High Court Judgement

With very little bother or trouble, the Oireachtas could and should remedy a real and persistent injustice for many injured persons.

In Hu -v- Duleek Formwork Ltd & Anor [2013 IEHC 50,  the High Court declined to make a declaration that the Plaintiff was entitled to the benefit of an insurance contract taken out by the insolvent Defendant company. The insurance company, Aviva, took issue with the Defendant’s failure to pay the excess of €1,000 which, as between the Defendant and Aviva, it was the Defendant’s liability to pay in respect of the Plaintiff’s claim.

Aviva would not be able to do this in the UK.

Mr Hu was injured due to the Defendant’s negligence and, it seems, breach of duty. The Defendant had paid a premium to Aviva and insured itself against claims such as that of Mr. Hu. It would have got its indemnity entitlement if it had not been insolvent. Its insolvency prevented it paying the excess. Mr. Hu offered to pay the excess but Aviva would have none of that. Consequently Mr. Hu is left without compensation for his serious personal injury and Aviva have escaped paying him because there is no person to make them do it.

More than 80 years ago the UK decided that exactly these instances of  the doctrine of privity of contract, which doctrine was in essence the basis of the Irish High court decision, were indefensible and insupportable in such circumstances. Recently the UK law was updated.

All we Irish have to do is to copy what the UK has done.

The past is still here. 80 years is no excuse for perpetrating injustice; it is an inexcusable injustice. Laziness and indifference are human faults not explanations.

Congratulations to Mr. Pearse Doherty.

In 2007 McGarr Solicitors represented Catherine Murphy and Finian McGrath in a High Court challenge (Murphy & Anor -v- Minister For Environment & Ors [2007] IEHC 185) to the failure of the Oireachtas to revise the constituency of Dublin West (among others) due to the increase of population since the previous election. On a revision, based on the latest Census of Population, Dublin West would have had an extra Dail seat.

The Defendants were the Minister for the Environment, Ireland and the Attorney General. Under the Constitution, the “real” culprit was the Oireachtas. The Court said;

“It is important to note, firstly, that the obligation is one on the Oireachtas rather than the Government.”

It is notorious that this view of the Oireachtas is seriously deficient, although Constitutionally correct. The Oireachtas is powerless without the active support of the Government. Failures of the Oireachtas are in fact failures of the Government.

Our plaintiffs, Catherine Murphy and Finian McGrath failed in their challenge to defend democratic principles; Pearse Doherty has not.

Leaving aside issues as to the differences in a failure to move a writ for a bye election and a failure to revise a constituency, were we asking for the wrong “order”?

A sometime television advertisement showed a customer in a crowded pub catching the attention of the barman by asking for a Du.. Du.. Dubonnet, and being heard.

No more pints of Guinness!

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted. Clearly, the High Court is not convinced that the form of question suggested by DRI is exactly right (or is seeking the assent of the State to DRI’s form of question). The hearing next Wednesday will show us which is the case.

DRI’s case is brought in its own name, but it is an action with implications for every citizen of Ireland, whether they know it or not.

For this reason McGarr Solicitors have published DRI’s pleadings on the Web since 2006. This is reasonable; the Respondents are, in effect and name, the State. The issues are public law issues and there can be no prevailing claim to privacy on those issues from these Respondents. It is worth noting that it is not common, to put it at its lowest, to see pleadings of current proceedings published but there is usually an exception to every rule and we have one here.

Between now and next Wednesday we will re-formulate the questions to go to the ECJ. These questions will form part of the Order of the Court making the reference to the ECJ. We currently estimate a two year wait to get a hearing in the ECJ. Delay is inevitable; every Member State of the EU has a right to intervene and be heard in the matter. That implies that every Member State must receive a copy of the Questions and the parties’ submissions.

THE HIGH COURT
2006 No. 3785P
Between
DIGITAL RIGHTS IRELAND LIMITED
Plaintiff
And
THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL
Defendants
UPDATE (5/5/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government.

