In the nature of things, accusations are leveled at opponents in court. These accusations vary in nature and import. The most serious are found in criminal proceedings. There, the State pursues the defendant with a view to punishing him/her, possibly with imprisonment. Few criminal proceedings do not imply a moral failure in addition to a breach of the law.

However, even civil proceedings following a road traffic accident will generate pleadings criticising the defendant. They, too, may imply a moral failure on the part of the defendant, or, just as pertinently, may be construed as doing so.

Construction may be everything; if the object of criticism thinks the criticism may lower him/her in the estimation of right-thinking members of the community he/she may sue for defamation. Absolute privilege is a defence to a defamation action and, under Section 17 (2) (i) of the Defamation Act 2009, attaches to reports published of proceedings before the Irish courts whether in the Republic or in Northern Ireland. The Section reads;

“…it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…… a fair and accurate report of proceedings publicly heard before, or decision made public by, any court-….”

To avail of this provision, the proceedings must have been held in public. This means that, for instance, the content of pleadings or an affidavit not opened in court will not be covered by the provision. (The writers of such pleadings or affidavits are protected, with absolute privilege, under Section 17 (2) (g) of the Defamation Act 2009).

The reporters of those pleadings or affidavits, if they are not made public in the court proceedings (i.e. not opened in court) are protected by qualified privilege under Section 18 of the Defamation Act 2009.

What if the judge, for instance, mutters “…I’ve read the affidavit…” and moves on? Has it been opened? Is it reportable?

That is a current issue in the UK.

HERE is the legal submission, in skeleton form, of the Guardian newspaper on the entitlement of the newspaper to have access to the papers upon which the [UK criminal] Courts are making or going to make their judgments.

See HERE for a statement relevant to this question in an Irish context.

So, before you can publish “a fair and accurate report” you must access the material. There is no right of access, under the Freedom of Information Acts, to Irish court records. In the High Court the records are under the control of the President of the High Court and in the Circuit Court under the control of the President of the Circuit Court.

Currently, in the High Court, civil pleadings are no longer filed in the Court. They are simply exchanged between the litigants and, later, a booklet of pleadings is delivered to the Court to facilitate the hearing of the action.

All of this is in considerable contrast to US courts. There, the general public has access to the court records. Indeed, they are often published on the internet by the court authorities. This is essential, for instance, in relation to a class action. There, the general public must be able to understand the issues to know whether to subscribe to the proceedings as an injured claimant.

When will Ireland catch up with the UK, not to speak of the US?

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.

There is quiet excitement in our household. Mr. KenMore has responded to the suggestion (HERE) that some easy legal reforms be introduced, with a silent determination to do exactly that. (OK, some less sophisticated persons deny this; they admit the silence but query the determination. I do not).

In such a spirit, can Judge Kelly’s remarks about the lack of a mechanism to recover excess tolls (if such they be) charged on the M1 motorway, fail to provoke the attentions of our benefactor Mr. KenMore?

Once again, the remedy for such social ills is to hand; introduce forms of proceedings in court called Multi-Party Actions. These are commonly called “class actions”. They permit a plaintiff to commence proceedings against a defendant, not just for his/her own benefit, but for the benefit of a class of persons, the plaintiff being just one.

This could be done relatively easily and quickly. The missing ingredient is, and was, political will. Nothing else is missing.

THE HIGH COURT
Record No: 840P/2005
BETWEEN:

SHELL E & P IRELAND LIMITED
Plaintiff
And
PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN
Defendants

