To a lay person, hearing that somebody has been sentenced to life imprisonment, it might appear that the prisoner will never be released. This will rarely be the case.

A life sentence is an indeterminate sentence.

The constitutionality of this particular indeterminate sentence was endorsed in Lynch v Minister for Justice [2010] IESC

McGarr Solicitors represent a client, in his challenge to a variety of indeterminate sentence, before the High Court, and will report the outcome of the case in due course.

I have PIP Breast Implants, what is my problem?

You have a medical problem and, consequently, a legal problem. The medical problem exists because the breast implants are almost certainly defective.

Why do you say the PIP Breast Implants are “almost certainly” defective?

Poly Implants Prothese SA. (“PIP”), a French company, bought the silicone and, since 2001, used it, fraudulently, to manufacture most, if not all, of its human breast implants.  These implants were, in turn bought by various clinics and doctors and offered for use to Irish women.

In what way are the PIP Breast Implants defective?

The defect lies in the fact that the silicone of which they were made was intended by the silicone manufacturer for use in mattresses, not in human breast implants. It is believed that the PIP breast implants have a higher than average rate of rupture than rival, safe, products.

Is this a serious defect in the PIP Breast Implants?

If the breast implants do not rupture, it is probably not a problem. However, in all cases of fraud, as this one is, it is not possible to exclude the possible presence of toxic substances in the breast implants. If that is the case the problem is not just serious, it is serious and acute.

What is the advice of the medical profession?

“The medical profession” does not have anything to say about PIP breast implants. Sources of opinion with medical qualifications on the issue range from the French, UK and Irish regulators to the doctors or clinics that fitted the breast implants. Each of these sources is, to a greater or lesser degree, conflicted.

What do you mean by “conflicted?

This is where your medical problem becomes, in part, your legal problem. There are reasons to think that the regulators, in their respective ways, were not up to the mark in addressing the problem, either in anticipating it, or in responding to it. More importantly, the doctors or clinics that fitted the breast implants should not be consulted on the correct medical or legal response for you to take now.

Whom should I consult?

You should consult a cosmetic or plastic surgeon who has never fitted a PIP breast implant in a patient. You should bear in mind that he or she will be awaiting, like you, the outcome of various investigations into the health implications of the fraudulent use of non-medical grade silicone in human implants.

Should I consult anybody else?

You should consult a solicitor. Don’t forget, you have a legal problem.

What is my legal problem?

Put bluntly, you are going to, sooner or later, suffer loss arising from this problem. The first loss is the cost of getting medical advice now. When a decision is made by you to have the PIP breast implants removed, there will be a cost to that. Then you will probably require replacement breast implants fitted (in the same operation, presumably). That is another element of the medical costs that cannot be avoided. These medical operations, although elective, are imposed on you by the crisis and will entail pain, suffering and inconvenience as well as direct costs. You are entitled to compensation for that pain and suffering.

Who is going to pay me my compensation?

The person or persons that you successfully sue will, if they are solvent, pay you your damages.

Whom should I sue?

Well, you do have a cause of action, or legal basis of claim, against PIP, but it is defunct and under criminal investigation in France. There is no point in suing PIP unless you are certain to receive compensation at the end of your litigation. Instead, you should examine your legal relationship with the clinic or doctor that fitted the PIP breast implants.

Why? Surely they knew nothing of the PIP fraud?

That is irrelevant to any liability they may have. Their liability arises in the law of contract. The PIP breast implants were fitted in consideration of payment by you. That constitutes a contract between the clinic/doctor and you. The Sale of Goods Acts 1893-1980 will apply to this contract. Under Section 14 (2) of the Acts, a condition is imported into such contracts, that the goods are of “merchantable quality”. This means that the goods must be fit for the purpose for which they are commonly bought. Under Section 14 (3) of the Acts the goods must be as durable as it is reasonable to expect. Your burden of proof is to establish that, on a balance of probability, the breast implants were and are unmerchantable. You would do this, if the defendant denies it, by evidence from an expert. Liability under the Sale of Goods Acts 1893-1980 is strict. A retailer (in this case a medical clinic) cannot successfully plead that the defect in the product was not its responsibility. It is responsible for both patent and latent defects.

Will I have to go to court?

Yes, in principle. The Injuries Board has no role in such disputes. You will have to give evidence of the contract you made with the defendant/s and the additional costs they have imposed on you, but the significant evidence, if the defendants refuse to settle the claim, will come from your expert.

How long will it take?

That depends on the response from the defendant/s. If you go all the way to the door of the court, it might take twelve months.

It is not usual to have a very clear piece of balderdash in an Act.

Here is one in the Credit Institutions (Stabilisation) Act 2010.

Section 4 of the Act recites the purposes of the Act, including:

(c) to continue the process of reorganisation, preservation and restoration of the financial position of Anglo Irish Bank Corporation Limited begun with the Anglo Irish Bank Corporation Act 2009

Anglo Irish Bank no longer exists. It is now called Irish Bank Resolution Corporation Ltd. and it will never be “restored” to its “financial position” or any other position.

Irish lawyers do many things. Some of them work for rentiers. Some of them work for big business. Some of them work for farmers. Some of them work exclusively in criminal prosecutions, for the State and State bodies. Some of them work exclusively in criminal prosecutions, for the defence. Some of them are unemployed.

