Occasionally this blog contains a misspelling. I have, for instance, misspelled “Brian Cowen” as “Brian Cowan”.

Nobody was misled; indeed, I was corrected by a reader.

There is, however, a human type that is radically intolerant of the mistakes of others. Alternatively, that type is inflexible in thought. Alternatively, these are human traits which some people have and others do not; and some people have both traits.

The result is that when a solicitor composes a letter for his/her client and writes;

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on 12 January 1995. . .”

the solicitor is fixed (not any more) with the serious consequences of failing to exercise a break clause for the Tenant.

If the solicitor had written:

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on the third anniversary thereof. . .”

there would have been no error. The third anniversary of the lease in question fell on 13th January 1995 and not 12th January 1995.

This was the issue in Mannai Investment Co Ltd v. Eagle Star Assurance [1997] UKHL

Lord Hoffman referred to Mrs. Malaprop’s line (in the play “The Rivals) “She is as obstinate as an allegory on the banks of the Nile”, to explain why the law should change on the interpretation of such notices. Most people understand what Mrs. Malaprop says; indeed they also understand that her mistake is a joke and is intended by the playwright (Richard Brinsley Sheridan). (For the sake of the joke, the playwright conflated crocodiles with alligators, there being no alligators on the banks of the Nile).

The judge went on to say;

Mrs. Malaprop’s problem was an imperfect understanding of the conventional meanings of English words. But the reason for the mistake does not really matter. We use the same process of adjustment when people have made mistakes about names or descriptions or days or times because they have forgotten or become mixed up. If one meets an acquaintance and he says “And how is Mary?” it may be obvious that he is referring to one’s wife, even if she is in fact called Jane. One may even, to avoid embarrassment, answer “Very well, thank you” without drawing attention to his mistake. The message has been unambiguously received and understood.”

Lord Hoffman, with the majority, allowed the Tenant’s appeal.

The mistake of the Tenant or its agent was to fail to calculate when the third anniversary fell. Indeed, as a practical matter the mistake was to calculate it at all, as can be seen from the suggested form of the notice shown above.

As Lord Hoffman pointed out, nobody was misled.

The title to this post is incorrect. The concept of war crime shows this. I have written elsewhere that legal proceedings are not a search for truth. Nevertheless, in legal proceedings, as in war, there are limits to restrain the parties.

The Supreme Court marked its disapproval of failures by lawyers for the Defendant in Philp v Ryan and Bon Secours [2004] IESC. The court found that the 1st Defendant had altered his clinical notes. As altered, they appeared to show that the Plaintiff was to have a PSA test in 6 weeks. In fact no provision was made for such a test. The Plaintiff, who was suffering from prostate cancer, was misdiagnosed by the 1st Defendant. Eight months later the Plaintiff discovered the misdiagnosis and issued proceedings pleading that his life expectancy was reduced due to the Defendants’ negligence.

The 1st Defendant misled his lawyers and medical advisors. Consequently the Defendants’ defence was to the effect that the Plaintiff was responsible for the loss of eight months treatment and not the 1st Defendant.

Almost on the eve of the proceedings commencing, the 1st Defendant informed his lawyers what he had done. They did not correct the wrong impression and understanding of the Plaintiff’s lawyers as to the defence the Defendants intended to mount. The lawyers for the 1st Defendant continued to represent, in the manner in which the defence was presented, that the Plaintiff had been advised to have a PSA test and had failed to do so. The Supreme Court found that there was at least a suspicion that there was a deliberate attempt to keep the true facts from the [High] court.

Consequently the Court awarded aggravated damages to the Plaintiff, increasing the High Court award from €45,000 to €100,000.

In a personal injury case, acting for the Plaintiff, we fought for three and a half days with about a day and a half still to go, when we settled. When the settlement was announced to the judge he asked for the figure at which we settled. On learning it, (he should not have asked and on asking should have been met with a demurrer) he remarked it was IR£30,000 too much.

It was a moment of pure (unfair) competition. The parties had struggled for three and a half days and now the judge had leaped into the forensic arena, cuffing the Defendant’s lawyers.