And
THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL
Defendants to the counterclaim of second and fifth defendants
Update (17th March 2010)
1. On 18th and 19th November 2008, Judge Laffoy heard the application, on motion, of the State to determine as a preliminary issue whether the 2nd and 5th Defendants are precluded from raising “public law issues”.
2. McGarr Solicitors act for Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants. Their counsel are Lord Dan Brennan QC and Mark Dunne BL. The Chief State Solicitor acts for the Minister, Ireland and the AG. Their Counsel are James Connolly SC and Charles Meenan SC. Eugene F Collins act for SEPIL. Its counsel are Patrick Hanratty SC and Declan McGrath BL.
3. The court has decided (judgment delivered on 4th March 2010) that the 2nd and 5th defendants are NOT precluded from raising “public law issues”.
4. The proceedings commenced in April 2005, when Shell E & P Ireland Ltd. (”SEPIL”), issued plenary summons proceedings against the defendants. Mr. Philbin was committed to prison for 3 months, effectively, on the application of SEPIL on the grounds that he had breached an injunction restraining him from preventing SEPIL from entering his land.
5. In the events that have happened, SEPIL applied for and received the leave of the court to discontinue its claims against the defendants. This happened after SEPIL had received the defences of the defendants and the 2nd and 5th Defendants had counterclaimed against SEPIL and successfully joined the Minister and Ireland and the AG as further defendants to the counterclaim. SEPIL’s discontinuance did not end the counterclaim. The counterclaim is substantial. As against the Minister, Ireland and the AG it claims that certain Compulsory Acquisition Orders made by the Minister regarding the land of the defendants are invalid. It also claims that a consent allegedly made by the Minister in favour of SEPIL, to construct a pipeline over the defendants’ land is invalid.
6. The Minister, Ireland and the AG asserted that these are “public law issues”. They asserted that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They asserted that, that being so, those claims of the defendants are late. They asserted that the claims, to be admissible, should have been made within the time limits of 3 or 6 months (at most) after the making of the CAOs and the consent.
7. SEPIL supported the State parties in their submissions and position.
8. The defendants denied they are confined by the provisions of Order 84 and/or its “time limits”. They said that Order 84 is not an exclusive procedure; that it cannot be used to shut out the hearing of claims against the State where the State has wronged citizens, particularly with regard to the private property of the citizen. They said, consequently, that the counterclaim should proceed to a full hearing on its merits.
9. The matter has been adjourned for mention before Judge Laffoy to 18th March 2010.

I have referred previously to the difficulties sometimes encountered with insurance companies.

However, an insurer does not always have the advantage.

If an insurer, meeting a claim of wrongful refusal of indemnity (meaning, the insured person sues for breach of contract following the making of a rejected claim), pleads a simple denial, the court will invariably restrain the defendant insurer from making an affirmative case and the insurer will be confined to undermining the plaintiff’s case (if it is possible).

This means that the plaintiff cannot and should not be surprised, in the litigation, by the advancement of some theory explaining the mechanism of loss (justifying the refusal of indemnity cover). In other words, the defendant insurer is obliged to plead its specific case and reason for refusing cover and cannot take the plaintiff by surprise in the running of the case.

Furthermore, if the defendant insurer is claiming that the claim falls into an exception specified in the contract of insurance, it is for the insurer defendant to prove that fact and not for the plaintiff insured to disprove it.

Accidents from errors in manual handling are the commonest source of injury in Irish workplaces.

If such an injury happens it invokes, potentially at least, the assessment of the event from the perspective of the duties of employers regarding such events. Chapter 4 of the General Application Regulations 2007 (SI 299/2007) particularly apply.

Any injury may result for these errors, but back injury dominates.

An employer is obliged

a) to seek alternative methods to manual handling;
b) to keep any such alternatives in working order;
c) to train staff in the techniques of manual handling as required;
d) to up-date training where this appears necessary;
e) to ensure that staff do not lift weights heavier than those stipulated in the weights guidelines (Health and Safety Authority);
f) generally to assess the risk where manual handling is unavoidable

Below are whimsical examples of pleading in a personal injury claim. The pleadings are not in order and do not conform to current pleading requirements for personal injury actions. Nevertheless they reflect the strange world of conflict in a personal injury lawsuit.

2009 No. 123
The High Court

BETWEEN Joseph Brush Plaintiff

and

Plastic Surfaces Ltd. Defendant

STATEMENT OF CLAIM

Delivered the 1st Day of April 2009 by
Skin & Bone Solicitors for the plaintiff
of Victory House Broad Street Dublin 1

1. The Plaintiff is a housepainter and he resides at 54 Shady Lane Rathcormac Dublin 10.

2. At all material times hereto the plaintiff was employed as a painter at the defendant’ s plastic-coated fabrics factory at Leafy Hollow Rathcormac Dublin 10 which said premises is owned and managed by the defendant.

3. It was a term of the said contract of employment between the plaintiff and the defendant and/or it was the duty of the defendant to take all reasonable precautions for the safety of the plaintiff while he was engaged upon his work, not to expose him to a risk of damage or injury of which they knew or ought to have known, to provide and maintain safe and adequate and suitable plant, tackle and appliances to enable the plaintiff to carry out his work in safety, to take all reasonable measures to ensure that the place where he carried out his work was safe and to provide and maintain a safe and proper system of work.

4. On or about the 1st day of March 2009 the plaintiff was in the course of his aforesaid work, lifting a roll of plastic- coated fabric when he injured his back. In descending a set of steps immediately following his back injury the plaintiff slipped on the said steps and lost his footing and fell down several steps, knocking over and burning himself with the contents of an open jar of hydrochloric acid which was standing at the bottom of the said steps.

