No, they will not. This is human nature and also implied in the social arrangements under which we live.

2. Will the Injuries Board ensure that my interests are fully looked after?

No, it will not. It has a limited focus. It only addresses one question; the level of compensation the injured person ought to get. It does little to ensure that you will actually get your compensation.

3.         How can that be?

An injured person will get nothing unless he/she can prove, if necessary, that some other person has been at fault and that the injury results from that fault. The Injuries Board expressly excludes consideration of fault.

4.         Surely that’s a good thing?

Yes, if the person who injured you expressly admits the fault.

5.         Will that happen in the Injuries Board system?

No, it never comes up for mention.

4.         Who will look after my interests, then?

You will.

5.         How do I do that?

By fully understanding what is implied in the Injuries Board system.

6.         What is implied in the Injuries Board system?

The Injuries Board system exists to ensure that any legal costs incurred by you as a result of your injury will be borne by you and not by the person who injured you.

7.         Is that true?

Not completely. That’s how the Injuries Board started out, but it has changed its mind. It now makes an effort to make your opponent pay for your legal representation, or some of it, if you, the injured person, are a vulnerable person.

8. I have been injured. Am I not vulnerable by that fact alone?

No, not in the view of the injuries board. In the view of the person from whom you are trying to extract compensation, or his/her insurance company, yes, you are vulnerable, but that is advantageous to them and they owe you no duty to reduce your vulnerability.

9.         I am inexperienced in these matters. Am I not vulnerable by that fact, then?

No, not in the view of the injuries board.

10.       What is a vulnerable person, in the view of the Injuries Board?

Someone who needs legal advice to make the application to the Injuries Board.

11.       But surely no such advice is necessary?

The Injuries Board thinks it is sometimes. If you are a vulnerable person.

This means that confusion as to who is or is not an employee need not deprive an injured person from securing proper compensation when injured in a workplace.

The employers duty includes ensuring:

That the employer provide employees with the necessary machinery and tools to complete the job. Those tools and machines are to be maintained in a safe condition.

The workplace must be kept in a safe, tidy condition with floors, doors and gates clean and clear and free from hazards.

The employer is vicariously for the negligence of his/her employees, so a worker injured by the negligence of a fellow worker is entitled to compensation from the employer.

Employees working at a height are protected by S. I. No. 318/2006 – Safety, Health and Welfare at Work (Work at Height) Regulations 2006.

These fantasies are overt. We live with others that are covert. I have in mind the continued refusal of the Irish courts to make provision for class actions.

Currently, the courts will only admit of claims from single persons or, exceptionally, groups who have suffered the same damage in the same circumstances. These groups are, in effect, individual litigants who have made their claim in the same proceedings. They will know each other or their lawyer will know each of them in detail.

In effect, the Irish courts are imposing a narrow political and social vision of society on the Irish people. That vision admits as legitimate only the claims of the individual (usually a man). In fact we know very well that society functions through group action and that the groups are often very large.

This attitude by the Irish courts is not exceptional. The EU is toying, again, with the idea of permitting limited class actions in member states. See an earlier post on this HERE.

In the meantime, UK courts have, without significant difficulty, made provision for the bringing of class actions, We see the result of that in the capitulation by Royal Dutch Shell in a class action brought by Leigh Day (solicitors) on behalf of the population of Bodo, a town in Nigeria.

Will Ireland suffer the humiliation of Irish citizens bringing a class action in London for events which happened in Ireland?

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.

The issue is this; at what point and in what circumstances will an alleged injured person (injured in body, property or reputation) be prevented from maintaining legal proceedings, for redress, due to delay in bringing the proceedings? All common law jurisdictions have a system for preventing the bringing of stale claims.

For lawyers, this is dangerous territory. If a lawyer makes a mistake about this issue (by failing to issue proceedings in time, say) it may, by definition, be impossible to rectify the mistake. The consequence of this error will be the loss to the plaintiff client of a chance to litigate the claim in court. The claim will be statute-barred. However, a new claim will then arise; the claim against the lawyer, for the error.

This is bad for the lawyer, but also for the plaintiff. Such a claim, for professional negligence, will not necessarily be as good as the original claim. It is, of course, undesirable from the point of view of the lawyer.

The current law in Ireland fixes different periods of time for the bringing of actions, depending on the nature of the claim (the legal basis for the claim). In addition, the law contains exceptions to the general rule or rules. (The principal exception is that for infants and “persons under a disability”.) Then there are the exceptions to the exceptions. Of course, there is the uncertainty as to who is a person “under a disability”.

