McGarr Solicitors

We are a firm of lawyers. Our website should deal with legal subjects. Hopefully, we do not lapse from that rule and, without going to the trouble of conducting an audit, we think we do not.

It’s a broad rule and allows us to write (polemically if necessary) about such diverse topics as road accidents,  accidents at work,  medical negligence,  planning act infringements and fingerprints.

We could, if necessary, even comment on Bilbo Baggins’ contract with the dwarves at the beginning of The Hobbit. (1)

Now this, we think, gives us a practical turn of mind. Admittedly, it is difficult to know what that means and I think its meaning varies from situation to situation, but it probably means that we expect to reach for and grasp finality, or, as they say in the USA, we expect to reach closure (for our client).

That militates against interest in reviews of the current state of the law but certainly does not exclude it; we read or write them if we need to do so, but they are not our reading of choice. (2)

It is possible that a certain interest we express, in probabilities, springs from this utilitarian approach. Sometimes this appears so clearly our client notices it; one such litigious client bought us a crystal ball because we had lamented (too often) we lacked one. (3)

Being practical also means being discreet. At the beginning of the US civil war in 1861, the newspapers published the Federal army’s plans for forthcoming movements, having got the information from the army’s generals. Undoubtedly, the sales of newspapers increased substantially in Richmond VA. We try to avoid equivalent mistakes.

We also know the difference between discreet and discrete, (otherwise we would be incomprehensible) and we try to avoid being that. In the same vein we distinguish our inferences  from perceived implications and we deplore the use of “presently” to mean “currently”.

We hope we can understand an opponent even, or particularly, where we disagree with him. Take the National Newspapers of Ireland, for example.  It is this writer’s contention that the NNI position on its claimed property rights in internet links may be an old and sad error; a failure to know and use the subjunctive  in writing or speech.

Be that as it may (4), such an error can end in trying to defend the indefensible and what lawyer, at least, wants to end there?

What is the subjunctive? It is one of the three moods of English verbs: the indicative, the imperative and the subjunctive. The subjunctive conveys ambivalence and uncertainty. (5)

NNI cannot deny the uncertainty of its position on links; it asked the Copyright Commission to remove the perceived (by NNI) uncertainty.

So, the original position of NNI was this:

“Were we to possess a property right in internet linking to our websites we would charge our notified rates”

Unfortunately if your journalists, particularly your editors, are unfamiliar with the subjunctive you will retreat to the indicative  or even the imperative: now you have rubbed everybody up the wrong way.

1. Bilbo lacked legal advice. Surely he was more like a consumer than a professional burglar, as Gandalf had described his role? Nowadays if you go white water rafting, say, the organisers must ensure that you will come through the experience unharmed.
2. This brings CPD (continuous professional development) to mind. We do our CPD quota of hours every year, and more besides. Otherwise, professionally, we are toast.
3. In due course, when the shop in which he bought it went out of business we lamented to him how unforeseeable it was (not least for the shop) that that would happen!
4. The subjunctive!
5. When Phillip of Macedon sent a message to the Spartans – “You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”, they replied; “If.” 

All our phone, fax and email systems are back working again.

Thank you for your patience.

At the moment all Internet, phone and fax service to and from our office is broken.

Our Comms provider thinks that they will have the matter solved today.

We’ll update this post when service has been restored.

You will have noticed the black banner across the top of our site this week.

You may also have noticed the sudden flurry of media appearances and debates on radio around the issue of Minister of State Sean Sherlock’s plan to introduce a law to allow the music labels (and other copyright holders) to seek injunctions forcing Irish ISPs to block access to sites they don’t like.

“I will introduce this imminently, by the end of January.”
- Minister Sherlock, Sunday Business Post, 22^nd Jan 2012

This SOPA Ireland law, as it is is called, is similar to the proposals defeated in the US only a week ago after a mass uprising of grassroots protest- first from Reddit, and then joined by the biggest names on the net- Google, Wikipedia and so on.

However, unlike that US law, people here can’t even expect to have this blocking law debated in their legislature. The Minister has said that he intends to deal with the matter by way of a Ministerial Order. Nor has he published the text of the law. The first we, the people of Ireland, will know about the text of this law will be when it is signed and brought into force.

This is grossly wrong. This is why we were so enthusiastic when Sabrina Dent suggested that we launch a petition website to let other people (a) know what was going to happen and (b) tell the Ministers responsible that they object to the proposal.

That was long, long ago now. Monday morning to be exact. Since then, 30,000 people have emailed the Minister for State Sean Sherlock and Minister Richard Bruton at the Department of Jobs, Enterprise and Innovation to tell them they DO NOT WANT.

I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:

- Opening paragraph of the leaked Draft Text of the Ministerial Order

Minister Sherlock has been traveling around the airwaves acting as a recruitment sergeant for the petition by providing worrisome, self contradictory, “reassurances” about what he intends to do.

All in all, so far, our Public Interest Campaign site has facilitated a very successful piece of civic action.

But more will need to be done. Minister Sherlock has said that he intends that Richard Bruton will bring the Ministerial Order to Cabinet.

This is, to put it mildly, unusual.

A Ministerial Order (otherwise known as a Statutory Instrument) is only intended to bring in secondary legislation -ie, tidying up the administrative side of policies and laws already passed through the Oireachtas after proper debate.

On 29^th July 2011, the Minister was put on notice of this difficulty when Digital Rights Ireland (our client) wrote to his Department;

It is significant that Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be “democratically legitimised” (at para. 113).

It would be undesirable in any event for a matter dealing with fundamental rights to be disposed of by way of secondary legislation. It is all the more undesirable in this case, however, given the vague and open-ended nature of the powers involved. This is, in effect, a case of delegation heaped on delegation – rather than rules governing blocking and other remedies being made by primary legislation, or even secondary legislation, they are instead effectively being made by delegation to the judiciary.

