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”.

No! Do not call the judge “Boss”.

When you appear in the High Court or the Supreme Court do what the Minister for Justice has directed HERE.

Call the judge “Judge” (unless he/she is the Chief Justice (or the President of the High Court)).

(It took a very long time to get rid of “their Lordships”. Should we not now discontinue the use of the Irish harp as a symbol of the State? In Italy, the courts exercise power “In the Name of the People”. To corrupt that is more difficult than to hijack an abstract symbol like a harp.)

Litigation means a resort to the Courts for resolution of a problem. Wikipedia says the conduct of a lawsuit is litigation.

It also says:

“A lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant’s actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment will be given in the plaintiff’s favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.”

We could go on and on and on about the topic, but this is a blog and we should limit ourselves to the practical.

A typical lawsuit has its origins in a Road Traffic Accident. (“an RTA”). A typical RTA will involve two motor cars. The drivers may have bona fide differing opinions of the causes of the accident. One driver may have sustained more damage than the other. These circumstances may drive the lawsuit.

There are other circumstances that drive a lawsuit. Greed can drive it. Desperation can drive it. Lack of scruples (a sub-set of greed) can drive it. Ambition can drive it.

Most lawsuits are settled. The judicial system is under-resourced to adjudicate on every lawsuit filed in court.

The statistics in the Annual report of the Courts Service of Ireland do not properly reflect this. Take the figures for the High Court civil cases in 2008. There were 22,861 proceedings issued in that year. Allegedly the court made 25,734 orders and there were 4,631 settlements. These two latter figures are categorized as “Cases disposed of”.

In truth the figures for commencement of proceedings and cases disposed of are unrelated. This is so notwithstanding that most proceedings would still be in being one year after being issued. The Court Service statistics take no account of cases commenced and then discontinued. These cases, more often than not, have been settled.

The litigants, with the assistance of the legal profession, settle their cases. (At lunch-time outside the Law Library).

The implications of this, for litigants, is profound. It implies the process is a rational process (on the whole). It is rational in the way a game of chess is rational. The rules and principles are sufficiently clear and well known that the outcome can be predicted with greater or lesser certainty. It is the function of the judges to preserve the integrity of the rules and, exceptionally, expand on them.

Nevertheless, litigation is uncertain. That may mean it is uncertain to the extent of 10% or 50%. The burden of proof in civil law is on the balance of probabilities. To win, a litigant must persuade a judge that what is alleged by that litigant is, on balance, more likely than what is contended for by the opponent.

Failure to settle a case, or failure to settle until “the door of the court” may be caused by a failure to assess where the balance in the case lies, or it may be evidence of a deferment of settlement to the day of trial to maximize the compensation discount a defendant would like to get from an injured plaintiff.

Whatever the case, those causes are in principle, also assessable.

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.

Insurance has a strange aspect which we often overlook; we are happy that we did not need it.

We do not think that the premia paid year after year to insure our house is wasted money. After all, we do not want our house to burn down; we just want to rebuild and restore it if it does. So, we pay a small sum of money to meet the possibility of having to pay the much larger sum if the house does burn down (or suffer some other form of damage).

Sometimes the question of what is a proportionate sum to pay as a premium to cover the perceived risk has to be publicly determined.

In the UK, unlike Ireland, there is anxiety that justice should be facilitated. By “justice” is meant the ready and easy opportunity to go to court seeking a remedy without being prevented by extraneous causes, like poverty. Poverty is relative; most people in Ireland would consider the costs of a High Court action (or even a Circuit court action) beyond them.

Consequently, the UK authorities have facilitated schemes intended to achieve this end.

One such scheme is to allow lawyers who work on a “no win, no fee” basis to charge a significantly higher fee when they are successful, and provide that the losing party has to pay that higher fee as a matter of course.

Another is to recompense a plaintiff his or her insurance premium for “After The Event” (ATE) insurance. This is insurance taken out to, effectively, help pay for some of the litigation costs of the plaintiff/insured.

