Since 2004 the limitation period within which an injured person must issue personal injury proceedings, before being barred from bringing such a claim, is two years.

Because such a person is [generally] obliged to apply to the Injuries Board for an assessment of the value of the person’s claim before proceedings may be issued, time is suspended from running under the limitation period while the Injuries Board is considering the application (and, possibly, corresponding with the guilty respondent or his/her insurance company). Not only does time not run during that period, it does not commence running again for six months after the Injuries board issues its authorisation to the injured applicant to issue legal proceedings.

There is an exception to this regime; if the guilty respondent dies at some point the injured applicant has two years to issue legal proceedings from the date of the death of the guilty respondent. This time period, it appears, does not cease to run because the applicant has lodged an application to the Injuries Board.

It is very possible for an injured applicant to know nothing of the personal circumstances of a guilty respondent. Even the Injuries Board may know nothing of those circumstances; the Board will carry on correspondence with a lawyer or an insurance company acting for the respondent (who, in their turn, may also not know of the state of health of the respondent).

The Injuries Board claims to process applications, on average, within approximately seven months of an application. Depending on the facts of the case this may not be fast enough.

The risk of loss in these circumstances lies with the injured applicant, not with the Injuries Board.

Like all institutions, it is insulated from the effects of death.

The Annual Report of the Injuries Board is always worth reading. It suffers from a persistent tone of self-congratulation but the Injuries Board has access to information previously possessed only by insurance companies and it publishes it, or some of it, in the Annual report and other publications.

The Injuries Board views this information narrowly. It extracts it as statistics and makes little effort to draw conclusions from it.

For instance it remarked of public liability claims for 2009;

“Females accounted for 72% of the 1443 PL awards during the period of this review – over  twice as many (2.5 times) as males. This is a direct reversal of data for workplace accidents where females account for just over a quarter (26%) of awards.”

A curious mind would ask if this is evidence of something, and if so, what? Furthermore, to what use can it be put ? The Injuries Board doesn’t ask these kind of questions.

It is reasonable to speculate that women do more shopping than men; they are more vulnerable to traps or deficiencies in premises open to the public.

If that is the case, what does it say about the Occupier’s Liability Act 1995? Was it, in effect, directed to denying the claims of one sex, women?

The Injuries Board Report goes on to say:

“Just over half (51%) of the accidents under review took place in privately owned establishments, with one in four (25%) occurring in a retail/shopping outlet, one in five (19%) in a hotel/pub/nightclub or restaurant and 7% in leisure facilities like sports clubs/gyms and cinemas. almost a quarter of PL awards (24%) were made against local authorities and a further 8% involved transport and utility services.”

This is peculiar; there is a world of difference between “accidents” and “awards”. Many people who have accidents on the public highway will fail in their claim against a local authority. The reason is, they have to show that they, effectively, were injured at a place where the authority caused the defect which led to their injury. If they cannot show that, where the defect developed from wear and tear, say, they will fail.

This aspect is hidden in the use of “accidents” and “awards”. As they say in trade union circles, one is apples and the other is oranges; in a phrase, they are not comparable.

It’s official; fingerprint evidence is a matter of opinion and not a matter of fact. This is a very interesting subject because the subject is not just fingerprints, (an interesting subject) but the things that we know and the basis for our knowing them.

For instance, Mrs. Quinn contested her liability to repay €3,000,000 to Anglo Irish Bank on the grounds that she did not know that she was borrowing the money and, in fact, never received it.

(I hope this characterisation of her position is correct. If the High Court decided to enter the modern world, it would assign to junior barristers the job of posting pleadings and affidavits, opened in court, on the internet. That would achieve two ends; to conduct its business in public and give employment to junior barristers.)

The court, reportedly, accepted the truth of her contentions but termed her negligent. By that the court meant, negligent in her own interest.

This was wise; neither Anglo Irish Bank nor the court was in a position to conclusively establish Mrs. Quinn’s state of mind in 2006 when she signed the loan documentation.

It was also unnecessary. The burden of proof on Anglo Irish Bank was on the balance of probability. Undoubtedly its loan documentation unequivocally showed that Mrs. Quinn signed up to a loan transaction. (We can know this because of what we know about lawyers; her lawyers would have pointed out any deficiencies. From reports, they did not, therefore there were none).

