Practice & Procedure

In everyday life we must, and try to, say what we mean. This is doubly the case in giving evidence. Look at this:

QUESTION;   You didn’t call out for help?

REPLY:           No.

By this reply, the witness has now sworn that he/she DID call out for help. We see this if we express the intended reply at length –

“Yes, I did not call out for help” (or, “I did not call out for help”).

Counsel must be careful of this. A question and its reply will enter the transcript (where there is one). That transcript is the only admissible record of the trial, in any appeal. It is not (practically) open to correction. Only the witness can correct his or her mistake, if there be one, because what is in issue is what is meant and only the witness may explain that. There are no witnesses in an appeal hearing, to do that explaining.

What Counsel is presumably intending is to elicit the reply “I did not call out for help”, OR, “I did call out for help”.

Alternatively, the proceedings have arrived at an intended (or otherwise) crisis point. Perhaps the Counsel is dozy and complacent and the witness is not, or it is the reverse, (or they both are). Perhaps the significance of calling for help, or not calling for help, is considerable. Perhaps not calling for help is not credible. That implies the witness is not credible.

Better still, perhaps the witness is challenging the Counsel and means to convey – “So what, if I did not call out for help?” This is unlikely. A witness of that calibre would not make the grammatical mistake of simply saying “No” in reply to the question. The reply from such a person would be – “That’s right, I did not call out for help.”

The modern age (possibly prior ages also) has trouble with negation in English speech but there is little excuse for it. The English rule is clear; a double negative is an affirmative.

“I can’t get no satisfaction” means “I can get satisfaction”. In fact, it implies that it is next to impossible for the speaker to fail to get satisfaction. From the little we know of Mick Jagger, that was true, but we feel he would have replied “No” to our question; he is, or was, that type of person also.

This matter was returnable today for directions by Mr. Justice Kelly in the Commercial Court.

The High Court Record Number of this matter is 2012/12381.

Mr. Ronan Lupton BL, appearing on behalf of Digital Rights Ireland Ltd and instructed by McGarr Solicitors applied to the court for leave to serve a Notice of Motion, together with grounding affidavit, seeking to intervene in these proceedings as a friend of the court, or Amicus Curiae.

The court set a date for the hearing of this Motion of the 25th February 2013 at 2pm. Written legal submissions to be filed and served by the 8th February 2012.

No party objected to the application.

Each relevant day the Legal Diary carries this message;

“With effect from Thursday the 1^st December 2011 the following arrangements will apply to all cases listed in the Dublin Personal Injuries List. Cases not assigned to a judge for hearing on the day on which they are listed will roll over from day to day until the end of that week. Any cases not reached or commenced at the end of a week will be dropped from the list and will require, in due course, an application to be made for a new hearing date in the usual manner. All Specially Fixed cases and cases afforded priority will retain priority over other cases and will be assigned for hearing in the order in which they appear in the list. All other cases will be assigned for hearing at random each day and not in the sequence in which they appear in the list….. Parties must notify the Court if an Action is likely to take more than four days for hearing.”

The trial of any High Court personal injury action is a complicated project. Like all cases, it is a contest between the Plaintiff and the Defendant. In some cases much will have been agreed or conceded; in others everything will be in issue.

The trial must be run in accordance with the rules of evidence. So, in the absence of agreement, a Plaintiff must prove the injury and its extent and consequences and that the Defendant caused it. The second of those issues is the liability issue, the first is the quantum issue. Sometimes the quantum issue is a liability issue; the Defendant may not dispute that the Plaintiff is suffering some health problem but may dispute that the Defendant caused the health problem.

In these circumstances the Plaintiff will have to bring his/her doctors to court to give evidence and be cross-examined. (Of course, the Plaintiff will also be giving evidence of, at a minimum, his/her injuries.)

Doctors are busy people, some more than others. A doctor may be habitually in surgery, working long and erratic hours. Nonetheless, when requested to attend court to affirm the contents of a medical report, the doctor has a professional duty to attend.

But when? The quoted notice sets out the position; no ordinary personal injury case listed for hearing in the High Court is assured a hearing, not to speak of a hearing date. But, the Plaintiff must turn up on the date the case is listed. The Plaintiff must be ready to prove the case. Then the court system fails the Plaintiff. There are no judges available to take any of the listed cases. Even if there is a judge, each case is put into a lottery to see which case(s) will go the available judge(s).

Not to worry, there is always tomorrow. Indeed, but what about the witnesses? They presumably made arrangements to drop work promptly on getting the call from the Plaintiff’s solicitor and go to court in accordance with some scheduling scheme of very delicate construction (because it is difficult to estimate for how long a prior witness will be giving evidence).

