One of Ireland’s newspapers reputedly aspires to be the Paper of Record. To be serious on the point it ought to have this vainglorious claim beneath its masthead; it does’nt, correctly.

It cannot be such, because of its necessarily accepted constraints. A true Paper of Record would explain. No Irish newspaper explains. They cannot, because to explain is to judge. To judge is, often, to defame. No average newspaper (in Britain or Ireland) can defame persistently and survive.

What the Paper of Record needs is a lexicon of terms which are inaccurately defined, like “cute hoor”. (Click HERE to read its inadequate definition).

Let us insist that it is flattering to say of the Pope, say, that he is a cute hoor. (He is not). We would be free then, with such a lexicon, to say what we think of our public servants; especially those who are Secretaries General of Government Departments, or those who, against reason, are trumpeted (often by themselves) as “independent” in filling some regulatory role or other.

This policy would have drawbacks; immigrants to Ireland would have to learn the conventional meaning of terms and then the real meaning. (It would be important to ensure they cannot sit on juries until they are fully inducted into Irish life. We have no problems with burkas; just meanings). (What would be the run of conversation between an Examiner and an immigrant qualifying for jury duty?).

The policy may have other drawbacks; what if the immigrants don’t know when to stop?

They might start referring to Mr. So-and-so as “a popular barrister in the Law Library”; or Judge So-and-so as “respected”. These terms have, in fact, meanings which are the reverse of their ostensible meaning.

Hmm.

The Paper of Record is written like this.

What is it really saying?

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!

This post could be entitled “water”. It is prompted by the proposal of Michael Phillips the Dublin City Engineer, that water be piped from the river Shannon to Dublin city.

I have not heard the reason why this “solution” is necessary. What, in fact, is the problem?

Let’s start with an Irish Times report seen HERE. We should also refer to a paper by Mr. Phillips himself, seen HERE.

The Irish Times report is of value; it has some figures in it about water in Dublin city and elsewhere, but one figure is missing (and missing from Mr. Phillips’ paper also); the maximum recoverable rainfall in the Dublin region.

Where is the full assessment of the problem?

The issue is not without its comedy; here is the Irish Times quoting Mr. Phillips;

“Dublin city engineer Michael Phillips said the implication of the report is that water would fall more copiously in places where it was not needed.”

Or, HERE is another media report, implying brain damage in the reporter; (sub-editors have that effect).

There can be only one (or two) reasons why Dublin city might source its water from the Shannon river; we do not have enough water in the Dublin region or the cost of collecting it exceeds the cost of the pipe from Dublin to the Shannon.

Mr. Phillips is not without his own resources; his full case can be seen HERE.
The difficulty with his view is his definition of “current water sources”. They are his treatment plants. In short, we do not suffer from a shortage of water; we suffer from a shortage of water treatment plants.

Of course we also suffer from inefficiently functioning distribution networks, as we see from the Irish Times report.

The Government solution to this crisis is the metering of water, a solution way below the level of “policy”

We are still left with a question.

Who makes water policy and why?

Bill Prasifka, the new Financial Services Ombudsman has started well, if we can properly understand recent newspaper reports. He seems to have issued some form of Press Release but it’s not on his website yet.

The reports credit him with underlining that he is limited in the amount of compensation he may award against the anonymous “regulated” financial services bodies (banks) he polices. (He does’nt really; he reacts to complaints).

Consequently, Bill awarded the maximum, €250,000, to a farming couple who lost much more than that.

The limit is set in regulation, as follows:

“The amount of 250,000 euro is prescribed by Council as the maximum amount of compensation payable in respect of all other complaints for the purposes of Section 57CI(5) and Section 57CI(4)(d) of the Central Bank Act 1942 (as amended by Section 16 of the Central Bank and Financial Services Authority Act of Ireland Act 2004).”

This is comedy. Bill is himself policed by a Council; they write the regulations. The Minister for Finance appoints them.

Who are they? I do not know, but we learned recently from the Irish Times HERE that stuff like this was actually being written by the banks.

See our earlier post on the Financial Services Ombudsman HERE at paragraphs 12 to 15

This blog has proposed a remedy for fraud of public funds in the past (see HERE for an instance).

