In W and M Wood (Haulage) Ltd. v Redpath [1967] 2 QB 520 the facts were these; a collision took place between a car and a lorry. It occurred on a straight stretch of road at night with no witnesses. The drivers and other occupants died. The available evidence was inconclusive as to fault. The court apportioned blame equally between the two drivers.

For more information see our Colour Supplement HERE

The revelation that Cardinal Brady was at the heart of a church hushing-up of crimes of Fr. Brendan Smyth prompts a reflection as to the malign uses of documents imposing confidentiality or curtailing rights.

In Byrne v Ryan [2007] IEHC 2007, the court considered a “consent” which a patient had signed prior to surgery. The Defendant referred to the terms of the consent suggesting that the Plaintiff might;

“…not become or remain sterile..”

The Defendant contended that this was a consent to the actual outcome of the sterilization operation (the operation had failed). The court rejected the argument, saying;

“It merely records the patient’s understanding that there is a possibility of failure.”

The courts have frequently rejected arguments that claims have been settled, as purportedly evidenced by “releases” signed by Plaintiffs.

In Horry v Tate & Lyle Refineries Ltd. [1982] 2 Lloyd’s reports 416, the Plaintiff suffered a personal injury at work. There was a possibility of a recurrence of the injury. The employer’s insurers negotiated a settlement with the Plaintiff who was not legally represented and was not independently advised. The injury did recur and the Plaintiff issued proceedings in respect of the original incident. The Defendants pleaded the “settlement”. The court ruled that the insurance company owed the Plaintiff a fiduciary duty of care to ensure that he got independent legal advice. They were also obliged to reveal the contents of their medical report on him, to him, and where their interests conflicted with his they owed him a fiduciary duty. Consequently, the settlement was not binding on him.

For more information see our Colour Supplement HERE

See the post “Gotcha?” below. In Clifford v Drymond [1976] RTR 134 CA the Plaintiff had been struck by a car at a pedestrian crossing. The court, accepting a calculation that the car that hit her had been traveling at not more than 30 mph and was about 75 ft. from the crossing when the Plaintiff began to cross, decided she had not been guilty of contributory negligence. She was 10 ft. onto the crossing when she was hit.

The appeal court found she was negligent to the extent of 20%. They said she should have allowed plenty of time to the car to stop or slow down and either saw the car or failed to see the car and was negligent in either event.

For more information see our Colour Supplement HERE

Auditors are “watchdogs, not bloodhounds” said the court in Re Kingston Cotton Mill Co. (No. 2) [1896] 2 Ch 279 CA. Even at the time this was a very limited view of what we can expect of auditors or their like. (It was also infelicitous; auditors are not and never were, even metaphorically, like “watchdogs”). Considering that Sherlock Holmes was an available “example” (1880 to 1907), it is surprising the judge did not feel more could be expected of the auditors of his day than he settled for.

The job of an auditor is to ascertain if the accounts provide “a true and fair view” of the company’s financial position. However, the auditor’s judgment on this is not, and should not be, absolute. After all, the auditor should not be the equivalent of an insurer where he pays if there is something wrong and loss accrues. In modern times the profession, as always, determines the liability of auditors. The profession has issued guidelines for auditors. Those guidelines now impose a higher standard on auditors than Re Kingston.

These guidelines were quoted in Moore Stephens (a firm) v Stone & Rolls Limited (in liquidation) [2009] UKHL 39

”Auditing Standard SAS 110 (issued January 1995) deals with fraud and error. It contains statements of auditing standards (SAS) and explanatory text in numbered paragraphs. SAS 110.1 states: “Auditors should plan and perform their audit procedures and evaluate and report the results thereof, recognising that fraud or error may materially affect the financial statements”. SAS 110.10 (para. 50) states that, on becoming aware of a suspected or actual instance of fraud, auditors
“should (a) consider whether the matter may be one that ought to be reported to a proper authority in the public interest; and where this is the case (b) except in the circumstances covered in SAS 110.12, discuss the matter with the board of directors, including any audit committee”.
SAS 110.12 (para. 52) provides that
“When a suspected or actual instance of fraud casts doubt on the integrity of the directors auditors should make a report direct to a proper authority in the public interest without delay and without informing the directors in advance.” “

The fact that the auditors in that case escaped by the skin of their teeth shows life is going to get difficult for the profession.

