Generally, we expect High court judges to intend to do justice on a persistent basis. (Despite the title of the Department of Justice, Equality and Law Reform, we expect less from the Department, it being a bureaucracy).
Nonetheless it appeared necessary to the Oireachatas to enjoin judges to do justice. We see this in Section 28 of the Civil Liability and Courts Act 2004.
(Of course the foregoing is a fiction. Our Executive has ensured that the Oireachatas does not function correctly; somebody other than the Oireachats decided the terms of the Act).
Section 28 reads:-

“28.—(1) In a personal injuries action (other than an action under section 48 of the Act of 1961), any income, profit or gain in respect of which—
(a) the plaintiff is making a claim, and
(b) (i) a return has not been made before the hearing of the action in accordance with the Taxes Consolidation Act 1997 , or
(ii) the plaintiff has not otherwise notified the Revenue Commissioners,
shall, for the purposes of assessing damages, be disregarded by the court, unless the court considers that in all the circumstances it would be unjust to disregard such income, profit or gain.”

This provision bristles with difficulties for a judge. Whatever the judge decides, an appeal court could and probably would take a different view. The Section implies that some people will get the compensation and some people will not. Why? We do not know, and not to know is wrong. The fact that a Defendant is insured must be a deciding factor, otherwise the decision to withhold compensation would result in tax foregone by fraud (or error?) being credited to an insurance company.
Is it possible that one or more insurance companies procured the insertion of this Section into the Act?

Yes it is. We see from the Irish Times that a committee of bankers’ representatives was designing legislation (for banks) as late as 2008.
Now we know how Government works.

The frequency with which patients are injured in Irish hospitals is very high. The current estimate is of 160,000 per year.

Who knows the exact figure? Presumably, the Health Service Executive does. If it does, why is that information not made public? If it does not know, why does it not know?
Let us assume that the HSE is a competent body and infused with goodwill towards the patients. Would it not be a good idea to try to eliminate the causes of accidents or adverse events? If it is such a body, should it not direct all the health care institutions under its control to investigate adverse events to analyse how an accident or adverse event occurred, to prevent its repetition? If such an analysis took place would the findings not be required to be disseminated to the staff? Otherwise how would the staff know what to look out for to avoid repetition?
Now, in the light of the foregoing, is there a system in Irish hospitals of recording and reviewing adverse events? It appears there is not. The evidence for this is a) practical experience of looking for records and documents and discovering an absence of such notes recording relevant events and b) we are forced, at a macro level, to guess or estimate the level of adverse event occurrence as evidenced by public conference statements.
Admittedly, the hospital could omit written records and could call a conference of staff for the second Friday after the event to discover what went wrong and resolve, collectively, to try to avoid a repeat of the event in the future. No notes would be kept of this conference.
Why did the Supreme Court not canvass such possibilities in Doherty v Reynolds and St. James’s Hospital [2004] IESC? In that case the Plaintiff had heartburn. Following his operation to deal with his complaint he discovered quickly that he had an injured shoulder. Before he left the hospital he complained of severe pain in his shoulder to, sequentially, a nurse and two doctors (one of whom was the anaesthetist in the operation). He was sent home. His GP, on the same evidence, referred him to Beaumont hospital, which, on the same evidence, admitted him for treatment.
The Supreme Court although remarking:-

“I have not the slightest doubt that the trial judge in this case was entitled to accept the evidence of the plaintiff, his wife and Father Flanagan as to the complaints of severe pain and limitation of movement in his right shoulder and arm that the plaintiff was making in the immediate aftermath of the operation. The absence of any records of these complaints by any of the hospital staff is certainly remarkable and reflects, at best from their point of view, a singularly inadequate system of record keeping. It is clear that the plaintiff, who had gone into hospital for an operation intended to deal with a condition of heartburn and acid reflux but was otherwise in normal health, came out suffering from a painful and disabling condition in his right shoulder and arm which did not respond to any treatment until some six years later: so much, at least, is not in dispute in this difficult case.”

