge and with impunity is put at a higher value than the principle that the interests of the electorate are paramount.

It is a deeply anti-democratic view.

There is an argument to be made that the broad statement in the blog post “Slip and Fall” acknowledging impunity for public authorities for non-feasance is wrong.

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.

Just before Christmas, Ireland suffered a number of flooding instances. They did not all have the same cause and cannot all be termed “acts of God”. (Few events in Ireland would qualify in that category).

Dempsey v Waterford Corporation [2008] IEHC featured a case of flooding causing, the Plaintiff alleged, an actionable nuisance. In the case the Defendant was found not to be liable, principally because it did not know of the existence of the sewer from which the flooding came. The law of nuisance requires that the nuisance be caused by the Defendant or be continued by the Defendant after gaining knowledge or means of knowledge of the nuisance. (In short, if the Defendant did not know of the nuisance but ought to have known of it, he will be liable.)

Nuisance does not require proof of negligence on the part of the Defendant. It does not require the Plaintiff to prove the Defendant caused it. It requires the use of land or adoption of use, detrimental to the Plaintiff’s use of his land.

The nuisance is complete if the “use” is complete; in short, the arrival of rain water is not necessary to complete the nuisance, just the conditions on the land that will and do cause the flooding. A blocked or inadequate culvert would qualify, for instance, as a nuisance.

When the Plaintiff proves the nuisance, the onus to exculpate himself falls on the Defendant.

The remedy for nuisance can extend beyond compensation to injunction. The compensation will be an amount sufficient to put the Plaintiff back in the condition he/she was before the wrongful event.

It is an obligation of an advocate, in cross-examination, to convey to the witness the evidence the advocate intends to adduce to rebut the evidence of the witness. This is called “putting” the case to the witness. The witness will have the presumed opportunity to comment on the “case” of the advocate’s witnesses.

The potential penalty for failure by the advocate to do this is a prohibition by the court on the advocate adducing evidence contradictory of the witness’ evidence. In fact, the advocate will, in such circumstances, concede the failure and ask for leave to, belatedly, “put” the case to the witness or witnesses. This may not be convenient (it usually is not) and may be impossible. It will certainly cost money. The cost will be met by the advocate’s client. The court ensures this by permitting the witness to return, conditional on the advocate consenting to an order against his/her client on the costs.

There are often matters on which the advocate has no evidence to present in rebuttal. That does not preclude the advocate from seeking to challenge the witness on the point or points. However, the advocate is not permitted to leave the witness under the mistaken impression that the challenge is the “putting” of the advocate’s case. To avoid this, the advocate “suggests” to the witness that “…………….”. This formulation is a signal to the witness that the advocate is asking the witness to agree or disagree with the advocate and that the advocate is not going to call rebuttal evidence.