Some of them work in politics as politicians. In his book, “The Burden of Responsibility” Tony Judt examines one of those, Leon Blum. Leon Blum was a lawyer, albeit French. Judt contrasts him with the other lawyer-politicians.

He says:

“At a time when most French politicians were either mediocre provincial worthies or else phrase-making businessmen and lawyers cynically unconcerned with ideas or ethics, Blum stood alone.”

A lawyer could be like Blum, or be “…unconcerned with ideas or ethics”.

No fair person could think that the lawyers at Public Citizen lack ideas or morals. They have campaigned for a long time against the use of arbitration to ensnare ordinary people. They say;

“People who have been harmed by fraud, predatory lending, discrimination, negligence, defective products or scams should not be forced into arbitration: they should have a choice.”

(Most people would think that “reckless lending” and “predatory lending” are, invariably the same thing. If so, predatory lending is lawful in Ireland. See ICS Building Society v Grant [2010] IEHC.)

Ireland recently expanded the possible use of arbitration here. Of immediate interest are Sections 21 and 31 of the Arbitration Act 2010.

Section 21 effectively disables any attempt to disentitle consumers to an order for costs in an arbitration where the consumer is successful in the arbitration.

Section 31 effectively disables any attempt to force consumers into arbitration where the dispute is for a claim exceeding €5,000.

The implications are clear; if you are a consumer and you bought a product or a service [and your claim exceeds €5,000 in value] you can and will be bound by any arbitration agreement in the “standard” agreement you made and you will be liable for the costs of the arbitration if you are unsuccessful.

Yes, you will need a lawyer or even lawyers, if you find yourself in this kind of trouble. Lawyers, regardless of what they are doing, are doing it to earn their living, among other things. Get ready to pay for the service and remember why you needed the service in the first place.

Canard: An unfounded or false, deliberately misleading story; a duck.

“I will introduce this imminently, by the end of January.”
-Sean Sherlock, Sunday Business Post, 23rd January 2012

First, I’d to clarify that Minister of State, Sean Sherlock TD, has
emphasised that he has not put forward any proposals to enact a “Stop
Online Piracy” type Law.

- He intends to bring in a vaugely worded law permitting copyright holders to seek injunctions without any explicit safeguards for fundamental rights, including injunctions to block access to websites for Irish users. He may not have called it SOPA Ireland, but let’s not listen to whinges about the characterisation.

Second, I’d like to emphasise that the need to legislate arises from a finding of the High Court in October 2010 that Ireland was not in
compliance with its EU obligations under Copyright Directive 2001/29/EC as the High Court found itself unable, under existing primary legislation, to
grant an injunction against an intermediary.

-Actually, the urgent impulse to legislate comes from the case of EMI Records [Ireland] Ltd and Ors -v- Ireland and Anor which was filed on the 10th Jan this year.

As you will appreciate, failing to be in compliance with our obligations under EU law is a very
serious matter.

- Well, it is the European Commission’s job to police breaches of EU law. They haven’t even said they think there is one here. So, they don’t seem to think it’s that serious. Or, if you prefer, they don’t think we’re not in compliance. Which also wouldn’t be that serious.

Third, I believe it is important to emphasise that no policy change is proposed in the Statutory Instrument. It had been the intention of the Copyright and Related Rights Act, 2000 to provide civil remedies such as injunctions and it was assumed that the Act did, in fact, provide for such remedies until the High Court found otherwise in the case of EMI Ireland & others v. UPC in October 2010. The wording of the proposed Statutory Instrument has been framed in a way which gives effect to the wording of the EU Copyright Directive rather than extending its scope.

-Changing a law is far more significant than changing a policy. It was assumed the original Act did something. Then a court found it didn’t. The SI is now being assumed to do something. A pity that all this assuming can’t be replaced with an explicit statement of what the law should do.

The intended purpose of the proposed Statutory Instrument is not to enact new EU legislation but, rather to restate the position that was though to exist in the Copyright legislation prior to the EMI Ireland case.

-Well, sure. But then, that was the intended purpose of the original act. Look where intending things got us there.

Last July Minister Sherlock held a public consultation in relation to the wording of a proposed Statutory Instrument amending Section 40 of the Copyright and Related Rights Act, 2000. More than 50 submissions were received from interested parties, providing an excellent overview of all the issues and concerned involved. Minister Sherlock has engaged extensively with interested parties in respect of their views and concerns.

-Odd. Here’s a letter sent from our office on 20th October 2010. We never got an invite.

At the time, the then Minister was only talking about meeting “both sides”- the record companies and the ISPs.
Sean Sherlock took the same “both sides” line on Drivetime with Michele Neylon.
Mind you, after 80,000 people pointed out they were also concerned with his intentions, he arrived at a new formulation “I reiterate this is about balancing the rights of Internet users, Internet businesses and the copyright holder”

The legislative measure is expected to be introduced shortly.

- I think this is where we came in.

McGarr Solicitors have considered the problems of Irish women who have been fitted with breast implants manufactured by Poly Implants Protheses SA. (“PIP”).

You can read our views on our other website Personal Injury Ireland.