2. McGarr Solicitors act for Digital Rights Ireland Ltd.

3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.

4. On 5th May 2010 the High Court delivered its (unapproved) judgment. The Court confirmed its agreement to refer the EU law issue in the case to the European Court of Justice. The Court refused the State’s applications seeking denial of locus standi to the Plaintiff and/or seeking security for costs.

5. The matter will be listed before the Court again on 12th May 2010 for submissions on the form of question or questions to be referred to the ECJ.

Readers will have seen reference HERE to a plea in a medical negligence case as to the meaning of a “consent” signed by the patient (who was having an operation to make her sterile).

In Fitzpatrick v National Maternity Hospital [2008] IEHC 62 the Defendant claimed that the mother (in labour) declined an episiotomy or a forceps-assisted birth (leading to the damage to the infant). The court rejected this plea, and rejected the evidence of the Defendant, intended to evidence it.

In fact the evidence from the defendant was unequivocal; it alleged the parents had each rejected the offered treatment in circumstances where the staff said…

“…they could not be responsible for the consequences for her or her baby.”

… if the mother did not agree to the proposed actions.

The court said:

“I find on the evidence that Senior Midwife O’Dwyer did not, nor did Dr. Wiza, nor indeed did Staff Midwife Murphy (though on the evidence it was hardly her place to do so given the presence of the others) explain the severity of the plaintiff’s condition to either Mrs. Fitzpatrick or Mr. Fitzpatrick at any time prior to the birth of the plaintiff. I cannot imagine how it could be legitimately stated that this couple were extremely difficult to deal with in labour. I have already found that they were encouraged to and did formulate a birthplan which was given to and discussed with Staff Midwife Murphy on Mrs. Fitzpatrick’s admission to the labour ward, who then brought Senior Midwife O’Dwyer into the discussion.”

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.

“The Green Cross Code” is for pedestrians.

The equivalent for motorists is more extensive. However, any amount of rules will be wasted if a driver has a defective attitude to his/her “rights”.

Long before the motorcar appeared, the roads were used by pedestrians and animals, particularly horses. It is within living memory that a large cattle market thrived at the top of Prussia St. on the North Circular Road in Dublin and the cattle were herded down the NCR to the docks for shipment to, usually, the UK. All that is gone now.

What motoring “entitlements” could be asserted in circumstances like that?

With the departure of the animals, only pedestrians remain to hinder the motorist. Pedestrians, being more malleable and responsive than animals, avoid offering themselves as a hindrance, for good reason.

Who has not been challenged by a motorist for having the temerity to walk across a T-junction, obstructing a turning car? Most pedestrians anticipate the car and yield to it, although the right of way generally rests with the pedestrian.

What hope, then, that a motorist would anticipate a momentary error by a pedestrian in a “refuge” on a dual carriageway? The self-same driver is, after all, in the “fast” lane as he/she zips past within inches of the pedestrian.

The fact is, a driver is obliged to drive in such a manner and at such a speed as to avoid a pedestrian who MAY step out onto the roadway. That implies that it is an obligation to SEE the pedestrian and, probably, to LOOK AT the pedestrian.

We see much of this in McDermott v McCormack [2010] IEHC 50.

The Defendant driver admitted he did not see the Plaintiff pedestrian. The Plaintiff was an admirable witness, given that he was thrown into the air by the Defendant’s taxi. The Defendant gave evidence of the Plaintiff’s head hitting his windscreen. The judgment does not record the Plaintiff’s evidence in detail on the point, but if it was tendered it would probably have been in terms of the Defendant’s windscreen hitting him on the head.

The case looks like one of excess of ambition by the defence. They were in possession of a report from a hospital showing the Plaintiff had been very drunk when the accident happened, but, as the judge remarked;

“…He was an alcoholic. Unfortunately, he still is. That does not disentitle him to damages.”

In the event the court found (without reference to the Green Cross Code, it not being law), the Plaintiff was 50% responsible for the accident (there was no crossing point on the road at the point of the accident) and reduced the damages from €266,758 to €133,379.

