Since 2004 the limitation period within which an injured person must issue personal injury proceedings, before being barred from bringing such a claim, is two years.

Because such a person is [generally] obliged to apply to the Injuries Board for an assessment of the value of the person’s claim before proceedings may be issued, time is suspended from running under the limitation period while the Injuries Board is considering the application (and, possibly, corresponding with the guilty respondent or his/her insurance company). Not only does time not run during that period, it does not commence running again for six months after the Injuries board issues its authorisation to the injured applicant to issue legal proceedings.

There is an exception to this regime; if the guilty respondent dies at some point the injured applicant has two years to issue legal proceedings from the date of the death of the guilty respondent. This time period, it appears, does not cease to run because the applicant has lodged an application to the Injuries Board.

It is very possible for an injured applicant to know nothing of the personal circumstances of a guilty respondent. Even the Injuries Board may know nothing of those circumstances; the Board will carry on correspondence with a lawyer or an insurance company acting for the respondent (who, in their turn, may also not know of the state of health of the respondent).

The Injuries Board claims to process applications, on average, within approximately seven months of an application. Depending on the facts of the case this may not be fast enough.

The risk of loss in these circumstances lies with the injured applicant, not with the Injuries Board.

Like all institutions, it is insulated from the effects of death.

This writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

The title is an acronym for Fact Based Medicine. (Can there be any other kind?)

We hope our doctors are thoughtful, attentive and kind, but we also expect them to be competent, ie, rational. That’s why we expect them to seek the facts. Before you seek the facts you need to know what facts you are seeking. That applies to the legal industry as much as to the medical profession.

The practice of law is much more a collective effort than medicine is. It cleaves more to convention than medicine does, say.

This writer was in High Court 2 in the Round Hall of the Four Courts a few days ago. The Personal Injuries list was called over. It was a very long list. It featured those personal injuries actions which had now reached their hearing date and in which the parties had arrived in court for trial. But they did not get their trial, most of them. They were, metaphorically, in a traffic jam. Cases were still in the list and being called over that had first appeared a week before; that meant the parties and their witnesses (potentially, if not actually) had been returning again and again to the Four Courts seeking a trial and had been failed again and again. Each succeeding day brought a new cohort of cases into the list. They too, failed to get a hearing and would have to come back the next day, and the next day and so on.

The judge struggled to express what everybody was feeling; that it was time to consider abandoning ship, metaphorically, and cancel the list. But he would not do it, unless the Counsel asked him. He then resiled from this, to laughter, saying it was not a matter where they had a vote.

But of course, they do and should. The courts system would not function without the lawyers. However, the forensic traffic jam was a symptom of another problem; a cumulative failure to settle the cases.

Taking a benign view of politics, this is the kind of problem that prompts Ministers for Justice to commission a Report from the likes of The Committee on Court Practice and Procedure. See the PDF of the Committee’s 29^th Report (dated 2004) HERE- [DOC] CCPP 29th Report - Courts Service

In that Report the Committee remarked;

“At present a very small proportion of personal injuries cases go to trial. However, litigants have the right of access to the courts and the process available should be the dispensing of justice in a speedy, efficient and effective manner.”

And again;

“It… [personal injuries litigation]… is a small proportion of the High Court work. High Court judges are required to hear cases in lists on Personal Injuries, Bail, Bankruptcy, Chancery, Commercial, Common Law Motions Circuit Court Appeals, Family Law, Garda Compensation, Judicial Review, Probate, Proceeds of Crime Act, Asylum, Admiralty, Solicitors Act, Medical Council, Nursing Council, Dental Council, Extradition, European Arrest Warrants, The Hague Convention, The Luxembourg Convention and Crime.”

The Committee failed, among other failures, to look at the implications of the sentence “At present a very small proportion of personal injuries cases go to trial.” The statement is accurate and the credit belongs to the two branches of the legal profession, but those settled cases were not investigated by the Committee. The Committee was to “…examine all aspects of practice and procedure relating to personal injuries litigation and consider whether the present system of practice and pleadings is appropriate to modern personal injuries litigation.”

Surely the criterion of the success or failure of a practice or procedure is that it assist in the process of settlement? If the Committee did not investigate what was good and working in the then current system, how could they be said to have considered “modern personal injuries litigation”. (What is that?)

Then there was the note of regret; “However, litigants have the right of access to the courts…” and the recitation of the various lists, clearly addressed to lay ears. Those lists are not equivalent to each other and some generate vastly more work than others or, conversely, some generate little work.

What is notable is that Reports like this (particularly this one) depart from “initial conditions”. Here, the Minister defined the initial conditions. The Report then recites the then current practices. What is absent is evidence that the Minister’s conditions are pertinent to some real problem or that the current practices are seriously deficient.

We know that the practices and procedures were changed subsequent to the Report.

Now the Personal Injuries List is breaking down.

