In January 2010 in Case C-456/08 the European Court of Justice found that Order 84A of the Rules of the Superior Courts was not in accordance with Article 1(1) of Directive 89/665.

The Commission had taken proceedings against Ireland over a failure by the National Roads Authority and the terms of Order 84A of the RSC.

Ireland lost on both points. The ECJ condemned Order 84A on the grounds it;

“..gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods for bringing an action are to be determined..”

The ECJ judgment recites a plea by Ireland that:-

“.. to date, no Irish court has dismissed, as being out of time, any action challenging a decision of a contracting authority made in the course of a public contract award procedure which was brought within the three-month limitation period but not at the earliest opportunity”.

Factually, this seems wrong, or economical with the facts.

In Danninger v Bus Atha Cliath and Deepdrill Developments Ltd. [2007] IEHC, the court recited the following:-

“Leave was sought to commence judicial review proceedings on 23rd May, 2006, approximately six weeks after the formal notification of the of the award of the contract to the notice party.”

- and then ruled on a plea that the Applicant was late, in these terms:-

“I would not hold that time began to run as and from the 3rd January, 2006, when the tender documents were received, because I would regard it as reasonable that legal advice might be obtained in relation thereto. One month seems to me to be more than adequate time in which to seek such advice. Given that there is both an opportunity and, pursuant to O. 84A an obligation, to bring proceedings “at the earliest opportunity”, I would hold that an interim application should have been made shortly thereafter. That interim application would have challenged clause 4.14 of the tender conditions and should have sought interlocutory relief.”

In Danninger the applicant applied for Judicial Review six weeks after losing the tender application process. That was within the three months time limit for applications. The court ruled that time commenced against the applicant not from the ending of the tender process but from the time the applicant knew, or ought to have known, of the grounds upon which it ultimately made its application.

That was a date (as found, by estimate, by the court) to be 3rd February 2006.

That meant that time expired on 3rd May 2006. Thus, 23rd May 2006 the date of the application to court, was twenty days too late. The court however, did not rule that the time had expired for that reason; it ruled it had expired on 3rd February 2006 because the applicant had not applied “at the earliest opportunity”.

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

See the most recent post on the issue HERE

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted.

Currently, DRI has furnished its expanded draft of the terms of the Reference to be sent to the ECJ. The State, through its Counsel, has agreed to revert to DRI by 17th August 2010 with its responses, if any.

The case will be re-listed before the Court in October.

1. NAMA was set up by the Government expressly for the purposes of paying the “long-term economic value” for bank assets.

2. “Long-term economic value” (“LTEV”) was a notion supplied to the Government by the Commission of the European Union. This writer cannot say from where the Commission derived it, but it is possible the Commission is not “wedded” to the notion, unlike the Irish Government.

3. In the context of the establishment of NAMA, it was insinuated that LTEV was, and is, in excess of current market value. Strictly, nobody can say what current market value of bank assets are; there has been no functioning market for them for some time and the Government has imposed a secrecy blanket on possible sources of information on the point.

4. Nonetheless, some assets have been assigned current market value; this happened in Irish High Court proceedings. Those values showed a 70%- 80% fall in the value of property-based bank assets.

5. The tranfer of bank assets to NAMA, therefore, was expressly in defiance of the actual value of those assets. The price to be paid was a political decision made before NAMA was established.

6. It is a lie, consequently, to say that the banks misled NAMA. It is the people of Ireland who have been misled.

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted. Clearly, the High Court is not convinced that the form of question suggested by DRI is exactly right (or is seeking the assent of the State to DRI’s form of question). The hearing next Wednesday will show us which is the case.

DRI’s case is brought in its own name, but it is an action with implications for every citizen of Ireland, whether they know it or not.

For this reason McGarr Solicitors have published DRI’s pleadings on the Web since 2006. This is reasonable; the Respondents are, in effect and name, the State. The issues are public law issues and there can be no prevailing claim to privacy on those issues from these Respondents. It is worth noting that it is not common, to put it at its lowest, to see pleadings of current proceedings published but there is usually an exception to every rule and we have one here.

Between now and next Wednesday we will re-formulate the questions to go to the ECJ. These questions will form part of the Order of the Court making the reference to the ECJ. We currently estimate a two year wait to get a hearing in the ECJ. Delay is inevitable; every Member State of the EU has a right to intervene and be heard in the matter. That implies that every Member State must receive a copy of the Questions and the parties’ submissions.

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 (5/5/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government.

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. On 5th May 2010 the High Court delivered its (unapproved) judgment. The Court confirmed its agreement to refer the EU law issue in the case to the European Court of Justice. The Court refused the State’s applications seeking denial of locus standi to the Plaintiff and/or seeking security for costs.

5. The matter will be listed before the Court again on 12th May 2010 for submissions on the form of question or questions to be referred to the ECJ.

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.

It is difficult to know where to begin to decry what is happening in the Commission of the European Union. I am referring to the review of the National Asset Management Agency (“NAMA”) by the Commission. A good point of departure is that we do not know what is happening there. The Commission makes no (perceptible) effort to tell us and our Government likewise tells us nothing [useful].

The missing information is of economics [and consequent policies] following the disastrous property bubble here in Ireland. That bubble has caused havoc with the economy; it has driven unemployment upwards; it has destroyed pension plans; it has blighted the work prospects or careers of many young people.