5. The plaintiff injured his back, fell and burned himself with hydrochloric acid as aforesaid owing to the negligence and breach of duty on the part of the aforesaid defendant its servants or agents, in or about the management, maintenance and supervision of the aforesaid premises and the prevention of grave risk to the plaintiff.

Particulars of Negligence and Breach of Duty (including Statutory Duty)

A. Failed to provide the plaintiff with safe or adequate mechanical lifting equipment or assistance in the performance of his task of lifting the roll of plastic-coated fabric as aforesaid.

B. Failed to instruct the plaintiff in respect of safe and adequate lifting arrangements for the lifting of heavy or awkward loads.

C. Required the plaintiff to perform the said lifting operation without assistance.

D. Failed to take appropriate or any steps to obviate the said back injury accident.

E. Failing to provide any or any adequate lighting on the said staircase when they knew or ought to have known that the presence of slippy plastic or other foreign material was a common hazard on the said staircase which could not be spotted by the person using the said staircase in the absence of adequate lighting thereon;

F. Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged on his aforesaid work;

G. Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known;

H. Failing to provide a safe and proper system of work;

I. Failing to provide any or any adequate supervision;

J. Exposing the plaintiff to unnecessary and avoidable risk;

K. Failing to warn the plaintiff of the dangers presented by slippy plastic and other foreign material on the said staircase when the lighting thereon was inadequate;

L. Failing to provide competent workmates;

M. Failing to provide a safe place of work.

N. Leaving a jar of dangerous and corrosive chemical open where it might be spilled and injure the plaintiff especially in his distressed state.

O. Failing to warn the plaintiff of the dangers presented by the jar of hydrochloric acid on the said staircase.

P. Requiring or permitting the plaintiff to lift and move a load which was heavy and likely to cause him injury in breach of Article 68 of the General Application Regulations 2007 (SI 299/2007).

6. As a result of the aforesaid matters the plaintiff suffered severe personal injury, other loss and damage.

Particulars of Personal Injury
The plaintiff experienced severe pain in his lower back on lifting the roll of fabric. He suffered further pain on falling down the staircase further injuring his back and his right foot. On striking the jar of hydrochloric acid the contents spilled out onto both of the legs of the plaintiff and pooled about him as he sat on the landing. It burned his hands, legs, feet and buttocks.
The plaintiff was taken to St. Cuthbert’s Hospital where he was examined on arrival. He was conscious but in considerable pain. He had two degree burns on his legs and feet with three degree burns on his hands and buttocks. His burns were dressed and he was then X-rayed for his back and leg complaints. Soft tissue injury of his back was diagnosed and he was prescribed bed rest and physiotherapy as soon as the acid burn injuries allowed. A fracture of the cuboid was first suspected based on the X-rays of the right leg. The plaintiff suffered severe pain from his back at this juncture and was prescribed pain killers. The plaintiff was suffering from pain in the lower back region, radiating down the right leg. He was found to have restriction of movement in the lumbar spine together with tenderness in the right lower and lumbar and buttock region. Straight leg raising was restricted.
The plaintiff’s above injuries caused and continue to cause severe pain and discomfort. His capacity to enjoy his work and life generally has been severely diminished by his injuries. His complaints continue, may be permanent and the onset of adverse sequalae cannot be ruled out.

Particulars of Special Damage

Hospital Bills (unascertained and continuing)
Doctors’ Bills (unascertained and continuing)
Chemists’ Bills (unascertained and continuing)
Travelling Expenses (unascertained and continuing)
Loss of Wages (unascertained and continuing)
Damage to Clothing (unascertained and continuing)

Michael Soap B.L.

To the Registrar
Central Office
Four Courts
Dublin 7

And:
Fat & Smooth
Solicitors for the Defendant
Corkscrew Lane
The Highway
Dublin 2

________________________________
2009 No. 123
The High Court

BETWEEN Joseph Brush Plaintiff

and

Plastic Surfaces Ltd. Defendant

DEFENCE

Delivered the 2nd Day of April 2009 by
Fat & Smooth Solicitors for the Defendant
Corkscrew Lane, The Highway Dublin 2

1. The defendant denies that the plaintiff was employed as a housepainter at their premises in Leafy Lane Rathcormac Dublin 10 as is alleged or at all.

2. The defendant denies that the plaintiff was lifting a roll of plastic-coated fabric as is alleged or at all.

3. The defendant denies that the plaintiff fell on descending the staircase as is alleged or at all.

4. The defendant denies that the plaintiff struck a jar of hydrochloric acid on the staircase or that same spilled on him as is alleged or at all.