Occasionally this blog contains a misspelling. I have, for instance, misspelled “Brian Cowen” as “Brian Cowan”.

Nobody was misled; indeed, I was corrected by a reader.

There is, however, a human type that is radically intolerant of the mistakes of others. Alternatively, that type is inflexible in thought. Alternatively, these are human traits which some people have and others do not; and some people have both traits.

The result is that when a solicitor composes a letter for his/her client and writes;

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on 12 January 1995. . .”

the solicitor is fixed (not any more) with the serious consequences of failing to exercise a break clause for the Tenant.

If the solicitor had written:

Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to determine the lease on the third anniversary thereof. . .”

there would have been no error. The third anniversary of the lease in question fell on 13th January 1995 and not 12th January 1995.

This was the issue in Mannai Investment Co Ltd v. Eagle Star Assurance [1997] UKHL

Lord Hoffman referred to Mrs. Malaprop’s line (in the play “The Rivals) “She is as obstinate as an allegory on the banks of the Nile”, to explain why the law should change on the interpretation of such notices. Most people understand what Mrs. Malaprop says; indeed they also understand that her mistake is a joke and is intended by the playwright (Richard Brinsley Sheridan). (For the sake of the joke, the playwright conflated crocodiles with alligators, there being no alligators on the banks of the Nile).

The judge went on to say;

Mrs. Malaprop’s problem was an imperfect understanding of the conventional meanings of English words. But the reason for the mistake does not really matter. We use the same process of adjustment when people have made mistakes about names or descriptions or days or times because they have forgotten or become mixed up. If one meets an acquaintance and he says “And how is Mary?” it may be obvious that he is referring to one’s wife, even if she is in fact called Jane. One may even, to avoid embarrassment, answer “Very well, thank you” without drawing attention to his mistake. The message has been unambiguously received and understood.”

Lord Hoffman, with the majority, allowed the Tenant’s appeal.

The mistake of the Tenant or its agent was to fail to calculate when the third anniversary fell. Indeed, as a practical matter the mistake was to calculate it at all, as can be seen from the suggested form of the notice shown above.

As Lord Hoffman pointed out, nobody was misled.

In Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) V Van Colle [2008], the House of Lords has denied (3 to 2) that there is a civil legal right against the police for failing to take action to prevent criminal violence to the Plaintiff.

The leading case is Osman v United Kingdom (1998) 29 EHRR 245.

In that case the Plaintiff/Complainant was the widow of Ali Osman, and the mother of Ahmet Osman. Mr. Ali Osman was shot dead and Ahmet was wounded by Ahmet’s former teacher. The event was preceded by a history of deviant behaviour by the teacher towards Ahmet which was investigated by Ahmet’s head teacher and reported to the police. The ineffective police response was to “lay an information of careless driving” against the teacher.

In Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) V Van Colle [2008] there were two instances; in the first (Van Colle) case, Giles van Colle was threatened by and ultimately murdered by a man named Brougham. In the second case Stephen Smith was threatened by his former partner who subsequently attacked him with a claw hammer, seriously injuring him. The threats in both cases had been reported to the police who did nothing effective.

(Strangely, such failures may be common).

The quality of Lord Bingham’s minority judgment is a predictor that the issue will return and be reversed in the future.

He quotes Lord Keith in Hill v Chief Constable of West Yorkshire [1989] AC 53 as saying;

There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg v Dytham [1979] QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.”

