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.

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.

Most right-thinking lawyers are Social Democrats.  Mary Robinson declared herself to be such. Such lawyers find themselves thinking about the social purposes of law and reject the radicalism of individualism.

A Social Democrat will favour consumer protection; an individualist will not. To be radical rather than redundant, without explaining what you are radical about, is to be an anarchist and an anarchist thinks little about consumer rights. Even when you do explain what you are radical about you may reveal that, indeed, you are an anarchist.

The title of this post is a phrase from one of our opponents in a law suit. It was his gloss on interpretation of an Irish statute of 1952. We never knew, until he claimed it, that Ireland had a command economy in 1952 and still do not. (We are less certain about the economy of 2011).

These thoughts are prompted by the case of Noreside Construction Ltd. v Irish Ashphalt Ltd. [2011] IEHC

Here, the Plaintiff was constructing houses in Dublin on contract to the Local Authority. The Defendant supplied aggregate for use in the foundations. The Defendant failed to alert the Plaintiff that the aggregate contained pyrites. Pyrites are not suitable for house foundations; they cause upheaval and destroy the integrity of the construction.

The Defendant contended that its terms and conditions, as printed on its delivery dockets, were effective in excluding liability for consequential loss and limited any claims to the cost of replacing the aggregate itself.

The court found that the Defendant was wrong in thinking that its terms and conditions formed part of the contract; they did not. Furthermore, the contract contained an implied term of the merchantability of the product. (Student lawyers hear a lot about merchantability; practising lawyers less so).

To buy a house is the most significant purchase most people will make. It is the ultimate consumer purchase. That the consumer’s rights and remedies might in some way be constrained by the outcome of a “battle of the forms” between two commercial entities is not a rational ordering of social affairs. (It might require deployment of all the resources of both the Plaintiff and the Defendant in Noreside Construction Ltd. v Irish Ashphalt Ltd. to pay for the  presumed loss to the purchasers of the houses).

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Sometimes, counsel’s opinion is just plain wrong. Of course, sometimes clients get what they insist on having. From the outside it is not always easy to see what caused the disaster, as in MMP gmbh v Antal  International Network gmbh.

According to the judgment the Plaintiff was alerted to the danger of advancing the case for compensation on a basis of a reduction in value of the corporate plaintiff itself.

When that proved unpersuasive, the evidence adduced on quantum was discounted and the court was left without any evidence on which to base an alternative claim. In effect, the plaintiff won on liability and lost on quantum.

All duck or no dinner!

The title to this post is a misnomer; it implies that there is one single location where the law on limitations of action is stated. This is not the case, but it is the colloquial method of referring to the issue.

The issue is this; at what point and in what circumstances will an alleged injured person (injured in body, property or reputation) be prevented from maintaining legal proceedings, for redress, due to delay in bringing the proceedings? All common law jurisdictions have a system for preventing the bringing of stale claims.

For lawyers, this is dangerous territory. If a lawyer makes a mistake about this issue (by failing to issue proceedings in time, say) it may, by definition, be impossible to rectify the mistake. The consequence of this error will be the loss to the plaintiff client of a chance to litigate the claim in court. The claim will be statute-barred. However, a new claim will then arise; the claim against the lawyer, for the error.

This is bad for the lawyer, but also for the plaintiff. Such a claim, for professional negligence, will not necessarily be as good as the original claim. It is, of course, undesirable from the point of view of the lawyer.

The current law in Ireland fixes different periods of time for the bringing of actions, depending on the nature of the claim (the legal basis for the claim). In addition, the law contains exceptions to the general rule or rules. (The principal exception is that for infants and “persons under a disability”.) Then there are the exceptions to the exceptions. Of course, there is the uncertainty as to who is a person “under a disability”.

The foregoing is enough to show why the territory is dangerous; it is strewn with “landmines” and it is easy to step on them. The Irish Law Reform Commission shares this opinion.

We see this in Griffin v Calally [2008] IEHC. Time was running in that case, the defendant said, having assured the plaintiff that it, the defendant, would not deny liability.

Cautious lawyers would, in these circumstances, adopt the attitude of Nathan Bedford Forrest; “… git there fust with the most men”.

This is in contradiction to current notions of “mediation” and “conciliation”. They are fine ideas, but in their proper place; postponed until after the issue of proceedings.

We have variously done the following;

1. Warned Builders of the difficulties clients may present when you seek payment.

2. Warned Builders of the problems inherent in the practice of the client holding “retention money” as a security for the builder fixing any problems arising later.

3. Warned of the difficulties flowing from undertaking building work without a written contract;

4. The problems for clients when builders “buy” a contract and re-negotiate it to their advantage later, after they have started work.

5. Warned again of the difficulties flowing from undertaking building work without a written contract;

Now we write about the steps you must take when you don’t get paid. Most building or engineering contracts will have an Arbitration clause in some form or other. If so, it will be mandatory that the dispute be taken to arbitration. Get the help of a solicitor or a “claims consultant” to draft the papers for the arbitration. Depending on the nature of the dispute it might take a long time to produce workable drafts but it is essential work.

When the identity of the arbitrator is agreed he/she can give directions as to how the parties should proceed. It is wise for claimants to have anticipated the production of workable drafts.

The conduct of an arbitration by the claimant or the respondent is like the conduct of litigation; it needs the services of a litigator.

If a respondent is still trading (not in liquidation) it is open to the claimant to take the claim to arbitration with some prospect of making a recovery.

Unless we are practicing politicians (I mean of the Fianna Fail ilk) we should aspire to speak clearly and mean what we say.