5. The defendant denies that the plaintiff was caused to suffer, or did suffer, the onset of severe back pain as is alleged or at all.

6. The defendant denies that the plaintiff was caused to suffer an injury to his right leg as is alleged or at all.

7. The defendant denies that the plaintiff was caused to suffer burns to his legs, feet, hands and buttocks as is alleged or at all.

8. The defendant denies that the plaintiff suffered severe personal injuries, loss or damage as is alleged or at all.

9. If the plaintiff did suffer personal injury, loss or damage (which is denied) the defendant denies that the same was caused by the negligence or breach of duty of this defendant, it’s servants or agents, as is alleged or at all.

10. If the plaintiff did suffer personal injuries, loss or damage (which is denied) then the defendant says that the same was suffered or alternatively contributed to by the negligence of the plaintiff.

Joe Sunlight B.L.

To the Registrar
Central Office
Four Courts
Dublin 7

And:
Skin & Bone
Solicitors for the Plaintiff
Victory House
Broad St.
Dublin 1

Litigation is a contest and the contest is conducted according to rules. The express purpose of the contest is to do justice between the parties; therefore a rule which hinders that purpose must be dispensed with. It is the job of the judiciary to ensure that the rules achieve the purpose and not simply to ensure compliance with rules.

Unfortunately, in Ireland, one, at least, of the Rules of the Superior Courts hinders the doing of justice. That rule currently governs the making of “discovery” in proceedings. The rule is set out in Statutory Instrument 233 of 1999, and is the subject of a previous post in this blog HERE.

Discovery involves the obligation of a party to set out in affidavit what documents that party has, or had, in its power, possession or procurement, relevant to the issues in the action. Relevant documents are documents which help the case of the opponent or, alternatively, the party making the discovery. So, a document may be relevant in one or two ways; it may prove what is asserted by one party or disprove what is asserted by one party (or do both).

When the affidavit of discovery is sworn and delivered, the recipient may request inspection of the documents and seek copies.

Normally, discovery is not ordered (if it is ordered), until the pleadings have been exchanged. The pleadings will have formally defined the issues in the action. This is important; the lawyers for the parties have no difficulty, usually, in perceiving the issues in the case after the pleadings are closed. Before the pleadings are exchanged, only speculation might show what the issues are and speculation is not a good basis for making judgments as to the relevance of documents, say.

Each party is very familiar, usually, with the documents it has, or had, in its power, possession or procurement. Conversely, the parties are far from familiar with the documents the opponent has or had in its power, possession or procurement.

Before 1999, when a court ordered the making of discovery, it was relatively easy for the party, ordered to make discovery, to decide what documents should be discovered. By that stage the pleadings had been exchanged; the issues were defined and the documents were familiar to the party.

Since 1999, the burden of deciding what documents should be discovered has now shifted to the opponent, to the person seeking the discovery. The problem is, that party is unfamiliar with the documents its opponent has, or had, in its power, possession or procurement. The makers of the rule in Statutory Instrument 233 of 1999 elided this difficulty, by equating an assumed knowledge of classes of documents with knowledge of the documents themselves. The party seeking discovery must specify the documents it wants discovered by reference to classes of documents, and justify this request by relating the class to the issues in the action.

The consequence of this is a mess. “Classes of documents” is an abstraction. It is next to impossible, in most cases, to justify a request for discovery by reference to some general description of documents. More importantly, it conceals another departure from the previous practice and procedure on discovery; relevance as a standard has been abandoned.

The new standard is knowledge or lucky guesswork.

Knowledge of the opponent’s documents is rare and nothing is then left but guesswork. Consequently, requests for discovery are easily dismissed and denigrated for what they are – guesswork.

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.”

Something new HERE and further evidence of deficiency in my legal education.

However, I look forward to the case where I inform a court that my client will so plead.

Ireland has nominal provision for multi-party litigation. Order 15, rule 9 of the Rules of the Superior Courts states:

9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court to defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested.

This has been interpreted restrictively and is little used.

Generally, as an alternative, “test cases” are pursued, one case being chosen to determine the issue of liability and thereafter cases are fought on the issue of quantum of compensation.

There is, in Ireland, a notion that it is the function of the Courts to avoid a “breach of the floodgates�?, an idea at considerable odds with the doctrine of the separation of powers.

Nevertheless, the Irish Law Reform Commission published, in 2005, a report on the subject recommending the introduction of Rules permitting the commencement of class actions and regulating their conduct.

There can be problems with class actions but in a small jurisdiction like Ireland these could be minimised.