Sometimes, counsel’s opinion is just plain wrong. Of course, sometimes clients get what they insist on having. From the outside it is not always easy to see what caused the disaster, as in MMP gmbh v Antal  International Network gmbh.

According to the judgment the Plaintiff was alerted to the danger of advancing the case for compensation on a basis of a reduction in value of the corporate plaintiff itself.

When that proved unpersuasive, the evidence adduced on quantum was discounted and the court was left without any evidence on which to base an alternative claim. In effect, the plaintiff won on liability and lost on quantum.

All duck or no dinner!

These conversations can have odd aspects; one lawyer (A) may wish to speak “without prejudice” and the other lawyer (B) may not share that desire, for the things that he/she has to say. B may speak expressly on those terms.

Are the banal, uncontroversial terms of B not to be disclosed to a court?

Irish judges, particularly in the lower courts, are not receptive to submissions that some or all elements of “without prejudice” discussions may be disclosed to the court.

In Oceanbulk Shipping & Trading SA v TMT Asia Limited and others [2010] UKSC 44 the UK Supreme Court examined a particular basis on which evidence of “without prejudice” discussions could be admitted. (To aid in the interpretation of an agreement between the parties).

The Court, in its judgment, referred to Investors Compensation Scheme v. West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98; [1998] 1 WLR 896, also a case turning on document interpretation. Here is a sample from it;

“Secondly, the parenthesis seemed very strange against the background of the law. If it was exhaustive, why was “sounding in rescission for undue influence” singled out? What about rescission on other grounds, or claims for breach of statutory or common law duty? It was rather like providing in a lease of a flat that the tenant should not keep “any pets (whether neutered Persian cats or otherwise).” Something seemed to have gone wrong.”

And again:

“The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”

By Irish standards this last point is hard to take. After all, we have the leader of our Executive addicted to the phrase, “…going forward”. His predecessor’s mode of expression was sufficiently eccentric, closed and personal as to be representative of a type; Bertiespeak.

Our politicians fall, consistently, into solecisms. (Our Minister for Justice etc. tells us persistently that he will appraise his ministerial colleagues; would that he did, and let us honestly know the outcome).

To cleave to the standards of the UK courts would lead to apoplexy. No, no; that’s too much.

That said, we should fight against a complete absence of standards.

Save the word “presently”; it does not mean “currently”.

Save the word “refute”; it does not mean “reject”.

Save the word “pleaded”; there is no word “pled”.

We see this in Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010] UKSC 35 (28 July 2010)

The appellant, had drilled an oil well sideways under the respondent’s land. It had been found, at first instance, that this was a trespass.

The Supreme Court remarked;

“It has been observed that anything that is drilled below a depth of about 8.7 miles or 14 kilometres would be crushed by the earth’s pressure of 50,000 pounds per square inch and vaporised by a temperature of 1,000 degrees Fahrenheit:…”

This, the Court found, was no bar to the correctness of the finding that drilling 3 wells at respective depths of 2,900, 2,800 and 950 feet below the respondent’s land was a trespass.

For more information see our Colour Supplement HERE

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

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

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.

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.

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?

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)