“Inflation” is a term applicable to balloons and economies; we should remember that, when as here, the issue is economic inflation.

One of our clients holds the view that economic inflation is the mechanism by which certain social costs are transferred to the shoulders of old age pensioners. (Central government would, presumably, profess to avert such an outcome, because if it did not it would, we think, be removed from office, other things being equal). Our client might have expanded the opinion to include all persons on fixed and relatively low incomes.

The client’s view carries an implicit assertion; such a mechanism can be an engineered outcome. In short, the Government may desire exactly what it professes to decry. Or not.

We cannot afford to expend much effort to find out motivations; we should act on perceived outcomes.

Consider the “new” Public Works Contracts HERE. They were introduced in 2007 and are obligatory for use in State building projects.

They promptly came under criticism when introduced. (Who formulated them? We, here, think we know, but that is irrelevant; they were introduced on instruction. The Government gave the instruction).

See HERE for an extended treatise on what is wrong and unfair with the contracts.

There is nothing inherently evil about the Irish construction industry that the Government should seek to impose unfair costs in it. Those costs will fall inevitably on workers and their families.

It is beyond time to urgently revoke the provisions that saddle the industry with these contracts.

Education is not the focus of this blog. Prior reference to the Department of Education is made as an aside.

Construction and the construction industry is, however, a focus. It is instructive to get a judgment on anything, instead of the usual bureaucratic fog of words. So check out this article from “Construction Manager”

“Ireland: Setting benchmark costs
From a UK perspective, school building costs in Ireland are almost shockingly low. In February 2006, the Department of Education set a maximum build cost for primary and secondary schools of €1,230/m2 (£1,095), including VAT at 13.5%, but excluding site preparation and groundworks, professional fees and contractors prelims.
In November 2009, the DoE dropped the building cost limit to just €990m2 (£880). In fact, recent tenders have been coming in below that: according to Galway-based contractor JSL, the going rate for the building element is €600-€750/m2.
But the specifications expected in the two countries really aren’t comparable. Classroom sizes are smaller in Irish schools, there is no catering provision or dining halls, while floor, wall, ceiling and door finishes are all basic. Steve McGee FCIOB, JSL’s director of construction, says that it’s like visiting a “two-star hotel” compared to four stars in the UK.
Secondary schools are all individually designed, but primaries are based on the DoE’s “generic repeat design”: four variations each on 8, 12 and 16-classroom schools.
The DoE has also built “rapid delivery” primary and secondary schools using prefabricated timber SIPs or concrete panels in just 20 weeks. And it recently tendered two Passivhaus primaries, although McGee says the DoE was disappointed with the cost: JSL’s unsuccessful bid was €1,600/m2.
Ireland’s strict cost limits no doubt galvanised the market and put pressure on suppliers and product manufacturers. Unified procurement also meant no variation in procedures around the country, so learning from one project could be taken to the next. But the market struggled with the Passivhaus project.”

For solicitors, the statement, in Replies to Conveyancing Requisitions, “Vendor says no” is common and fateful. It lay behind the difficulties inflicted on the purchasers of landlocked premises in Doran & Anor v Delaney & Ors (No. 2) [1998] IEHC 166; [1999] 1 IR 303; [1999] 1 ILRM 225 (25th November, 1998).

It invites consideration of the need for tone in Requisitions or Rejoinders; something like; “So?” or “Is that so?”

Students of history might recall the phrase “… to lie like a Bulletin…”, in currency in France during Napoleon’s reign. It is not just in Bulletins that lies are propagated.

Not that Vendors commonly lie; to Purchasers or their solicitors or Vendors’ solicitors. No, indeed, but a sceptical tone is appropriate, nonetheless.

Not that a suitable tone would have availed the Defendant solicitor in Kelleher & Anor -v- O’Connor practicing as Don O’Connor & Company [2010] IEHC

Here, the Vendor’s reply to a request for evidence of registration as a restaurant was; “None available”. In fact the premises was registered. The solicitor’s failure to procure a correct reply was not a cause of the Plaintiffs’ difficulties, as the High Court found; it was in his failure to tell the Plaintiffs to make their own investigations of the premises and its suitability for use as a restaurant that he was failing.

For the legal profession, there is good news in this. It establishes that a solicitor should be paid, by a client, not for accepting instructions, but for giving advice.

Where the property market is flat, as now, the correct advice must be; wait.

Where did I leave my Invoice generator?

Homer nodded; the “press release” from Bill Prasifka was in fact the Financial Services Ombudsman’s Annual Report for 2009.

Bill took the job in 2010, so he’s looking back to the long lost past.

Surprisingly for him (he’s self confident and apparently not self satisfied) he made no remark about the following in the report:

“In two instances the compensation awarded is being paid over a period of time in instalments as the providers’ professional indemnity insurance would not pay up the amounts in question – €50,000 and €15,000 respectively. In two other instances where High Court appeals went in the Ombudsman’s favour the provider concerned stated that it may not be able to pay the €60,000 awarded as it had no funds. Where large awards had been made and are under appeal to the High Court – €500,000, €700,000 and €100,000 – the professional indemnity insurer of the providers has indicated that it will not be willing to pay up that award if the appeal is unsuccessful.”

Subject to clarification as to the reasons for refusal of indemnity (Bill seems to be implying that the insurers are refusing payment to HIM. Well, yes they would. Because we in Ireland do not have UK legislation to allow injured third parties claim benefits of a policy taken out by a wrongdoer.

Will Bill mention this to Mathew Elderfield and Professor Holohan? Will they write a letter to the Taoiseach seeking urgent legislation to remedy the situation? Will the Taoiseach act? Will he, feck!