He went on to say:

Considerable argument was devoted to exploration of the relationship between rights arising under the Convention (in particular, the article 2 right relied on in Van Colle) and rights and duties arising at common law. Should these two regimes remain entirely separate, or should the common law be developed to absorb Convention rights? I do not think that there is a simple, universally applicable answer. It seems to me clear, on the one hand, that the existence of a Convention right cannot call for instant manufacture of a corresponding common law right where none exists: see Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406.”

And again;

If, as other cases suggest, it is necessary for responsibility to be assumed for a duty of care to arise, then in my opinion the police assumed responsibility by visiting Mr Smith, initiating what was regarded by them as an investigation, assuring him that the investigation was progressing well and inviting him to call 999 if he was concerned for his safety. Public policy points strongly towards imposition of a duty of care: Mr Smith approached a professional force having a special skill in the assessment of criminal risk and the investigation of crime, a professional force whose main public function is to maintain the Queen’s peace, prevent crime and apprehend criminals. He was entitled to look to the police for protection and they, in my opinion, owed him a duty to take reasonable steps to assess the threat to him and, if appropriate, take reasonable steps to prevent it.”

What of a police force which pursues other agendas (“political”) rather than the enforcement of the law? In other words, where they are not so much negligent as complicit?

A plaintiff in Ireland claiming general damages for a deficient holiday is more likely to be successful than a similar plaintiff in the UK. However, the plaintiff in ARTIS v MFI Ltd. [2006] CC (Huddersfield) would not have been anymore successful if he/she had sued in Ireland.

The plaintiff had purchased a flat-pack wardrobe. The wardrobe and its measurements were advertised on the defendant’s website. On purchase and assembly it was discovered the unit did not fit in with the purchaser’s current units. The defendant refunded the cost of the wardrobe but refused to compensate the plaintiff for the time and effort expended on the disappointing wardrobe.

The court agreed and declined to order compensation for the plaintiff under that head. The plaintiff did receive a sum as compensation for loss of earnings referable to the time spent assembling the wardrobe.

(Apologies to students of John Steinbeck for the title to the post)

The default position in court proceedings is that the parties appear and speak for themselves. Nobody currently claims that this is a preferred option. In fact, it is avoided by the courts when possible. See HERE.

Ireland has neglected to make proper provision for the representation of litigants in court proceedings, as recorded HERE.

An ongoing event in Dublin is of interest in this context. The event is a civil action. The families of the victims of the Omagh bombing by the IRA are suing defendants they say perpetrated the bombing. Under new EU provisions the court has decamped from Belfast to Dublin. While in Dublin it is presided over by a District Court judge. The judge of the Belfast High Court is sitting alongside the Dublin District Court judge (and is taking a lively and central part in the proceedings, sensibly enough).

No less than six senior barristers (Queen;s counsel and Senior counsel) were ranged up before the two judges. (In addition there was usually a junior barrister for each senior and at least one solicitor for each senior.)

Much of the cost of this hearing is being paid for by legal aid under the law of Northern Ireland, from the UK Treasury ultimately.

That, although happening in Dublin, is foreign to Dublin or anywhere in the State.

It is inconceivable, impossible really, for such litigation to occur without the involvement of lawyers. The absence of funding for such a case in Ireland ensures the denial of justice without the embarrassment of a positive refusal by the Irish Executive (the Government), or the judiciary, of funding.

Reading of Lord Goldsmith’s interventions in the BAE scandal brings to mind Blossom Dearie’s rendition of “My Attorney Bernie�?.

Here are the words, but it’s essential to hear Blossom singing it to appreciate it.

My Attorney Bernie
(Words and Music by Dave Frishberg)

I’m impressed, with my attorney Bernie
I’m impressed, with his influential friends
He’s got very big connections
and I follow his directions
Bernie knows his way around
and so I always do what Bernie recommends.

I am blessed, with my attorney Bernie
I’m impressed, with the way he runs the store
He’s got Dodger season boxes
and an office full of foxes
It’s amazing all the different things
your average guy might need a lawyer for.