And what of the Plaintiff and his/her supporters/relations? They have to put their employment on hold. But read the notice; the case will roll over from day to day to the end of the week. So the time out from ordinary mundane life lasts just a week (less one day; Monday is exempt from trials).

Who pays for these waiting days? The Plaintiff must pay, because the Defendant will not be obliged to pay for the delay. It was, after all, generated by the Courts Service, you might think.

In the view of this writer you would be wrong. It is wrong to think that every personal injury action must have a trial. This is impossible; there are not enough court resources (judges, courtrooms etc.) to deliver this in fact.  So, the system must be one that achieves settlements acceptable to Plaintiffs and Defendants. A system which establishes principles of liability, and quantum values, is the required system. If a Defendant knows that the system will deliver a judgment for the Plaintiff and knows what the compensation for the Plaintiff is likely to be only two issues remain to be vouchsafed; that the costs will increase with the passing of time and that those costs will have to be met by the Defendant.

That is the system that currently is missing in the Irish High Court and that explains the notice in the Legal Diary.

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 (12^th November 2012)

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 Genevieve Burke 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 State parties appealed the judgment of Laffoy J. to the Supreme Court. The appeal came on for hearing before the Supreme Court on 24^th October 2012 and finished that day. Judgment has been reserved.

Suppose a plaintiff fails to comply with the pleading requirements of Section 10 of The Civil Liability and Courts Act 2004. What will happen to the plaintiff or his/her claim? The Section provides as follows;

“(3) Where a plaintiff fails to comply with this section—

a)              the court may—

(i)             direct that the action shall not proceed any further until the plaintiff complies with such conditions as the court may specify, or

(ii)           where it considers that the interests of justice so require, dismiss the plaintiff’s action,

and

b)             the court shall take such failure into account when deciding whether to make an order as to the payment of the costs of the personal injuries action concerned, or the amount of such costs.

(4) Where a plaintiff fails to comply with this section, the court hearing the personal injuries action concerned may draw such inferences from the failure as appear proper.”

These are very strange ideas. Remember that the plaintiff has pleaded the essentials of the claim; that the plaintiff was injured; that the injury is the fault of the defendant.

Prior to 2004, for not less than fifty years, plaintiffs were not required to give any further details on the issue of proceedings. The plaintiff was, however, obliged to give the details to the defendant before the trial. It was, (and still is), in the plaintiff’s interest to find out those details and to communicate them to the defendant. Only when the defendant knows these things can the defendant readily agree to settle the claim. Settlement is the best outcome of personal injury litigation; there are insufficient judges to adjudicate on all or most claims for personal injury.

Section 10 has changed the focus. It has done this by changing the tone. Take the subject of injury. How should an injury be pleaded? Is it sufficient to say that the plaintiff’s right leg was broken? Or that he suffered a burn on his right arm?

The answer might be yes, but in practice the pleading of these injuries will rely upon the description given in an available medical report. So, the exact site of a break in an arm will be pleaded (because doctors mention these things) and the form and degree of the break will be pleaded. So, too, for the burn; where it is and how deep and how long it took to heal will be pleaded.

But suppose some of these things are not yet known? Then there is a temporary insufficiency of pleading. Time will usually cure this and the plaintiff will become enabled to plead in full.

Section 10 will have none of this. How dare the plaintiff issue proceedings when full details are not pleaded?

Look at the sanctions for this attitude problem. The judge can prevent the case from proceeding until the plaintiff conforms to the new standard. Or, the court can dismiss the claim. Or the plaintiff’s entitlement to costs may be imperiled. Or the court can be portrayed as having a huffy attitude, at trial, to plaintiffs whose pleading does not meet the standard the court might be persuaded to adopt on these questions.

These disputes will emerge long before the trial. They will, usually, emerge before the close of pleadings.

What does that mean?

Currently, it means that the pleadings are closed when the defendant serves a defence.

So, the defendant will harass the plaintiff so that the defendant’s obligation to serve a defence can be evaded.

Section 10 of The Civil Liability and Courts Act 2004 has the appearance of being reasonable, but the references to the address and occupation of the defendant are telling. The obligation to plead these is conditional on the plaintiff knowing them. Thus, if they are not pleaded, the defendant knows that the plaintiff does not know them. Of course, given that the Personal Injury Summons is directed to the defendant, it is surely odd that a statute requires a plaintiff to demonstrate knowledge of the defendant. There are practical reasons why the plaintiff needs to know the address of the defendant, but to require that it is pleaded is not to assist the plaintiff or, even, the defendant; he/she knows already.