We see a commendation in similar terms from Professor Donal Byard of New York in the Irish Times (HERE).

Now we need only await the usual sullen silence by way of response.

The musings by the Director of Public Prosecutions as reported HERE warrant a book written on them. He has pointed to the need for, and social value of whistleblowers.

This being a blog, a posting will have to suffice.

His musings were followed by a proposal from the Minister for Justice, the terms of which are currently obscure.

Assuming that there is no co-ordination between the Minister for Justice and the DPP, and assuming them to be decent, well-meaning office holders, why do these pronouncements appear as if the speaker was the first to address the problem?

The Labour Party tabled a Whistleblower’s Bill and it went nowhere. It was within the power of the Minister’s party to drive it, or to kill it. It was killed.

Transparency International has compiled a review of the lack of protection for whistleblowers in Ireland. See it HERE.

Transparency International recommend one single piece of legislation to protect (and promote) whistleblowing. As they point out, the UK did exactly that in 1998 with the Public Interest Disclosure Act. See it HERE
.
Of particular interest to this blog (we are personal injury lawyers, albeit multi-tasking) are the provisions of Section 27 of the Safety Health and Welfare at Work Act 2005. See it HERE.

Now read the obligations imposed on employees HERE by Section 13 (h) of the Safety Health and Safety at Work Act 2005.

The DPP thinks that recourse to the Employment Appeals Tribunal is cold comfort for a dismissed employee whistleblower.

Surely the Government knew this in 2005, if the DPP can know it now?

*This article was first published in the Irish Times on April 23rd 2010*

The Your Country, Your Call competition has a week to go before submissions close and the judges start to consider which of them will be awarded €100,000. The stated aim of the competition is far reaching and radical – nothing less than to “create prosperity and jobs at an entirely different level from what currently exists”, as Pádraig McKeon, Drury Communications managing director and Your Country steering group member, has said.

It has been supported by many of the pillars of the establishment. However, it is surprising given the scope of this ambition – and access to specialist knowledge – that there are still plenty of questions unanswered since the competition was launched.

Firstly, is the competition equitable to participants?

Under section 7.1 of the terms and conditions of the competition, every participant grants a “worldwide, perpetual, irrevocable, transferable, unencumbered, royalty-free, fully paid-up, non-exclusive licence” to An Smaoineamh Mór, the limited liability company running the competition.

For the winners, the consequences are total loss of ownership of their idea. Section 7.2 says that the winner (or winners) “shall irrevocably transfer, convey and assign to the promoter (or such party that the promoter may direct) all right, title and interest in and to the winning proposal and all intellectual property rights therein.”

After they pocket their €100,000, they lose all interest in an idea which will, by the organisers’ own description, “create prosperity and jobs” to an unprecedented degree. That’s a return on €100,000 of which any private venture capital company would be proud. We can imagine the winners might, as that prosperity grows in An Smaoineamh Mór Ltd’s bank account, come to feel rather like the creators of early comic book characters: cut out of the fortunes their imaginations summoned into being.

Secondly, where is all the money for this competition coming from and why?

At first glance this question seems to have been answered quite clearly. McKeon told the Value Ireland blog on March 6th: “A cash fund of just under €2 million has been accumulated via donations from 13 parties (companies and individuals) which has been lodged in the accounts of the company, An Smaoineamh Mór . . . the promoters formally presented the project to Government late last summer and asked for support in three ways – a contribution to the fund referred above; a request that the competition would have access if it needed it to the services of the State enterprise agencies in the evaluation process (if such help were required); and a commitment that Government would engage with the process of developing the two winning proposals, particularly with reference to any legislative issues that might need to be addressed. It agreed to all three requests – it will be contributing 15 per cent of the fund.”

But on March 23rd, in response to a parliamentary question from Ciarán Lynch who asked the then minister for enterprise Mary Coughlan whether she had “given or [had] undertaken to give public money” to the project, she told the Dáil: “My department is currently examining a proposal to provide funding of up to €300,000 to the Your Country, Your Call initiative from within existing resources. No funding has yet been paid by my department in respect of the initiative.” And she went on to say that “if funding is made available” she would want to ensure that it was accounted for properly.