The new plan to bring the matter to cabinet is an admission of the truth of that argument. But a discussion behind closed doors amongst a handful of Ministers is not good enough.

If a matter is so significant, contentious and complicated that it must be debated by Cabinet, by definition, it is not a matter which is suitable to be brought in by Ministerial Order without public debate and without careful scrutiny of the proposed text.

Ministers Bruton and Sherlock must now bring a Bill before the Oireachtas and let the sunlight in. This issue is too important to be left to the murk of backroom deals.

HERE is a link to a post of a year ago in this blog. That post identified professional indemnity policies for UK solicitors as the kind of business an insurer should avoid.

We now know that the losses in Quinn Insurance Limited were on the UK insurance business and that much of those losses were on professional indemnity policies for UK solicitors.

We don’t mind blowing our own trumpet, but it is depressing that what is easily seen by modest us cannot be seen, or will not be seen, by people who are paid to be exquisitely knowledgable about their field of “expertise”. Meaning here, Sean Quinn. He should return his salary of the last six years at least to Quinn Insurance Limited.

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!

This blog has proposed a remedy for fraud of public funds in the past (see HERE for an instance).

We see a commendation in similar terms from Professor Donal Byard of New York in the Irish Times (HERE).

Now we need only await the usual sullen silence by way of response.

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.

McGarr Solicitors use Macintosh computers; that is, we use computers with the Apple operating system on them.

The beginning of this was the Macintosh SE which introduced me to computer use in or about 1987.

For me, then, the database program in Appleworks was the most valuable element of the machine and its software. Despite the passage of time I have not found a database program as useful as that, despite its limitations, which were obvious.

Those limitations brought me to think about relational databases; in short, to look into the world of mathematicians and nerds, a place for which I was and am constitutionally unsuited. (Ten plus fifteen is twenty-six, right?).

Bill Gates of Microsoft owned or controlled the alternative machine. For me, it was’nt at the races.

So, now Bill Gates has retired. I endorse his future plans; I decry his past. Without him the better system, the Mac, would be everywhere.

Everywhere would have the benefits of an aesthetic and economical approach to computing. Unlike Bill Gates’ system, one would not encounter a “counter-intuitive�? element in an interface.

Which is not to say that native wit is everything in the learning of a Mac program; it is not.

But in Bill Gates’ system it would have been an impossibility to use Pagemeker to publish a book, as I have done, with the program written in Italian for the Italian market.

Ciao, Bill.

Ireland has vetoed the Lisbon Treaty.

Or has it? What is a veto? More particularly, what is a veto in the European Union?

Ireland has previously cast a veto (in the EU Council of Ministers) and it was denied that it had that effect. That is, it was treated as a dissent, not as a block.
See HERE for details.

The defeat of the Referendum on the Lisbon Treaty in Ireland is not a rejection of the European Union. However, the response of the European Union may indeed lead to a rejection of the EU. Only a Union based on law can attract and hold the allegiance of the people of Europe. The legal basis of the European Union lies in the treaties. Under the treaties Ireland’s assent to the Lisbon Treaty is a requirement to bring it into force.

To say that implementing the Lisbon Treaty was “going to be difficult” as Christine Lagarde the French Finance Minister did in Korea is to imply that the European Union is not an entity built on law.

To press ahead as President Sarkozy and Gordon Brown propose is to subscribe to the same implication. To propose a “two-speed” Europe (see HERE) is a proposal to abandon the European Union, a legally questionable idea.

The City of Derry wants to change its name. Actually the Derry City Council wants to change the name of the city, but the courts have ruled that they can’t do that because Charles II of England changed the name of the city from Derry to Londonderry by charter in 1652. (Note that the Council had changed its own name). The court went on to advance a questionable proposition; that the name could be changed by a change in the law, or by the Queen of England on receipt of a petition to that end.

At risk of contradiction by experts in the British constitution (has that been located yet?) it is most unlikely that the Queen would claim such a role or welcome the delivery of the petition regardless of her views on the two competing names, or her predecessor, Charles II.

A change in the law is a better suggestion.

The Law Society of Ireland had its name changed under Section 4 of the Solicitors (Amendment) Act 1994. The Society was formerly known as the Incorporated Law Society of Ireland. Like the Royal College of Surgeons in Ireland, it is an incorporated body under charter (in the case of the Law Society, a charter from Queen Victoria in 1854). These two chartered bodies are unusual in Ireland in not being semi-state bodies; not being subject to the provisions of the Companies Acts 1963-2003 and not being subject to oversight by the Oireachtas or, effectively, the Competition Authority (as currently operating).
Changing your name is normally charged with meaning. The trick is to find the meaning.

Kristian von Hornsleth made a general offer to the residents of a village in Uganda to gift them each a pig or a sheep if they adopt his name. Edith Hornsleth Babirye defended this arrangement (relationship?) following receipt of her pig, which she plans to use to pay school fees.

If you are in Illinois and want to be a judge – change your name. (To “O�?Brien�? it seems). Fred Rhine, look at this.

Minister of State Tony Killeen TD did not change his name but he has pleaded, effectively, a nomenclature malfunction. He denies responsibility for appeals in his name to Michael McDowell SC TD, for the early release of a murderer and, separately, a child rapist. The appeals were generated by a system established by Mr. Killeen; calculated to benefit him; written on his notepaper; purporting to be signed by him. A court would, on evidence like that, in a suitable case, convict him of conspiracy at least.

If he wants to change his name he needs to lodge a Deed Poll to that effect in the Central Office of the High Court.

The Law Society of Ireland didn’t have it that easy, it seems.