In 1775 the East India company sent out Lord Pigot with instructions to restore the Rajah of Tanjore to his Madras territories. These had been annexed in 1773 by the Nawob of the Carnatic. In fact the Nawob was a puppet; the employees of the East India company were the real powers in Madras and Bengal. One of the principal persons in this regard was Paul Benfield (1740-1810). Benfield was nominally answerable to the Court of Directors of the East India company: in reality he was more powerful than his employers. The unlucky Lord Pigot was thrown into a dungeon by company troops (by order of Benfield) where he died in 1775. Benfield amassed one of the largest fortunes ever brought home from India. He was recalled in 1781 as a result of the Pigot scandal and successfully petitioned to return to his position in India. The vote in his favour in the Court of Proprietors of the East India company was 368 to 302. Edmund Burke had purchased a shareholding in the East India company in order to block Benfield’s reinstatement. One of his “Heads of Objections” read;
“That the immense Magnitude of the Sums alleged by him to be due to the said Paul Benfield, furnishes a just Cause to doubt, whether the Money (if really advanced as pretended) could be acquired by lawful means, considering Mr. Benfield’s Rank in the Service, the nature of his Trade, and the time of his residence in India.” Paul Benfield was a man of the world. The shareholders of the East India company were also beneficiaries of the extortion and theft practised in India and if appearances could be maintained, they would not and did not change the status quo.

It would be wrong to say that the Irish legal profession (barristers) are interested in ideas. (Solicitors would never have it said of them at all). This is not to say that they, some of them, are not interested in some ideas. The idea of “justice” springs to mind as an example. But that is the very point of failure of those others not so interested. “Idea” is defined succinctly in my “Fontana Dictionary of Modern Thought” (2nd Ed.) as “The smallest unit of thought or meaning, the elementary constituent of beliefs or assertions”. This post will assume “justice” is an “idea”.

For cultural reasons, in Ireland justice is what a system of law is reputedly about, if we understand “justice” to be law as integrity.

We would not expect to find (we could be surprised) many defenders, in Ireland, of Judge Posner’s point of view.

But it is difficult not to feel that the current Irish practice on civil discovery is expressive, somehow, of an idea proper to Judge Posner, that is, an overemphasis on the economics of litigation (a selective overemphasis, it should be said, where actual judicial practice is replete with references back down to inferior courts following reversal of the original judgment).

The reputed inspiration for the current Irish practice on discovery (the rules for which practice are found in Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) was Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. in which a judge suggested the introduction of changes to the Rules of the Superior Courts in relation to discovery.

The new rules introduced an obligation, in seeking discovery to write to the opponent requesting voluntary discovery; the letter must specify the precise categories of documents required to be discovered and give reasons why those categories should be discovered.

In default of agreement, the applicant must apply to the court for an order for discovery on affidavit and aver, in the affidavit, the belief of the deponent of the necessity for the discovery, as previously set out in the letter to the opponent, and assert, on oath, the validity of the reasons for discovery of the stipulated categories.

Prior to the introduction of Statutory Instrument No. 233 of 1999, the lawyers for a litigant, required to swear an affidavit of discovery, encountered a mild dilemma; they could not impose on the opponent their client’s view of the issues in the litigation and the relevance or otherwise of any particular document to those issues. They had to adopt a broad view of relevance; it had to extend to a view which the opponent might take or hold. The deponent had to depose to such documents as were arguably relevant even if those documents damaged the case of the deponent (of course, if the document damaged the deponent’s case, it was relevant.)

Currently, it is the applicant who must establish relevance and necessity. Significantly, that burden must be discharged without the benefit of knowing what documents the opponent has let alone having inspected the opponent’s documents.

The result is to launch the applicant into an abstract exercise where he/she claims relevance and necessity without being in a position to actually prove what is averred. The best that can be hoped for is to point to some category of document, the relevance of which to the issues in the litigation, accords with the prior view of the judicial authority charged with deciding the application.

This process of voluntary request followed by application to court can be time consuming. It certainly delays the trial of the matter, but not by much more than the preceding process of discovery.

The process has one purpose; to limit the access of the applicant to the documents in the possession of the opponent.

As an idea it has severe limitations if the overriding objective of litigation is to do justice. Indeed, it is diametrically in opposition to the “justice” objective, if justice is law as integrity and not some lesser good.