The foregoing is enough to show why the territory is dangerous; it is strewn with “landmines” and it is easy to step on them. The Irish Law Reform Commission shares this opinion.

We see this in Griffin v Calally [2008] IEHC. Time was running in that case, the defendant said, having assured the plaintiff that it, the defendant, would not deny liability.

Cautious lawyers would, in these circumstances, adopt the attitude of Nathan Bedford Forrest; “… git there fust with the most men”.

This is in contradiction to current notions of “mediation” and “conciliation”. They are fine ideas, but in their proper place; postponed until after the issue of proceedings.

In such a spirit, can Judge Kelly’s remarks about the lack of a mechanism to recover excess tolls (if such they be) charged on the M1 motorway, fail to provoke the attentions of our benefactor Mr. KenMore?

Once again, the remedy for such social ills is to hand; introduce forms of proceedings in court called Multi-Party Actions. These are commonly called “class actions”. They permit a plaintiff to commence proceedings against a defendant, not just for his/her own benefit, but for the benefit of a class of persons, the plaintiff being just one.

This could be done relatively easily and quickly. The missing ingredient is, and was, political will. Nothing else is missing.

1. Warned Builders of the difficulties clients may present when you seek payment.

2. Warned Builders of the problems inherent in the practice of the client holding “retention money” as a security for the builder fixing any problems arising later.

3. Warned of the difficulties flowing from undertaking building work without a written contract;

4. The problems for clients when builders “buy” a contract and re-negotiate it to their advantage later, after they have started work.

5. Warned again of the difficulties flowing from undertaking building work without a written contract;

Now we write about the steps you must take when you don’t get paid. Most building or engineering contracts will have an Arbitration clause in some form or other. If so, it will be mandatory that the dispute be taken to arbitration. Get the help of a solicitor or a “claims consultant” to draft the papers for the arbitration. Depending on the nature of the dispute it might take a long time to produce workable drafts but it is essential work.

When the identity of the arbitrator is agreed he/she can give directions as to how the parties should proceed. It is wise for claimants to have anticipated the production of workable drafts.

The conduct of an arbitration by the claimant or the respondent is like the conduct of litigation; it needs the services of a litigator.

If a respondent is still trading (not in liquidation) it is open to the claimant to take the claim to arbitration with some prospect of making a recovery.

It must be borne in mind that the reporting of issues like this, in the UK or in Ireland, is always of a low quality. The journalists are invariably fully paid up members of some lobby group or other. The current dominant lobby group in the UK is the Conservative party, the principal party in the UK coalition Government.

Britain and Ireland have similar legal systems. “Similar” implies there are differences, and indeed there are. A very practical difference is the attenuated Irish system of State assistance for civil legal costs, compared with the UK system.

In Ireland, family law aside, there is, effectively, no State assistance to pay for civil legal costs. This means that an Irish resident must find the money to pay for lawyers from his or her own resources. Or, he or she must suffer a possible injustice in the absence of legal advice or representation.

It is worthwhile to contemplate what is meant by the phrase “legal advice”. In practice it might be the equivalent, metaphorically speaking, of a radio conversation from air traffic control to a lay passenger in an aircraft, guiding the passenger in the use of the controls and the method for bringing the aircraft to a safe landing on the runway. The chances of a crash are very high and if a pilot could be delivered to the aircraft it would be better.

Flying an aircraft is a learned skill. It costs money to learn the skill and to keep abreast of developments in aircraft design. In short, if the lives of passengers or the preservation of aircraft or property is a recognised goal it is necessary to make social arrangements to have a system that will produce pilots and pay them to land aircraft. Without that system it would be necessary to restrict or prohibit the use of aircraft.

On this view of matters, the UK favours the use of aircraft (meaning resort to legal principles and vindication of rights); Ireland restricts such use.

The UK, to encourage lawyers to work for plaintiffs who have insufficient funds to pay for personal injury litigation, introduced “conditional fee arrangements”. These are also known as “no win, no fee” agreements. If the plaintiff wins the action the unsuccessful defendant will pay the plaintiff’s lawyers. This alone was not a novelty; it is a principle (usually adhered to) that a losing litigant must indemnify the winning litigant against the winner’s legal costs of the litigation. This principle is intended to suppress unreasonable litigation. (It works, assuming litigants and lawyers are reasonable. Sometimes they are not.) In the UK this was implicitly seen as shifting a social burden (funding the vindication of rights) onto lawyers. For the lawyers this was a voluntary burden and they were only willing to take it up if they were paid for it. The pay was to be in the form of an enhanced fee if they were successful. This was seen as reasonable: they were carrying the costs of unsuccessful cases. The unsuccessful defendant, of course, paid the enhanced fee. This was seen as fair; the defendant could always limit his costs by not litigating. (As a practical matter, it can be always assumed a personal injury plaintiff has suffered a loss. It can also be assumed that the chosen defendant was very closely associated, at least, with that loss).