Section 29 of the UK Access to Justice Act 1999 provides:

“Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.”

Inevitably, the losing defendants (other insurance companies) took issue with the premia being charged for the ATE.

HERE ‘s the outcome of that dispute.

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.

Judge McMahon travelled to Lissadell to see the subject of the dispute between the owners and Sligo County Council about “public rights of way” on the estate.

From an evidential point of view this is equivalent to looking at the murder weapon in a criminal trial, or looking at a large machine which cannot be brought to court with convenience.

It is normal for the parties to the dispute to be given the opportunity to accompany the judge (or the jury, as the case may be) with legal advisors in the “viewing” by the finder of fact.

The reason for this is to ensure the adoption of fair procedures and to preclude the possibility of some novel (and irrelevant) element, unseen and unknown by, and to, the parties colouring the judge’s perception and opinion.

As this is written, the public perception of AIB and Bank of Ireland is that they are solvent. They may not be. If they are not, the Government, or part of it, knows it. The Government, although it is silent on the point, is in that case, in effect. perpetuating the illusion of the banks’ solvency. This split between what is officially the case and what is really the case is common. We have seen recently that, although they were not directly protected by the State, we slowly, and by chance, learned that Liam Carroll’s property interests were financially unsustainable with Paddy Kelly’s likewise, followed by Bernard McNamara’s. These truths, easily comprehended when brought to view, are part of the more obscure greater truth, that the crash of these property interests was facilitated by massive Government failures and that the possible insolvency of the banks was caused by the Government.

The recent apology from the British Government to the victims of the Thalidomide scandal reminds us of what is required when important issues are denied or ignored; quality journalists.

In the UK they had the Sunday Times “Insight” team under Harold Evans. As editor of the Sunday Times, Evans refused to knuckle under in the face of Distillers’ court injunction preventing the newspaper from publishing the truth (to the extent then known) about the cause and history of the dreadful birth defects that had appeared as a result of the use of the Thalidomide drug by women. (Distillers was the distributor of Thalidomide).

(Ironically, given the title to this post, a newspaper of the name “Sunday Times” continued to exist after Harold Evans left it, but it was not what it had been; Rupert Murdoch owned it then).

At the crucial time and on the central issue, openness, the UK courts came down emphatically on the side of Distillers and attempted to impose secrecy.

Here in Ireland, if there were to be a reprise of that struggle we can not be sure that the courts’ response might not be equally inadequate.

The reasons for this are twofold; access to public records is still regularly denied as a consistent Government policy, and, within the court system, access to paper and electronic records is a matter of chance and whim. The Government has not only set the policy of “closed” administration, it has written the legislation to make it legal to refuse access to public records.

There is an argument to be made that the broad statement in the blog post “Slip and Fall” acknowledging impunity for public authorities for non-feasance is wrong.

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.

It is an obligation of an advocate, in cross-examination, to convey to the witness the evidence the advocate intends to adduce to rebut the evidence of the witness. This is called “putting” the case to the witness. The witness will have the presumed opportunity to comment on the “case” of the advocate’s witnesses.

The potential penalty for failure by the advocate to do this is a prohibition by the court on the advocate adducing evidence contradictory of the witness’ evidence. In fact, the advocate will, in such circumstances, concede the failure and ask for leave to, belatedly, “put” the case to the witness or witnesses. This may not be convenient (it usually is not) and may be impossible. It will certainly cost money. The cost will be met by the advocate’s client. The court ensures this by permitting the witness to return, conditional on the advocate consenting to an order against his/her client on the costs.

There are often matters on which the advocate has no evidence to present in rebuttal. That does not preclude the advocate from seeking to challenge the witness on the point or points. However, the advocate is not permitted to leave the witness under the mistaken impression that the challenge is the “putting” of the advocate’s case. To avoid this, the advocate “suggests” to the witness that “…………….”. This formulation is a signal to the witness that the advocate is asking the witness to agree or disagree with the advocate and that the advocate is not going to call rebuttal evidence.