Of course it is true that many documents are discovered in litigation, the need for which was dubious, but that is hardly an argument for limiting every litigant to a regime as conceived and embodied in Statutory Instrument No. 233 of 1999.

Put another way, the circumstances provoking the judge in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. amounted to an attempt to make a principle of what was only “anecdotal evidence”.

That some members of the Irish High Court currently make orders for the provision of, effectively, “general discovery” is superior anecdotal evidence to the rumination delivered in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. They prefer to do justice than to respect a dubious proposition simply because it is in a statutory instrument.

Eoin O’Dell asks a valid question. What is a website for?

His context shows he feels the institutions he looks at failed to achieve what was there to be done; to demonstrate (I think he says) their raison d’etre in the particular instance that presented itself to them.

He (properly) chides them for “missing a trick�?.

We have immediate and available demonstrations of what a website is for as seen HERE.

On the internet, doing is demonstrating!

A website has the same purpose as a book or a magazine. Like them, a website is not an innocent production; we must read it with the possible presence of an unreliable narrator in mind.

Subject to that caveat we get, for instance, information about the planned Guantanamo trials HERE and HERE the like of which would never come out other than in a history book years after the event.

Quotes (about the forthcoming trials) like the following have an immediacy no other medium can produce:

According to Col. Morris Davis, who is a former chief prosecutor of the military commissions, it appears that the plan was made ahead of time to have no acquittals, no matter what the evidence was to reveal. General counsel William Haynes is quoted as saying (according to Col. Davis) “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? … We’ve got to have convictions.”

The Personal Injuries Assessment Board (PIAB) was inefficient, the Minister for Enterprise Trade and Employment has implied.

Of course he may have been guilty of a solecism when he declared the purpose of his new Act, amending the Personal Injuries Assessment Board Act 2003, was to ensure the efficiency of PIAB.

He probably meant he wanted to ensure its effectiveness. To do this he has placed a further trip wire in the path of injured persons seeking compensation for their personal injuries.

Now, if an injured person declines to accept the judgment of PIAB as to the correct and fair value to be placed on the personal injury and, instead, seeks to have that assessment made in open court following a trial, the Minister has provided that s/he will not be awarded legal costs against the unsuccessful defendant if the court award is less than the PIAB assessment.

What are the problems (statutorily enforced) that the Government has imposed on such plaintiffs?

1. Persons injured (bodily or mentally) by the wrongful action or inaction of another have been deprived of their constitutional right to apply to the courts to adjudicate on their entitlements to compensation for such injury without first submitting their claim to PIAB for an assessment by it.

2. Those persons must bear the cost (to them) of such submission and assessment.

3. Such injured persons now have just two years to commence legal proceedings against the wrongdoer who caused the injury. The claim will be statute barred on the expiry of this time. Previously it was three years, itself a tight deadline.

4. If a letter of claim is not written to the proposed defendant (the wrongdoer causing the personal injury) within two months of the incident causing the injury, the court may be asked (by the wrongdoer; who else?) to deprive the injured person of some or all of his/her accrued legal costs. (The general rule, still extant for property developers, banks, insurance companies etc., is that “costs follow the cause�? – the loser pays). In short, having been found guilty of the cited wrongdoing, the defendant will ask the assistance of the court to avoid paying some or all of the costs incurred by the plaintiff in bringing the claim.

5. A personal injury plaintiff must swear an affidavit verifying the truth of the facts of the personal injury summons issued by the plaintiff.

6. The plaintiff is now obliged to express his/her claim by the issue of a personal injury summons. The form of this dictates that the fullest details of the claim must be pleaded (and therefore be ascertained and known) within the two year limitation period.

7. If the plaintiff, although successful in the litigation, does not receive an award of damages in excess of that assessed by PIAB the effect will be as if the defendant had made a lodgement of that sum and the defendant will be entitled to ask the court to refuse an award of costs in favour of the plaintiff.

It is a bad time for the Rule of Law.

First, President Katsav avoids his trial for rape and his accusers are denied the protection of the courts and the criminal law.

Now George W. Bush commutes the jail sentence of “Scooter�? Libby.

In a sense, these events are refreshing in their brazenness,

It seems scarcely necessary to ask for the explanations for these actions. They are undoubtedly the deployment of political power masquerading as part of a judicial process.

In the case of George W., it appears he was complicit in the original illegal leaking of information on Valerie Plame.