Then, the plaintiff must plead the injuries suffered. This is fine, if the plaintiff knows what those injuries are. Sometimes, the plaintiff does not know all the injuries, or is in search of a prognosis, implying that he/she cannot fully describe the injuries just yet. Section 10 implies that the plaintiff cannot issue proceedings until these things are fully known.

Then, the plaintiff must plead full particulars of “all items of special damage in respect of which the plaintiff is making a claim”. What does “all” mean? Well, it surely implies that claims not included in the pleading in the Summons are either being waived or cannot later be made.

Legal practitioners have a solution to that; plead every conceivable item of loss and, later, waive those that do not apply. Section 10 prevents this; it requires that “full” particulars be pleaded. This implies that the plaintiff cannot issue proceedings until all these losses are accrued and known, or, as mentioned, that items not pleaded cannot later be claimed.

Then, the plaintiff must plead full particulars of “the acts of the defendant constituting the said wrong and the circumstances relating to the commission of the said wrong”. Before 2004, plaintiffs had such an obligation and had to discharge it. But that obligation pertained to the trial of the action, not the issuing of proceedings. Section 10, in effect, is suggesting that, nowadays, a plaintiff cannot issue proceedings until he/she is ready to bring the case to trial. Often, a plaintiff will have need of the reports of experts before he/she can meet the obligation imposed by Section 10. The obligation implies that the plaintiff’s investigation of the event in which he/she was injured is now complete and full, before the issuing of proceedings. This is an ideal, but often impossible to achieve. Indeed, court procedures exist to allow the plaintiff to commence or continue investigations after the issue of proceedings, by the process of “discovery”, for instance. Section 10 undermines this approach to litigation. But Section 10 only applies to plaintiffs suffering personal injury; all other plaintiffs are not so burdened.

Finally, the Section, just to be sure, to be sure, demands that the plaintiff plead full particulars of “each instance of negligence by the defendant”. This is surely redundant; a plaintiff who has successfully pleaded “the acts of the defendant constituting the said wrong …” has already met this obligation.

Bear in mind that the plaintiff must overcome these obstacles within two years of the cause of action; i.e. the accident in which he/she was injured.

Why is Ireland’s limitation period for personal injury two years rather than, say, three years?

In the UK, the equivalent period is three years. In addition, judges in the UK are given a discretion to permit proceedings to continue despite the limitation period having expired. Irish judges do not have such discretion.

A limitation period is a period of time after (in these cases) an accident causing personal injury. If an injured person does not issue proceedings during that period (or its extension, if it is extended) the claim is statute barred.

There are many cases where an injured person fails, for understandable reasons, to meet this deadline. Effectively, a wrongdoer, injuring someone, has been relieved of the obligation to compensate that innocent person. The wrongdoer has been excused due to the circumstances of the victim.

Those circumstances include those of the victims of medical negligence. When persons are in hospital they frequently expect to suffer personal injury in the form of a medical operation. So, the fact of injury is not itself suggestive of negligence on the part of the hospital. What is or might be suggestive of negligence in such circumstances is open to debate. The issue becomes one of when it was reasonable of the injured person to seek evidence of negligence and to issue proceedings within two years of that time. If the victim’s lawyers issue proceedings more than two years after the event, the defendant’s first resort will be to seek the trial of a preliminary issue:- is the plaintiff statute barred?

In doing this the defendant will know that the plaintiff was not free to serve proceedings without first obtaining a report from an eminent medical expert confirming the negligence of the defendant. It takes a long time to source and receive such a report. The report cannot be commissioned until the defendant has delivered copies of the plaintiff’s medical records to the plaintiff.

There are no extensions of time available for victims of medical negligence, unlike victims of road traffic accidents who get extensions of time in the Personal Injuries Assessment Board system.

So, what does a victim of medical negligence have to do? He/she must, within two years of the event:

A)            Resolve to investigate the injury:

B)            Find and consult with a specialised solicitor;

C)            Receive copies of the medical file;

D)            Find a suitable medical expert willing to give evidence in a negligence action against medical colleagues;

E)             Commission the expert’s report;

F)             Wait while the report is written (by a busy professional);

G)            Receive the report;

H)            Instruct the solicitor to draft and issue proceedings

I)              Issue the proceedings;

These are the circumstances that, in the UK, will prompt a judge to exercise the discretion to extend the UK three year period for the issuing of proceedings.

In Ireland it must, without fail, all happen within two years.

Since 2004 the limitation period within which an injured person must issue personal injury proceedings, before being barred from bringing such a claim, is two years.