[Chorus:]
Bernie tells me what to do
Bernie always lays it on the line
Bernie says we sue, we sue
Bernie says we sign… we sign.

I’m in touch, with my attorney Bernie
In a clutch, he can speed right to the scene
and if I’m locked up in the jail
with just one phone call for my bail
he said to call his club collect
or deal directly with his answering machine

When I dine, with my attorney Bernie
He buys wine, from the rare imported rack
That’s cause Bernie is a purist
not your polyester tourist
Bernie waves the glass around awhile
then takes a sip and always sends it back

[Chorus:]
Bernie tells me what to do
Bernie always lays it on the line
Bernie says we sue, we sue
Bernie says we sign… we sign.

I admire, my attorney Bernie
I admire, any guy who knows his stuff
Sure we blew a couple ventures
with a counterfeit debenture
But you win a few, you lose a few
and like Bernie says you keep on hanging tough

Thanks to you, my attorney Bernie
Thanks to you, I’m considered well-to-do
Sure I made out like a bandit
Just exactly like you planned it
But like Murray my accountant
told me yesterday, I owe it all to you.

[Chorus]
On the dotted line.

Oddly, Lord Goldsmith, former UK Attorney General, denies complicity (he didn’t eschew that word) in the concealment of facts from an OECD corruption investigation. He claims the head of the Serious Fraud Office did that bit.

Lord Goldsmith, the legal advisor to the UK government took one view of the payment of huge bribes to Prince Bandar of Saudi Arabia, The Corner House took another and the UK High Court agreed with The Corner House.

Lord Goldsmith’s successor is reportedly fighting the good fight, which the Independent coyly reports thus:

The plan caused disquiet in the Cabinet but Baroness Scotland of Asthal, the current Attorney General, fought off suggestions that her powers should be limited.�?

What she is resisting is the curtailment of a claimed “right�? to ensure that no effective investigation and consequently no prosecution of corrupt payments by BAE will take place in the future.

Being Attorney General seems to involve a person in surprising things.

Regrettably, power drives the Judicial system, as it does the Executive. How else to explain the case of Mr. Goldstein?

Mr. Goldstein was (is) an Orthodox jew in Manchester. He wrote a cheque in favour of his business colleague in London, to whom he owed money. He had owed the money for some time and was, on one valid view, making payment late.

He put the cheque in an envelope. He also put in some table salt. The salt was a coded joke and was a reference to the fact that the payment was late.

In the postal system the envelope leaked; the leaking salt was discovered by a worker who handled it. This frightened the worker whose managers closed the postal unit until the nature of the salt was discovered. (Inspection revealed its nature). (Emphasis was placed on the fact that a system of a daily double postal delivery was reduced to one delivery that day, discommoding the public).

Mr. Goldstein was charged on indictment and was convicted. Conviction was affirmed in the Court of Appeal.

Luckily for Mr. Goldstein he had two assets; the will and opportunity to keep fighting and a good lawyer.

He appealed to the House of Lords where he was vindicated and his conviction was quashed.

The judgment is of interest to lawyers; it clarifies the crime of public nuisance. But the court went further. It pointed out that, on the known facts, Mr. Goldstein had committed no crime.

A calm, fair-minded person ought to have been able to see this; Mr. Goldstein had no Mens Rea,
no malicious intent. Why enclose a piece of paper with your name on it, in the envelope with the salt, if the intention was to cause a scare? (Of course, it was not incumbent on Mr. Goldstein to prove he had no such intent; it was for the prosecution to prove he did).

To explain what happened to Mr. Goldstein it is necessary to see the legal system as, in single instances, (that is, the individual cases) an expression of a process. The process is driven by power. The people who start and operate the process want it to have an outcome. The process can bring about the equivalent of “type-casting�? in the film and theatrical worlds. An actor who plays the villain finds only villainous roles are offered to him/her. In a criminal trial the role of the villain is always allocated to the accused, it seems.

The system (the operators) wants a conviction more than it wants an acquittal.