Don’t expect expressions of regret from any participants, or admissions that the changes for which the Minister was responsible have led to this.

This blog has looked at the drawbacks of informality in conducting court proceedings HERE.

It seems the situation can be worse than this blog had believed.

In Thema International Fund PLC v HSBC Institutional Trust Services [Ireland] (2011) IEHC the judge made the following remarks:

“It has become a growing practice for solicitors acting for parties in cases before the courts (and, I would venture to suggest, in particular, the Commercial Court) to copy correspondence to the court. Some lay litigants have adopted the same course.”

AND

“…care should be exercised that documents which may not ultimately be admitted are not brought to the court’s attention until such time as there has been a proper decision as to whether the relevant documentation is to be admitted.”

AND

“However, parties should exercise care to ensure that only documents which are properly before the court are included. It should not be assumed that a party has a right to bring documents to the court’s attention where there is at least an argument as to whether the document is properly before the court. Simply sending documents to the Court Registrar for the attention of the judge, without reaching agreement with the other side, is, in those circumstances not, in my view, proper practice.”

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?

Collectively, lawyers are, sometimes, fantasists. We know this from the postulation of “the man on the Clapham omnibus” or the proposition “…something snapped in my brain…”.

These fantasies are overt. We live with others that are covert. I have in mind the continued refusal of the Irish courts to make provision for class actions.

Currently, the courts will only admit of claims from single persons or, exceptionally, groups who have suffered the same damage in the same circumstances. These groups are, in effect, individual litigants who have made their claim in the same proceedings. They will know each other or their lawyer will know each of them in detail.

In effect, the Irish courts are imposing a narrow political and social vision of society on the Irish people. That vision admits as legitimate only the claims of the individual (usually a man). In fact we know very well that society functions through group action and that the groups are often very large.

This attitude by the Irish courts is not exceptional. The EU is toying, again, with the idea of permitting limited class actions in member states. See an earlier post on this HERE.

In the meantime, UK courts have, without significant difficulty, made provision for the bringing of class actions, We see the result of that in the capitulation by Royal Dutch Shell in a class action brought by Leigh Day (solicitors) on behalf of the population of Bodo, a town in Nigeria.

Will Ireland suffer the humiliation of Irish citizens bringing a class action in London for events which happened in Ireland?

Judge Charleton has criticized the adducing of evidence by (of) “too many experts” in a defective products case.

The report of the judge’s comments indicates that judge assumes that his view is correct, or more accurately, is conventional.

The judge’s view is in fact radical.

In Ireland, the decisions relating to the adducing of evidence in a civil action lie with each of the parties. This is a consequence of the fact that a civil trial in Ireland is a contest; it is not an inquiry.

Consequently, Judge Charleton’s comment is a challenge to that idea, not whether a counsel in one civil action erred on the side of caution and proved (or failed to prove) a matter using a surfeit of expert evidence.

We know this, because there is a time-worn method available to deal with erring counsel; deny his/her client the costs of the excess of evidence, assuming he/she represented the successful party. A judge who shifts a “costs criticism” into the heart of his judgment is either making a category error or is making a policy statement.

Should Ireland commission managed inquires, in civil matters, by the High Court? Should the judge decide what evidence will decide the outcome of such inquiries?

We don’t know. The reason we don’t know is that it has not been considered. The question is not one of fact; it is an issue to be decided by Irish society. Irish society has decided the issue already and that is reflected in the status quo. The status quo is this; a civil trial in Ireland is a contest and counsel for the parties will and does decide what and how much evidence should be adduced in a trial.

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.

Dear Mr. KenMore,

You will shortly be Taoiseach. I know that my voice is not foreign to you. I have an accent (metaphorically speaking) like Dermot Gleeson SC. That should alarm you but I know it will not. This is not because you are schizophrenic (which you are), but because, in your field, you need to keep talking and the explication of process uses a lot of words. Lawyers can elaborate process and consequently generate words. Like an oasis in the desert they seem to offer life (political life, in your case) allowing you to hold the floor, to occupy space of every kind, but principally space in the minds of others.

There is no guarantee that this is of value of the listeners. Perhaps you disregard this, at least for a time. That is a mistake. Before he was chairman of Allied Irish Banks Dermot Gleeson SC was legal advisor to Michael Noonan, who was brought to the point where he said he would eschew legal advice if he had his life (political, again) to live over. Maybe he will (eschew legal advice AND live his [political] life over again).

The mere occupation of space is a miserable ambition. Look at the outgoing government.

This letter is to ask you to repudiate what is graphically currently known as “stuff”. Stuff is process; it is the surface. It is the shiny trivia of life.

I propose that you look instead to principles not process. I know nothing of the principles of banking beyond what commonsense might suggest to me. I do, however, know something of what is fair and I write this letter to suggest that you commit to fairness in this election. Fixing a bank will not secure fairness, but fairness, in principle, is a requirement to secure good banking.