In these circumstances “reasons of State�? is an inadequate description of his actions. He is an accomplice of Scooter Libby. His current action is one of perversion of the course of justice and aggravates his original offence.

At the moment, by way of light relief, better try to think of ways of preventing the people of China hearing of this Presidential initiative. It doesn’t sit well with an earlier initiative.

President Katsav of Israel has the benefit of a good deal. Following complaints of rape and sexual harassment (by and of women) and investigation of those complaints the Attorney General of Israel has made the deal with him.

Under the deal he will plead guilty to minor sexual offences and will not be tried for rape. He will resign two weeks ahead of the expiry of his term of office.

The complainants do not appear to have agreed to the deal. The first complainant, “Ms A�?, stated:

It [the deal]

gave sex offenders license and legitimacy to do anything they want with impunity.

The Attorney General gave as his reason

it was important to spare Israel the sight of a president on trial.

There could be no better example of an act taken for “Raisons d’Etat�?, and of course what happened was not a judicial process being a classic insider fix and a denial of the Rule of Law.

It should always be remembered, the State is an abstraction and the women are real. To prefer an abstraction over a person is to promote crime.

The interests of the State, but more importantly, the people, require that the deal not stand.

The facts are known and admitted. Frank Shortt, now aged 72, an accountant by profession and the owner of a nightclub in County Donegal, was framed by senior police officers on charges of facilitating drug dealing in his nightclub, for which he was convicted and sent to jail for 27 months in 1995. See HERE for a journalist’s account of the affair and its consequences.

Mr. Shortt appealed his conviction but the conviction was affirmed by the Court of Criminal Appeal (a fine element of IR£10,000 was remitted). Ultimately, due to events elsewhere, Mr. Shortt’s new lawyers gained access to evidence by which he could prove he was innocent and again appealed to the Court of Criminal Appeal where the State did not contest the appeal, See HERE for the fall-out.

In the events that happened, Mr. Shortt applied, as was his right and entitlement, to the High Court for compensation under statute for the miscarriage of justice of which he was the victim. He was awarded €1.9 million. See HERE for the judgement and HERE for evidence of his reaction.

Meanwhile his family, including his wife settled their claim for compensation against the police force and Ireland for the suffering they experienced as a result of the wrong done to Mr. Shortt. See HERE for a report. Significantly, the damages were expressly paid without any admission of legal liability by or on behalf of the police or Ireland.

He appealed to the Supreme Court. See HERE for the judgements and HERE and HERE for the outcome and HERE for a comment.

The police officers are at large. They have not been arrested, although they are no longer in the police. The most senior of them was permitted to retire and is currently in receipt of his pension.

The Supreme Court remarked caustically on the absence of any real apology from the State and particularly the police force. Now one has emerged; see HERE.

The State

The Supreme Court referred to the wrong done to Frank Shortt by the State. In fact the wrongs done to Frank Shortt were done by persons. No State can act other than by persons. Like commercial corporate bodies, a State is an abstraction, a myth.

For misplaced, but deeply human, conceptual reasons abstractions tend not to be judged by the same standards as persons. By a process of association, the agents of such abstractions often get the benefit of the privileged standards applied to their principals, the abstractions.

If the Irish State were to be undermined or destroyed, we could replace it. The State is not the fundamental element of social life; the community is.

Within the community there are differing and contending forces seeking, often, their own interests. In a democracy there is a concession from its members not to have resort to force to protect the interests being assailed by the opponents. Despite this, or because of it, on the part of the opponents there is a perennial drive and effort to co-opt the State, the highest secular abstraction, to the purpose of copper fastening the benefits of any such assault. This is, in effect, an assault on the State. The abstraction will be undermined if it is bent to that purpose.

On this view, it is not the State that is to be castigated when its mechanisms are abused; it is the individual members of society seeking to, or facilitating, such abuse.

Furthermore it is not possible to hold the State to account. We see this in Frank Shortt’s case; the compensation he is to get will be paid by the taxpayer. The taxpayer is not the State.

The real work in the Frank Shortt case is left undone; it is essential to, at a minimum, pass judgment on the persons who perpetrated the wrong done to Frank Shortt and any persons who became accomplices after the fact. To date, private persons, Frank Shortt and his lawyers, have done all the work. That should now be taken up and concluded by the Government.