The apotheosis of competition was the chariot racing in ancient Rome.
There were four teams, identified by the colours red, white, blue, green. When the Emperor Domitian introduced Purples and Golds, they endured only for the residue of his reign.

Life expectancy for the drivers and the horses was short.

At least in the practice of civil law we do not run those risks, and although a law suit can be a contact and spectator sport it is possible to encounter a law suit that is just pure fun.

The “Association of Trial Lawyers of America�? changed their name to the “American Association for Justice�?. (There is an essay waiting to be written on that alone).

Some non-AAJ lawyers then formed “The Association of Trial Lawyers of America�? whereupon the AAJ issued proceedings against TheATLA to prevent them from misleading the public (presumably among other things).

How can you lose in following that case?

We cannot avoid unpleasant facts forever. So, not only do the lawyers become judges but they thereafter scandalize the world (the non-lawyer world anyway; lawyers know more than they can tell).

Perhaps it is all an accident [somewhat like a wardrobe malfunction]; perhaps it is badness or the corruption of power. Who is to say?

Time, maybe, to look to Cardinal Charoni di Tempranillo for a cool sceptical attitude to these events. Although tolerant, he would surely advert to the counterfeit aspect of some judges.

But, you say, the US Supreme Court judges have grasped to their robed bosoms the fakery of a male Judge Judy. How can the counterfeit be false if it is endorsed by the Court, despite his being “roughed up�?, as the press put it?

In truth, the acceptance of the case for consideration by the Supreme Court reveals the real problem. It is a representative court, infected with the preposterous notion that only a socially sanctioned procedure (litigation) can be the basis for the making, publically, of a moral judgment, exemplified by the fallacy that if Michael Mukasy does not define torture the US cannot be condemned for the use of torture.

At the risk of appearing neurotic I note the happy outcome in Analog Devices BV & ors -v- Zurich Insurance Company & anor [2005] IESC.

Rather than being a focus on insurance (a satisfying field) I think it is more akin to word gratification on my part. The case turned on the interpretation of the meaning of exemption clauses in the policy.

The Plaintiff was in the business of manufacturing silicon wafers. The value of the wafers was high, Due to the fitting of an incorrect filter on a machine during annual maintenance a loss extending to 10 day’s output was incurred

The Plaintiff sought indemnity from its Defendant insurer who pleaded the benefit of exemption clauses in the policy.

When the Supreme Court uttered these words

This, of course, begs the questions of what is an error and when was it made,

the Defendant was in trouble.

To get the benefit of the exemption clauses the Defendant argued that annual maintenance was a part of the manufacturing process. The Supreme Court and before it, the High Court, would have none of it.

The case was clearly of a type relished by lawyers as witnessed by this:

In the written submissions of the appellants before this court there is an attempt to rubbish the qualifications of the legal expert in relation to Massachusetts law called on behalf of the respondents and there is also a criticism that the learned trial judge, to some extent at least, interpreted the American case law himself and decided the issues arising on the global policy based on his own opinion rather than the opinion of Massachusetts legal experts. Both of these criticisms are ill-founded.

Trial lawyers in Ireland (barristers) generally wear black gowns; they sometimes enter a ninja-like state and confuse their words with ninja “stars�?.

In commercial life the next worse thing to finding you have no insurance is to find that your insurer is trying to welsh on the insurance contract.

You find you have doubled your troubles; you are the Defendant in proceedings and you are compelled to be the Plaintiff in proceedings against your erstwhile insurer. (“Erstwhile�? is wrong; “current�? is usually more accurate).

This was the situation in Cara Environmental Technology v McGovern [2005] IEHC

In the events that happened the High Court, on hearing a preliminary point of law (not always an appropriate recourse), had no difficulty holding that the Defendant (a solicitor acting as nominee for, from experience, Lloyds of London) had breached the insurance contract and triggered the Plaintiff’s entitlement to issue proceedings against the insurer for that breach. This meant that the Plaintiff could bring those proceedings without awaiting the outcome of the proceedings in which it was the Defendant. This of course, was very important; a successful Plaintiff in those proceedings might put the insured into insolvency if the need arose.