For more information see our Colour Supplement HERE

The judgment delivered today by Ms. Justice Laffoy in the case of

Shell E&P Ireland Limited -v- McGrath and Ors

can be found in pdf format by clicking on the above link.

The file is 3.6Mb in size, so may take some time to download. It runs to 55 pages. A summation may be found from page 54 onwards.

McGarr Solicitors act for the 2nd and 5th Defendants.

It is difficult to know where to begin to decry what is happening in the Commission of the European Union. I am referring to the review of the National Asset Management Agency (“NAMA”) by the Commission. A good point of departure is that we do not know what is happening there. The Commission makes no (perceptible) effort to tell us and our Government likewise tells us nothing [useful].

The missing information is of economics [and consequent policies] following the disastrous property bubble here in Ireland. That bubble has caused havoc with the economy; it has driven unemployment upwards; it has destroyed pension plans; it has blighted the work prospects or careers of many young people.

Let’s start with something most people did not know; at least two of Ireland’s banks were and are too big to fail. That innocent phrase implies that we the citizens are to those banks as one conjoined twin is to another. We risk death if the bank expires, it is implied.

If true, how did we permit such a relationship with a private institution?

Leave all that aside. What should we do to “save” the banks?

The Government’s plan is NAMA. That plan is flawed. It has been changed more than once. We know that it has been mis-sold to the citizens of Ireland by the Government; it claimed the purpose of NAMA was to facilitate lending by the Banks to businesses. That is not true and never was, to the knowledge of the Government.

Now the plan is under consideration by the EU Commission. Specifically it is being considered by Joaquin Almunia the new Commissioner for Competition. He is in fact not all that new; he used to be Commissioner for Economics and Monetary policy. The bad news is, he is not good at his job. He failed to spot the Greek crisis that has hit the EU with the force of a runaway train; it was his job to see that problem. Instead he was in Dublin, cheerleading for the Government where he publicly endorsed NAMA. We learned his communication skills tend to emulation of an Electromagnetic Pulse.

Of course, no skills are needed if the EU “review” is just for the “optics” of the process. The heart of NAMA dictates that the citizens of Ireland will pay [consciously] way over the odds for the “impaired assets” of the banks. The pseudo words of justification for this are, “long–term economic value”. There is no such thing.

It’s voodoo economics.

Hints have been given by the Government as to the high price they intend to saddle the citizens of Ireland with. If the hints are correct, we are about to agree to pay €54 billion for these “assets”. We know for sure that this is not the value of these assets. What is the value of the assets? We must look to the cases coming before the Commercial Court. On 19th February 2010, in one case alone the asset had fallen in value from €31 million to €600,000 in a period of just over 3 years. The judge remarked that in his opinion, assets had fallen by 70% to 80% in value. He had previously guessed a fall of 50%. In short, the values are still falling. Let’s take the price of €54 billion; assume that is the book value of these bank assets. A fall of 80% would mean they are worth [now] €10.8 billion. If the case of 19th February 2010 represents the full general fall in value, the €54 billion is worth “just” €1.08 billion.

One sometimes thinks that the true home and centre of he European Union is on the heights above Prague and its poet is Franz Kafka, but a better perspective is to realize that some human capacities are not as general as might be thought. Why do we think that Mr. Almunia must be capable? What if the genius of Keynes is like visuospatial ability? People without the capacity do not know of what they are bereft, and those with the capacity cannot conceive of a person who lacks it.

Wake up Joaquin Almunia!

There seems to be no end to the debt of gratitude the Irish (and now, the English) legal profession owe to the managing director of Ryanair.

He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by this writer for such use).

He, (we are now back talking about the managing director; (see what happens when you eschew words like “aforesaid”)) has promoted (indirectly) the use of interrogatories in Irish practice and procedure.

He has generated legal work for members of the profession (with more to come in England).

These are not insignificant benefits. Why is the Chairman of the Bar Council silent in the presence of such merit?

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