Consequently it was more probable that she knew what the documentation represented than not and should be held to its terms.

Of course she has a current exemplar in her view of the unreliability of her knowledge of the world. Bertie Ahern has attributed his blamelessness for Ireland’s financial disaster to the fact that nobody told him what was going on in the banks.

“If I had seen the banking crisis coming. Nobody advised me, no economist, all those people now writing books saying ‘I told you so’ – none of them.”

This presumes that we believe him. It also suggests that we can know things and that in the absence of that certain knowledge we are blameless if we are mistaken.

This writer remembers (he thinks) hearing of “culpable ignorance” , a Thomistic concept, at school.

This writer also knows, from experience, how easily people are misled by their mistaken certainties; about what they saw and whom they saw. Being correct in making an identification of persons is so fraught with error that courts must issue warnings about the unreliability of such evidence to juries where prosecutors rely on that evidence.

Notwithstanding we, all of us, can, in principle at least, be radically totally and serenely wrong, like the character in Iolanthe who

“Bound on that journey you find your attorney

Who started that morning from Devon.

He’s a bit undersized and you don’t feel surprised

When he tells you he’s only eleven”

neither Mrs. Quinn nor Bertie Ahern could plausibly sing those lines.

They each of them have lived full active lives in business and politics respectively and in the case of Bertie Ahern, he was the leader of the country, the leader of his party and memorialised by a predecessor as “… the most skilful, the most devious, the most cunning of them all”.

The singer in Iolanthe had an excuse; he was dreaming. Neither Mrs. Quinn nor Bertie Ahern can pass off their mess like that.

What is one to make of the implied threat from the Minister for Justice and Equality? He has suggested that the proposed Legal Aid strike by members of the Criminal Law Practitioners Organisation is of doubtful legality. This may just be bluster. If it is not, he will, presumably, contemplate a range of options. He might:

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

The title to this post is tongue-in-cheek. It is the appellation attached to one High Court judge, deemed too generous to personal injury plaintiffs, by a politically well-connected barrister.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.

This writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

General McClellan had talent. He was good at organization; his record as a railway executive had shown that. Events brought him back into the US army and made him commander of the Union armies, particularly in the east, at the beginning of the US civil war.

When President Lincoln visited him in the field, McClellan kept him waiting outside his tent. In discussion later about this slight, Lincoln said he would gladly hold McClellan’s horse [its reins] if it would assist him [McClellan] in the military effort.

McClellan was the weaker of these men and subsequent events showed this; but so too did that slight.

The US civil war was a political struggle first. The Dred Scott case showed this. With that case, in effect, the US Supreme court opened the way for the extension of slavery into the new western territories. The decision undermined what was a political settlement between the slave-owning states and the non-slave-owning states.

It was an aggressive move by the secessionists.

Judges of superior courts need to understand things like this. Consequently they need to be able to decline to adjudicate on a political question and/or underpin a political arrangement, depending on the circumstances.

Ireland subscribes to a major political arrangement, as nominally expressed in the law of contract; people should be and will be held to their agreements.

With exceptions.

We now know that ideas cast in this form and applied to Dred Scott were deficient. Nobody working for Dred Scott asserted his right as a person to be free; they pleaded the law of the Northern States and Territories and the US Constitution to establish his right to be free.

The mode of thought in the law of contract analogous to an appeal to a human right to be free is to distinguish between the form and the substance of an agreement. This is what we do when we speak of “predatory lending”.

It is not a good thing, always, to borrow money. The form of the borrowing arrangement may be, in substance, a plan to take what property the borrower already has, from him/her.

Businesses in the financial industry are obliged to expressly aver that the “product” is suitable for the “customer”. This is an old idea and is part of the law on the sale of goods.

What if a loan is spectacularly unsuitable to the customer? Who, but the lender, in that transaction is best able to know this?

Consequently, financial claims arising in contract do not all deserve to be heard in summary manner in the High court; some should go to plenary hearing with a full examination of the context in which the agreement was concluded.