Which is odd. Because it shows (a) the minister hadn’t made a decision to give An Smaoineamh Mór any money and (b) that the amount of money she was considering paying is any figure “up to” €300,000. It also raises questions as to what conditions may be placed on any funding. So, has An Smaoineamh Mór Ltd got €300,000 of public money in a bank account? Or not?

When I posed that question online, McKeon showed a new reticence compared to his earlier statement: “As to the status of the account today, we will not be publishing that detail during the competition.”

Actually, there are lots of “details” we don’t know about An Smaoineamh Mór’s accounts. We don’t know who those earlier-mentioned 13 parties (companies and individuals) are. A list of 87 names is provided on the Your Country, Your Call website as a non-exhaustive indicator of contributors, but not all have given money. We don’t know which of the named and unnamed contributors have provided money and if so, how much. We don’t know what the financial contributors’ relationship with the State is, though we do know from public records that two of the State-supported banks, AIB and Bank of Ireland, are in there somewhere. We don’t know, therefore, how much public money is in that €2 million “cash fund”.

That’s a lot of don’t knows. We’ve been promised since February that they would all be revealed “in the coming weeks”. Those weeks are still coming.

Finally, is the competition equitable to taxpayers? An Smaoineamh Mór Ltd is recognised as a charity by the Revenue Commissioners on the basis of its memorandum and articles of association. But those same documents allow for the company to establish for-profit subsidiary companies.

As already mentioned, it will own all the intellectual property in the winning entry or entries. It intends to establish a vaguely defined “something” to create jobs, and prosperity. But jobs and prosperity don’t occur in the abstract. They are the happy side effect of a highly profitable business.

Under what statutory power is the Minister considering funding a privately owned company (backed by undisclosed persons) with public money – completely outside the normal enterprise support institutions and structures – with the intended aim of developing a vastly profitable business or industry without any known provision for a return on that investment for the State?

And if there is such a power, how could it be in the public interest to use it?

Generally, we expect High court judges to intend to do justice on a persistent basis. (Despite the title of the Department of Justice, Equality and Law Reform, we expect less from the Department, it being a bureaucracy).
Nonetheless it appeared necessary to the Oireachatas to enjoin judges to do justice. We see this in Section 28 of the Civil Liability and Courts Act 2004.
(Of course the foregoing is a fiction. Our Executive has ensured that the Oireachatas does not function correctly; somebody other than the Oireachats decided the terms of the Act).
Section 28 reads:-

“28.—(1) In a personal injuries action (other than an action under section 48 of the Act of 1961), any income, profit or gain in respect of which—
(a) the plaintiff is making a claim, and
(b) (i) a return has not been made before the hearing of the action in accordance with the Taxes Consolidation Act 1997 , or
(ii) the plaintiff has not otherwise notified the Revenue Commissioners,
shall, for the purposes of assessing damages, be disregarded by the court, unless the court considers that in all the circumstances it would be unjust to disregard such income, profit or gain.”

This provision bristles with difficulties for a judge. Whatever the judge decides, an appeal court could and probably would take a different view. The Section implies that some people will get the compensation and some people will not. Why? We do not know, and not to know is wrong. The fact that a Defendant is insured must be a deciding factor, otherwise the decision to withhold compensation would result in tax foregone by fraud (or error?) being credited to an insurance company.
Is it possible that one or more insurance companies procured the insertion of this Section into the Act?

Yes it is. We see from the Irish Times that a committee of bankers’ representatives was designing legislation (for banks) as late as 2008.
Now we know how Government works.

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.

Under Section 15 (3) of the Valuation Act 2001 State property is not rateable. Consequently, there is no obligation to pay rates on such property.

The Section reads:

“Subject to section 16 , relevant property, being a building or part of a building, land or a waterway or a harbour directly occupied by the State (including any land or building occupied by any Department or office of State, the Defence Forces or the Garda Síochána or used as a prison or place of detention), shall not be rateable.”

We have not heard (it’s early days) what proportion of the property taken by NAMA from the banks is now occupied by NAMA.

We need answers to some questions:

Is NAMA “the State”?

What does “occupied” mean?

A lot of money hangs on those questions.