- went on to reverse the High court verdict in favour of the Plaintiff and order a new trial because it disagreed with the High court finding that the principle of “Res Ipsa Loquitur” applied in the case.
The hospital staff gave evidence of their usual practices. The evidence was that such practices were safe. They, generally, said they had no recollection of the individual events of the Plaintiff’s operation. This was unsurprising; they were giving evidence seven years after the event. However, there was an exception; one nurse did have an individual recollection. Beaumont hospital had raised a query with the surgeon, who in turn, raised a query with one of the nurses. This happened in the month following the operation. Thus, the High court had evidence that the Plaintiff had complained of his injury while still in St. James’s hospital and Beaumont hospital had enquired, in its investigations of the Plaintiff’s injury.
Why was there no investigation by St. James‘s hospital following these complaints? In fact there was; it appears, on the evidence, it was confined to a conversation between a surgeon and a nurse.
Bearing in mind that the Supreme court thought that the hospital had “…a singularly inadequate system of record keeping”, it was remarkably indulgent in accepting that evidence from staff, of what they would ordinarily do, as opposed to what actually happened, was a sufficient response to the Plaintiff’s evidence. It was reasonably clear that the High court judge believed that the hospital staff were culpably ignorant and that the failure of the hospital to call ALL its witnesses was to be deprecated (and justified his implied conclusion of culpable ignorance).
On a global view, the HSE, it would appear, supported by the Supreme court, thinks ignorance is bliss.

Michael O’Leary, presumably, finally sought or was given proper legal advice. We can presume this from his craven back-pedaling we saw in the last few days.
He firstly refused to comply with Ryanair’s obligations, to compensate his customers for cancelled flights, under Council Regulation 261/2004, stating his obligations in terms of contract obligations only.
The next day he, cack-handedly said Ryanair would meet its obligations. He was cack-handed because the manner in which he made the concession was misleading; it suggested he had not changed his position and that customers were not entitled to any of the benefits he should have given to them.
If it were not for the fact that he referred to the Regulation obligations as “absurd” one would think he did not know of the Regulation, but he clearly did. What, then, changed his mind? What did he not know?
Despite the shameful failure of the Irish Government to introduce the possibility of conducting “class actions” in Ireland, O’Leary may have finally realized that he was going to be plunged into class actions in the UK.
Without exception, Ryanair travelers are “consumers” under EU law. Consequently, they are entitled to litigate disputes with Ryanair in the consumer’s place of residence.
Many of Ryanair’s customers were UK residents; they were going to issue proceedings in the UK. There, they could, and surely would, band together and litigate their claims as a class action. By this means they would off-set the advantage of size that Ryanair has over any single consumer, a circumstance perpetuated in Ireland by the sullen laziness of successive Irish Governments. (All that is required is to amend the Rules of the Superior Courts; something the Minister for Justice etc. could do in a flash).
As a measure of the power and benefit consumers would get from a class action, O’Leary folded just at the possibility of being at the receiving end of one, not waiting to find out what the experience would be like, an experience Brian Cowen will deny to Irish consumers even as he is driven from office.

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 (21/4/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.
2. McGarr Solicitors act for Digital Rights Ireland Ltd.
3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.
4. Judge McKechnie reserved judgment on those issues before the Court.
5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.
6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.
7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.
8. On 21st April 2010 Judge McKechnie informed Counsel for the Applicant and the State that he intended to deliver his judgment on 30th April 2010.

Under Section 15 (3) of the Valuation Act 2001 State property is not rateable. Consequently, there is no obligation to pay rates on such property.

The Section reads:

“Subject to section 16 , relevant property, being a building or part of a building, land or a waterway or a harbour directly occupied by the State (including any land or building occupied by any Department or office of State, the Defence Forces or the Garda Síochána or used as a prison or place of detention), shall not be rateable.”

We have not heard (it’s early days) what proportion of the property taken by NAMA from the banks is now occupied by NAMA.

We need answers to some questions:

Is NAMA “the State”?

What does “occupied” mean?

A lot of money hangs on those questions.

This blog has not been silent on negligence by auditors. See HERE and HERE and a suggested remedy to deal with major frauds HERE.

Every audit will follow a plan. If there is no plan, that’s evidence of negligence. The plan will show whether or not the auditor did his/her job properly. Of course if the “auditee” posts sudden enormous losses, that is evidence that there was a major problem in the auditee. Why did the audit not pick up those losses?

A profitable area for examination would the valuations of assets furnished to the auditee. Those valuations may have been provided by “independent” agents (auctioneers), commissioned either by the auditee or a third party. If those valuations were radically wrong that is a basis for litigation against the valuer to recover the loss arising from the deal or property which was the subject of the negligent valuation.

However, an auditor is obliged to take account of the possibility of fraud. Just because a valuation is on a file from an “independent” agent the auditor is not relieved of his/her obligation to consider whether the accounts show a true and fair view of the fiinances of the entity being audited. The fraud may be in the valuations.