Ireland has established a very elaborate structure to facilitate some defendants who wish to limit their costs by not litigating; it set up the Personal Injuries Assessment Board. (“PIAB”). This also addresses a “social burden”. For the UK the social burden is the vindication of Plaintiffs’ rights; for Ireland it is the vindication of Defendants’ rights.

This judgment is broadly correct despite readily found exceptions. (Ireland expressly safeguards the rights of injured persons; the UK readily undermines their claims).

The legal system does not exist in a vacuum. It reflects society. It is pointless (and wrong) for a millionaire to sue a homeless person in a dispute about the ownership of a coat. Even if the millionaire is in the right, the cost of the litigation will outweigh the value of the coat. However, nobody (excepting the millionaire) would think it pointless, or wrong, for a homeless person to sue a millionaire about the ownership of a coat.

The UK, formerly, would facilitate a homeless person in those circumstances; Ireland did not and will not. The UK is now proposing that the coat be shared between the homeless person and his/her lawyers, to pay for the cost of the litigation. Now, the value of the coat will again determine whether there is to be a vindication of rights.

Real justice would recognise the inequality of arms in this struggle. The formal equality of litigants is often illusory. Lawyers know this and act accordingly.

So, we are back to the lawyers.

TO BE CONTINUED…

HERE is a post we published then.

It reads:

“Many people have been injured in Ireland on public pavements due to the recent snow and ice. Public pavements are “public” because they have been “taken in charge” by the local authority. (If they are not taken in charge they are private pavements.)
It is settled law in Ireland that a public authority is not liable for damage arising from “non-feasance”. This means that, if the public authority fails to exercise a statutory power, and loss is sustained which would have been avoided if the power had been exercised, the public authority is not accountable in law for that failure.
(This does not mean that public authorities are not liable for all failures. They are liable to the same extent as ordinary persons for failure to act; that means that a Plaintiff must prove a duty of care resting on the public authority and loss arising from breach of the duty or care.)
Consequently, a failure by a local, or other, authority to clear snow and ice from roads or footpaths, generally, is an act of non-feasance and attracts no legal liability.
Private persons (adjoining owners and occupiers) have, generally, no liability in common law to clear public roads or pavements of snow and ice. They may have a particular liability; if they place the snow or ice on the road or pavement, or create it in the first place. These acts would constitute a public nuisance. For instance, if the owner or occupier transfers a snow burden from his premises onto the public pavement, the presence of the snow is not “natural”. It is man-made. The owner or occupier had created the condition. For further instance, if the owner or occupier pours hot water on the pavement to melt ice already there, and the water freezes, the new ice will have been created by the owner or occupier.
If the servants or agents of a public authority create a public nuisance, the authority will be liable on the general principles of nuisance.
In the City of Dublin a particular liability rests on owners and occupiers (including local and public authorities) adjoining public pavements to clear the pavement of snow immediately on the cessation of the snowfall. The liability was created by bye-laws of June1899. The bye-laws do not expressly create an entitlement to compensation for persons injured on such un-cleared pavements, but the courts have consistently interpreted such statutory obligations as creating and conferring such entitlement.
The liability for private roads and pavements will be covered by either or both of contractual duties, if any, and the Occupiers Liability Act 1995.”

Whatever the case, we see it in the EU Commission plan to “give” a class-action procedural right to EU citizens. Mr. Almunia is in charge of this. He says, confusingly, that;

“…only state bodies and certified non-profit organisations would be allowed to bring actions, and that any damages awarded would go entirely to victims and not to the representative entity“

After an interview with Mr. Almunia the Financial Times wrote:

“Another thorny issue is whether to facilitate more private damages actions by the “victims” of competition offences, notably those who suffer from the higher prices imposed by cartels. Mr Almunia’s predecessor, Neelie Kroes, argued that such group actions could be a useful deterrent to illegal price-fixing. But corporate lobbyists warned about the dangers of introducing a US-style “class action” culture and Ms Kroes’ legislative proposals were stillborn.”

So, what’s it to be? A “state body” of the nanny state (headed by Patrick Neary?) or a right to personally litigate wrongdoing by corporate giants?

Of course, this begs the question; why has Ireland not already introduced the right to maintain class actions?

The answer is; they are opposed at a high level.

See our earlier post on the issue HERE.