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.

It is surprising how often the willfulness of lawyers or litigants drives litigation, rather than evidence. We see an instance of this in the “theory” that William Shakespeare did not write the “Shakespearean canon” and that the plays and poems were written by, among others, Francis Bacon. This theory was first advanced by Delia Bacon in a book published in 1857.

The essential element of the book, in explaining its success, was prolixity. A work is prolix if it is too long. It is a general human failing to think that there must be substance to something if it can be written about at length.

At any length, Ms. Bacon’s book was too long.

In this vein, some solicitors and some barristers stand out for an inability to produce short affidavits. They talk all around the problem, avoiding the terms in which the opponent has defined the issues. This may be very good in principle, but it is tiresome in practice and oppressive when the prolix affidavit is sworn in the cause of big institutions, for, in truth, this is a feature of struggles with big institutions; they try to talk the problem away.

Council Regulation 41/2001, “the Brussels Regulation” decides the proper jurisdiction for the determination of disputes in the EU.

Its authors must have been chess fans, dreaming of the great games of the early twentieth century when Capablanca and Lasker dominated the game. That is, it is hoped the authors had dreams.

In a chess dream one does not want to know that Capablanca and his wife Gloria did not get on well and had affairs, even if one does want to know that he became a Cuban civil servant “…with no particular duties but to be famous and go about putting Cuba on the map”. (We have aspirants in Ireland for jobs like that, hence my inappropriate interest).

Likewise, we provide no market for books entitled “The Philosophy of the Unattainable” [Lasker].

No, indeed, chess players should be seen and not heard. They should play the game and recede into the darkness (better still, the languorous white light of the Cuban midday), when the game is finished.

That half-remembered, half-forgotten realm of austere thought seems to be the birthplace of the Regulation. The Regulation has the appearance of simplicity but it is deceptive. It has the capacity to throw up great surprises from apparently straightforward circumstances.

Who would have thought that it would favour the Irish legal profession?

What else can we conclude when we see the Regulation in action in Knight v Axa Assurances [2009] EWHC 1900 QB?

The Plaintiff was injured in a road traffic accident in France. The Defendant was the insurer of the French motorist who had injured him. Under French law the Plaintiff had a direct claim against the Defendant as insurer. That claim was for the payment of compensation, and therefore was a debt. The place of payment of debts is, generally, where the Creditor is domiciled. Furthermore, the Plaintiff was a beneficiary, under French law, of an insurance arrangement and Article 9 (1) (b) of the Brussels regulation applied.

In Ireland, we have not introduced provision for injured persons to claim against the insurers of the malfeasor who caused the loss. This provision is available in the UK and, it would appear from Knight v Axa, France.

Therefore, in Ireland, third parties (other than named beneficiaries) are not “beneficiaries” under policies and cannot invoke Article 9 (1) (b) of the Brussels regulation to issue proceedings in their home state. They have to sue here, being the place where the wrongful event happened and the defendant resides.

In the public service strike, the courts stopped work on Tuesday the 6th of November 2009. This is of less interest than the stoppage of the previous Friday. The judges of the superior courts went to school that day and, of necessity, ceased working. Why was this interesting fact not reported by the media? More importantly, why do we not know the subject of the lessons of the day?

We owe great debts to Montesquieu but he over-egged the pudding when he asserted the primacy of the constitutional principle of the separation of powers. The Executive power will not countenance, and never has, full judicial independence.

Consequently, it is naïve to think a court is not an agent for the application of Government policy, as expressed in law (and sometimes not so expressed).

This may not be the context for the judges’ lessons, but we can hardly think they need refreshers on whether Ms. Donohoe should have won in Donohue v Stevenson [1932] AC 562.

Perhaps they needed a good talking to about the imperative to front-load legal costs on uppity Plaintiffs seeking injunctions?

Or why proposals to re-introduce the death penalty into Ireland ought to be seriously addressed, to distract from current political difficulties?

Or why the current chaos in the Irish legal system, that is the provision of discovery of documents, should persist?

Of course, the lessons may not address these things at all. They may be perfectly standard “continuous professional development” stuff, consisting of a review of recent case law on some theme, say, Tort law.

Either way, it behooves the media to at least ask what is taught at Judge school. It might tell us something about Ireland we need to know, and God knows, we know very little.

Conventionally, to propose a debate is to, impliedly, claim to be reasonable. Calling for a debate overlooks the fact that we cannot, and should not, submit everything to debate; where things are settled and agreed, they should not be opened to examination (and procrastination), unnecessarily. The call may be further invalid (and in bad faith), in not really proposing a debate, but simply using it as an announcement of intended, forced, change.
That’s the reality of the debate proposed by Colm McCarthy, the economist, on compensation for personal injuries.
He, in effect, is proposing to reduce that compensation. His proposal could be ignored if we did not know that he expresses the view of Brian Cowen, the Taoiseach; that is, he expresses the view of the Government.
This is valuable. As a consequence of knowing his connections, we have an insight into the Government’s view of NAMA. Mr. McCarthy has proposed that NAMA be used to process the payment of personal injuries compensation.
Currently, the Government has tunnel vision when it comes to money and payments; it wants to reduce it’s liability to pay them. Imagine our scepticism if Brian Cowen claimed, now, that he wished to be “fair” in proposing, or introducing, a new method of delivering compensation to injured persons. (Consequently, we have Mr. McCarthy flying the kite).
For a long time the Executive has undermined the constitutional principle that the violation of bodily integrity be vindicated.
a) It abolished the use of civil juries to determine liability and quantum in personal injury cases.
b) It has reduced the time within which an injured person must issue proceedings against a wrongdoer, before being statute barred and deprived of the right to be compensated.
c) It has imposed a cumbersome procedure on personal injury claimants by means of the Personal Injuries Assessment Board (“PIAB”) (aka “the Injuries Board”).
d) It has attempted to block access of injured persons to experienced personal injury lawyers.
e) It has introduced intimidatory procedures for Plaintiffs in the personal injury litigation process.
In Ireland, as in the UK, we have formally addressed the necessary, process of reforming our laws.
We have a Law Reform Commission. We have a Committee on Court Practice and Procedure. We have a Constitution Review Group. We have an Oireachtas Committee on the Constitution.
In short, we are not lacking in mechanisms for correcting archaic legal elements.
Now, it seems, we have one, possibly two, more. They are Colm McCarthy, and NAMA.