Here are some easy reforms to bring fairness to the people of Ireland;

A) Restore the limitation period for personal injury plaintiffs from two to three years;

B) Repeal the Personal Injuries Assessment Board Act of 2003;

C) Repeal the provisions of S. 10 of the Courts and Civil Liability Act 2004;

Michael McDowell SC wanted to reduce the limitation period for personal injury plaintiffs from three years to one year. Arguably three years is unfair; in matters of contract the period is six years, but I am not urging that you decide on that; just that you bring it back to three years. For many injured people it is no difficulty to take action within three years of their being injured, but there are many exceptions. On a question such as this, every effort should be made to ensure that nobody is shut out of justice. To close the door of the Four Courts (yes, it happened, literally) to injured plaintiffs is to favour reckless free riders over innocent people who have no social organization to represent them.

REFORM 1: Why should the limitation period be three years rather than two?

ANSWER: A limitation period exists to protect society from old stale claims. If a claim is old and stale a defendant may be unable to rebut the evidence of the plaintiff due simply to the passage of time. If matters had been addressed in speedy fashion a defendant might be able, by evidence, to show that it is not liable for the plaintiff’s injury or that the plaintiff was contributorily negligent to a high degree. However, this is hypothetical. Most cases of personal injury (car crashes etc.) are immediately known to a wide circle of people, including the “defendant”. In those circumstances the plaintiff’s delay is irrelevant to the defendant’s ability to defend itself.

On the other hand, a plaintiff needs time to start his/her proceedings. There are many obstacles to a plaintiff in this regard. The injury incapacitates the plaintiff; he or she cannot get the time, energy or opportunity to instruct a solicitor. The plaintiff may have money problems. The plaintiff, compared to the defendant, will often know less of the injurious event than the defendant. The plaintiff needs time to gather the evidence.

This point is seen in the extreme in cases of medical negligence. The courts have opined that it is professional misconduct for a lawyer to issue proceedings in medical negligence cases without the back-up of an expert’s report confirming the negligence. How long does it take to get that? It can only be sought after the medical records have been received from the putative defendant. Thus, for such a plaintiff, gathering the evidence requires force of character; the recovery of medical records; the choice of expert to advise on the issues and the receipt of an opinion written, often, by a busy professional to a very high standard. None of these things can happen quickly.

The choice should not be between two years and three years, but between three years and some longer period.

REFORM 2: Why should the Personal Injuries Assessment Board Act 2003 be repealed?

ANSWER: There are several reasons;

a) PIAB favours defendants; the system is mandatory for plaintiffs and voluntary for defendants;

b) PIAB generates delay for a plaintiff in the resolution of his/her problems;

c) PIAB facilitates the decay or dispersal of evidence exclusively in circumstances that favour the defendant and hamper the plaintiff.

d) PIAB is becoming irrelevant save to the extent of the effects referred to at a), b) and c) above.

REFORM 3: Why should the provisions of S. 10 of the Courts and Civil Liability Act 2004 be repealed?

ANSWER: It hinders the issuing of proceedings for personal injury in timely fashion. Compliance with S. 10 requires the injured plaintiff to gather substantial quantities of evidence and instruct lawyers relating to same, before issuing proceedings. A Personal Injury Summons is a substantial lengthy document and not readily compiled at speed. In lawyers’ language, could anything be more calculated to favour defendants compared to (personal injury) plaintiffs? For upwards of fifty years before 2004, court rules permitted the quick issuing of a Plenary Summons for a personal injury claim. Thereafter, the plaintiff had to serve a Statement of Claim with proper details of the claim pleaded. However, any delay in so doing was amenable to control by the court; it was not subject to the severest sanction – the expiration of the statute of limitation period. It is that sanction that now hovers over every personal injury plaintiff and is brought closer by the provisions of S. 10.

Clients may have a variety of difficulties with a solicitor. (See HERE on the topic of changing solicitors).

What if the solicitor dies?

What will happen to your litigation, say?

Possibly, nothing adverse. If your solicitor was in a partnership, another partner will continue running the action. (This might be a benefit rather than a disadvantage; not all solicitors are talented).

If your solicitor was a sole practitioner you are in trouble. You will need to change solicitors. (Strictly speaking, this is untrue; on the death of your sole practitioner solicitor you do not have a solicitor). You will need to find a new solicitor.

That solicitor will need to negotiate the transfer of the file. This might be straightforward or it might not be. See HERE about solicitors’ liens.

Once possession of the file is lost, so is the lien. When the file comes into the possession of the new solicitor he/she may file a Notice of Change of Solicitor in the Central Office of the High Court. There is a stamp duty on the Notice of €22.00.

The solicitor then serves this on the solicitor of the opponent and proceeds with the litigation.