Because such a person is [generally] obliged to apply to the Injuries Board for an assessment of the value of the person’s claim before proceedings may be issued, time is suspended from running under the limitation period while the Injuries Board is considering the application (and, possibly, corresponding with the guilty respondent or his/her insurance company). Not only does time not run during that period, it does not commence running again for six months after the Injuries board issues its authorisation to the injured applicant to issue legal proceedings.

There is an exception to this regime; if the guilty respondent dies at some point the injured applicant has two years to issue legal proceedings from the date of the death of the guilty respondent. This time period, it appears, does not cease to run because the applicant has lodged an application to the Injuries Board.

It is very possible for an injured applicant to know nothing of the personal circumstances of a guilty respondent. Even the Injuries Board may know nothing of those circumstances; the Board will carry on correspondence with a lawyer or an insurance company acting for the respondent (who, in their turn, may also not know of the state of health of the respondent).

The Injuries Board claims to process applications, on average, within approximately seven months of an application. Depending on the facts of the case this may not be fast enough.

The risk of loss in these circumstances lies with the injured applicant, not with the Injuries Board.

Like all institutions, it is insulated from the effects of death.

This writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

The title is an acronym for Fact Based Medicine. (Can there be any other kind?)

We hope our doctors are thoughtful, attentive and kind, but we also expect them to be competent, ie, rational. That’s why we expect them to seek the facts. Before you seek the facts you need to know what facts you are seeking. That applies to the legal industry as much as to the medical profession.

The practice of law is much more a collective effort than medicine is. It cleaves more to convention than medicine does, say.

This writer was in High Court 2 in the Round Hall of the Four Courts a few days ago. The Personal Injuries list was called over. It was a very long list. It featured those personal injuries actions which had now reached their hearing date and in which the parties had arrived in court for trial. But they did not get their trial, most of them. They were, metaphorically, in a traffic jam. Cases were still in the list and being called over that had first appeared a week before; that meant the parties and their witnesses (potentially, if not actually) had been returning again and again to the Four Courts seeking a trial and had been failed again and again. Each succeeding day brought a new cohort of cases into the list. They too, failed to get a hearing and would have to come back the next day, and the next day and so on.

The judge struggled to express what everybody was feeling; that it was time to consider abandoning ship, metaphorically, and cancel the list. But he would not do it, unless the Counsel asked him. He then resiled from this, to laughter, saying it was not a matter where they had a vote.

But of course, they do and should. The courts system would not function without the lawyers. However, the forensic traffic jam was a symptom of another problem; a cumulative failure to settle the cases.

Taking a benign view of politics, this is the kind of problem that prompts Ministers for Justice to commission a Report from the likes of The Committee on Court Practice and Procedure. See the PDF of the Committee’s 29^th Report (dated 2004) HERE- [DOC] CCPP 29th Report - Courts Service

In that Report the Committee remarked;

“At present a very small proportion of personal injuries cases go to trial. However, litigants have the right of access to the courts and the process available should be the dispensing of justice in a speedy, efficient and effective manner.”

And again;

“It… [personal injuries litigation]… is a small proportion of the High Court work. High Court judges are required to hear cases in lists on Personal Injuries, Bail, Bankruptcy, Chancery, Commercial, Common Law Motions Circuit Court Appeals, Family Law, Garda Compensation, Judicial Review, Probate, Proceeds of Crime Act, Asylum, Admiralty, Solicitors Act, Medical Council, Nursing Council, Dental Council, Extradition, European Arrest Warrants, The Hague Convention, The Luxembourg Convention and Crime.”

The Committee failed, among other failures, to look at the implications of the sentence “At present a very small proportion of personal injuries cases go to trial.” The statement is accurate and the credit belongs to the two branches of the legal profession, but those settled cases were not investigated by the Committee. The Committee was to “…examine all aspects of practice and procedure relating to personal injuries litigation and consider whether the present system of practice and pleadings is appropriate to modern personal injuries litigation.”

Surely the criterion of the success or failure of a practice or procedure is that it assist in the process of settlement? If the Committee did not investigate what was good and working in the then current system, how could they be said to have considered “modern personal injuries litigation”. (What is that?)

Then there was the note of regret; “However, litigants have the right of access to the courts…” and the recitation of the various lists, clearly addressed to lay ears. Those lists are not equivalent to each other and some generate vastly more work than others or, conversely, some generate little work.

What is notable is that Reports like this (particularly this one) depart from “initial conditions”. Here, the Minister defined the initial conditions. The Report then recites the then current practices. What is absent is evidence that the Minister’s conditions are pertinent to some real problem or that the current practices are seriously deficient.

We know that the practices and procedures were changed subsequent to the Report.

Now the Personal Injuries List is breaking down.

Don’t expect expressions of regret from any participants, or admissions that the changes for which the Minister was responsible have led to this.