Under the Prosecution of Offences Act 1974 most criminal prosecutions are in the charge of the Director of Public Prosecutions (“DPP”). Some offences are assigned to other legal persons (e.g. Government Ministers) for processing in prosecution by the statute under which they are created.

In fact most criminal prosecutions are brought by members of the Garda Siochana in the name of the DPP.

Before the 1974 act the prosecutor was the Attorney General. Consequently, it was, before 1974, a social fiction imposed on the nation that the decision to prosecute or not to prosecute was taken by the Attorney General without regard for the fact that he was a highly politicised figure, held his post at the behest of the Taoiseach and was the confidante and counsellor of the Governement and its members.

The DPP has no role in the investigation of crime. He (or she) receives a file from the Garda Siochana. The file contains the available evidence. The DPP decides, on the evidence in the file, to prosecute or not to prosecute and whether to prosecute on indictment (in the Circuit Court or Central Criminal Court) or summarily (in the District Court).

Prosecutions on indictment are “contracted out” to barristers in private practice. It is a valuable connection to be on the panel for work coming from the DPP.

Ideally, such a person would have considerable experience in criminal cases. That experience can be gained only when working in defence of prosecutions (otherwise the prosecution of offences would be placed in the hands of inexperienced practitioners and that, it is submitted, ought not to happen).

Experience, it is hoped, should dampen zealotry. It is not the job of a prosecutor to “win”, but to facilitate in doing justice. The steady presentation of the available evidence is the job of the prosecutor. That evidence must be such that there is left no reasonable doubt as to the guilt of the defendant.

In fact, the DPP has issued “Guidelines for Prosecutors”. stressing the need for the prosecutor to act honestly, fairly, impartially and objectively. The Guidelines enjoin the prosecutors to;

“(k) carry out their functions honestly, fairly,
consistently impartially and objectively
and without fear, favour, bias or prejudice;”

This is fine in theory, but the decision to prosecute is often made in circumstances where the complainant, sometimes inevitably, has a private grudge against the accused. It is, in such circumstances more important than ever that the circumstances in which the prosecutor got his or her experience qualifying him or her to get work from the State, should have no bearing on whether the private grudge can be advanced at the expense of the public purse and at no risk to the complainant and great risk to the accused.

President Kaczynski of Poland died with, among others, his wife in the Smolensk air accident. Death of spouses simultaneously is called Commorientes.

If they had been Irish, probably they would have owned their residence in joint names (in joint tenancy). The effect of this form of ownership is to vest full ownership in the survivor. Significantly, the property never becomes part of the estate of the first partner to die. However, commorientes defeats this process. Which died first?

Under Section 5 of the Succession Act 1965 simultaneous death is presumed in some circumstances.

Under Section 68 of the Civil Law (Miscellaneous Provisions) Act 2008 a joint tenancy in commorientes is converted into a tenancy in common in equal shares and each share forms part of the estate of the deceased partner.

Here are some issues not addressed so far (in the papers I read).

(A) Quinn Insurance has a board of Directors. Sean Quinn is not on that board. The board has said nothing about the seizure of the company by the Provisional Administrators. Sean Quinn never stops talking about it and issuing press releases and public statements, including TV interviews.

Is he in fact in charge of Quinn Insurance?

This is possible. Under Section 27 of the Companies Act 1990:-

“…a person in accordance with whose directions or instructions the directors of a company are accustomed to act (in this Act referred to as “a shadow director”) shall be treated for the purposes of this Part as a director of the company…”

Does the Financial Regulator know anything about this that we don’t?

(B) Quinn Insurance has been accepting professional indemnity business from British solicitors. The mind boggles. Every now and again a wave of mortgage fraud sweeps Britain. Irrespective of whether the solicitors are complicit, the claims are numerous and large. It is very difficult to calculate the proper premium to match the risk. It is not easy, either, to refuse indemnity; the insured solicitors can fight.

Ireland is currently coming to the consideration of profound derelictions of duty of a number of people, including and particularly, leading politicians.

The generalized defence coming out is that someone else was responsible.

The law has long had to deal with that kind of response. A solicitor, for example, is not entitled to say that he/she is following the advice of Counsel; that advice must be assessed by the solicitor and not be blindly followed.

Probably a nurse should not follow a doctor’s directions where they are clearly and obviously wrong. A pharmacist should not dispense a prescription where the pharmacist knows or should know that the wrong drug is being prescribed (or the perception is of such; bad handwriting should be considered).