Let’s start with something most people did not know; at least two of Ireland’s banks were and are too big to fail. That innocent phrase implies that we the citizens are to those banks as one conjoined twin is to another. We risk death if the bank expires, it is implied.

If true, how did we permit such a relationship with a private institution?

Leave all that aside. What should we do to “save” the banks?

The Government’s plan is NAMA. That plan is flawed. It has been changed more than once. We know that it has been mis-sold to the citizens of Ireland by the Government; it claimed the purpose of NAMA was to facilitate lending by the Banks to businesses. That is not true and never was, to the knowledge of the Government.

Now the plan is under consideration by the EU Commission. Specifically it is being considered by Joaquin Almunia the new Commissioner for Competition. He is in fact not all that new; he used to be Commissioner for Economics and Monetary policy. The bad news is, he is not good at his job. He failed to spot the Greek crisis that has hit the EU with the force of a runaway train; it was his job to see that problem. Instead he was in Dublin, cheerleading for the Government where he publicly endorsed NAMA. We learned his communication skills tend to emulation of an Electromagnetic Pulse.

Of course, no skills are needed if the EU “review” is just for the “optics” of the process. The heart of NAMA dictates that the citizens of Ireland will pay [consciously] way over the odds for the “impaired assets” of the banks. The pseudo words of justification for this are, “long–term economic value”. There is no such thing.

It’s voodoo economics.

Hints have been given by the Government as to the high price they intend to saddle the citizens of Ireland with. If the hints are correct, we are about to agree to pay €54 billion for these “assets”. We know for sure that this is not the value of these assets. What is the value of the assets? We must look to the cases coming before the Commercial Court. On 19th February 2010, in one case alone the asset had fallen in value from €31 million to €600,000 in a period of just over 3 years. The judge remarked that in his opinion, assets had fallen by 70% to 80% in value. He had previously guessed a fall of 50%. In short, the values are still falling. Let’s take the price of €54 billion; assume that is the book value of these bank assets. A fall of 80% would mean they are worth [now] €10.8 billion. If the case of 19th February 2010 represents the full general fall in value, the €54 billion is worth “just” €1.08 billion.

One sometimes thinks that the true home and centre of he European Union is on the heights above Prague and its poet is Franz Kafka, but a better perspective is to realize that some human capacities are not as general as might be thought. Why do we think that Mr. Almunia must be capable? What if the genius of Keynes is like visuospatial ability? People without the capacity do not know of what they are bereft, and those with the capacity cannot conceive of a person who lacks it.

Wake up Joaquin Almunia!

We learn from the Sunday Business Post that NAMA may pay less than it previously indicated for the Irish Banks’ loans to be handed over to it (starting this very month, reputedly). We do not know anything further about this. We do not know if the report is accurate. We do not know if the report is a malicious falsehood leaked to the SBP to mislead critics of NAMA.

NAMA is a scandal. It is a scheme to transfer taxpayers’ money to private institutions without a rational justification. The irrational justification (“long-term economic value”) was mooted by the EU Commission, but it hedged it about with many conditions. We have no idea if the Irish Government and the Irish Banks have complied with those conditions. The EU did not mandate secrecy like this.

That the SBP can publish its, presumably, bona fide report and miss the real story; that its sources are unreliable and clearly manipulative of public opinion; that NAMA clearly thinks it is acceptable in this polity to behave in such a fashion and is to be condemned for it (rather than facilitated) and that covert administration is Wednesbury irrationality and a basis for Judicial Review of NAMA is a howler of a journalistic error.

There seems to be no end to the debt of gratitude the Irish (and now, the English) legal profession owe to the managing director of Ryanair.

He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by this writer for such use).

He, (we are now back talking about the managing director; (see what happens when you eschew words like “aforesaid”)) has promoted (indirectly) the use of interrogatories in Irish practice and procedure.

He has generated legal work for members of the profession (with more to come in England).

These are not insignificant benefits. Why is the Chairman of the Bar Council silent in the presence of such merit?

The words:

Disputes arising from the use of this website and the interpretation of these Terms of Use of the McGarr Solicitors website are governed by Irish Law. All disputes relating to these Term of Use and the use of the McGarr Solicitors Website are subject to the exclusive jurisdiction of the courts of Ireland.”

A blog is just a blog and is rarely definitive. I missed two elements of the post relating to the contamination of Irish pork products.

A. Irish farmers sell their pigs to factory processors; it is from the processor that the supermarket/retailer gets supplies. (So too, will a secondary processor such as a sausage maker). So, the retailers will have a claim against the processors; the processors will have claims against the farmers.

B. My post assumed delivery of the oil at its source. If delivery is at and to the Irish pig feed manufacturer in Ireland, Council Regulation 44/2001 will apply. Jurisdiction in those circumstances will be Ireland, not the place of the location of the supplier of the oil.

Details of the indemnity to the factory processors, by the Irish Government, are not to hand. Accounts suggest it is not a full indemnity. If so, the processors will be able to properly claim the balance from the farmers, who will in turn be able to make a claim against the pig feed supplier.

A sensible arrangement for the Government indemnity would have made provision for Ireland to be entitled to receive a proper portion of compensation recovered from farmers and/or the pig feed supplier.

A matter of great interest is the level of insurance cover of the farmers and the pig feed supplier. As always, the practicality of litigation is important.

Yet again we see the urgent necessity of legislation in Ireland to provide for Third Party rights under insurance and other contracts.

In the UK they have had that for 70 years and do not appear to have had any problems. What’s keeping us, (besides ineptness)?