Insurance has a strange aspect which we often overlook; we are happy that we did not need it.

We do not think that the premia paid year after year to insure our house is wasted money. After all, we do not want our house to burn down; we just want to rebuild and restore it if it does. So, we pay a small sum of money to meet the possibility of having to pay the much larger sum if the house does burn down (or suffer some other form of damage).

Sometimes the question of what is a proportionate sum to pay as a premium to cover the perceived risk has to be publicly determined.

In the UK, unlike Ireland, there is anxiety that justice should be facilitated. By “justice” is meant the ready and easy opportunity to go to court seeking a remedy without being prevented by extraneous causes, like poverty. Poverty is relative; most people in Ireland would consider the costs of a High Court action (or even a Circuit court action) beyond them.

Consequently, the UK authorities have facilitated schemes intended to achieve this end.

One such scheme is to allow lawyers who work on a “no win, no fee” basis to charge a significantly higher fee when they are successful, and provide that the losing party has to pay that higher fee as a matter of course.

Another is to recompense a plaintiff his or her insurance premium for “After The Event” (ATE) insurance. This is insurance taken out to, effectively, help pay for some of the litigation costs of the plaintiff/insured.

Section 29 of the UK Access to Justice Act 1999 provides:

“Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.”

Inevitably, the losing defendants (other insurance companies) took issue with the premia being charged for the ATE.

HERE ‘s the outcome of that dispute.

Britain and Ireland have similar, but different, legal systems. In Britain it is permitted for solicitors and barristers to agree to act for no, or a reduced, fee, conditional on being entitled, on winning the case, to charge the client (and a losing opponent) an enhanced fee (one larger than the norm). This is known as “a conditional fee agreement” (CFA).

This is not possible in Ireland.

In Britain, these CFA arrangements are most common in personal injury claims. In Ireland the principal law applicable to such claims and the terms to be agreed between solicitors and clients is S.I. No. 518/2002 — The Solicitors Acts, 1954 To 2002 Solicitors (Advertising) Regulations, 2002

Under the Regulations it is illegal for a solicitor to advertise “No win, no Fee”. Solicitors are not permitted to calculate their fees by reference to a percentage of the compensation recovered for the client. (Or as the Regulations put it, “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.

Furthermore, not only are solicitors subject to the foregoing restrictions but are also restricted from offering “legal services involving contentious business… at no cost or reduced cost to the client”

Indeed, it is the obligation of a solicitor to give an estimate of the costs of the legal services to the client in writing, at the commencement of the engagement.

Finally, the Regulations provide, inter alia, advertisements shall not “be published in an inappropriate location”.

(We know for sure that the back of a bus is an inappropriate location).

In the UK they purportedly reformed the system of civil justice with the Woolf Report. There is some reason to doubt this.

Now, a debate has started, questioning the complacent view that the reforms were successful.

The debate has the unseemly presence of Lord Woolf in it. It is unseemly for him to “defend” his “reforms”. The subject is too important to be tainted by an effort to defend a personal investment.

However, the debate is a salutary reminder of how far behind we in Ireland are. The UK has a debate; we have nothing.

Instead, we still have a Rules Committee that had to be restrained by the Oireachtas from compelling barristers to wear wigs and that coolly front-loads the costs of litigation on litigants; all without any input into these “ideas” from the profession.

Why do some people respond to social problems by supporting provisions that deny, in effect, the existence of the problem (“right wing”) while others insist on the recognition and resolution, by society, of all problems (“left-wing”).

It is a mystery, but it is rare to find anybody at either end of the spectrum who is a purist. The person of right-wing views tends to be very concerned that the problems of property owners be never denied by society, while sheer fatigue will reduce the enthusiasm of the most radical of left-wingers.

The UK Civil Procedure Rules (“CPR”) contain the averment that their aim, above all, is to deliver justice.

That claim alone is, or should be, sufficient to put one on one’s guard.

Sure enough, see HERE for a complaint at length about the deficiencies of the CPR. It is impressive in its argument from statistics, coupled with direct condemnation of “front-loading” of costs. The latter is of particular interest for Ireland. Only very recently our Rules Committee of the Superior Courts introuduced exactly such a provision. See HERE for my complaint about that change.

Where do these fashions come from? I cannot say myself; what is depressing is the absence of any method of having them reversed easily.

More to the point, there is never established, a feed-back mechanism, to confirm that the change is beneficial.

In Ireland, we lean to the Right (“radical or redundant”) rather than the Left.

In short, we sweep problems under the carpet.

With the Irish economy in retreat (recession), lawyers will still find a need for their services.

In truth, there is probably a large core of business for Irish lawyers, regardless of the state of the economy. (And that takes no account of the possibility of duplicating the activities of Allen & Overy).

The real issue is not the availability of work, but the financing of the work.

Ireland has seriously handicapped its legal profession, relative to the UK. There, it is possible, under Conditional Fee Agreements (“CFAs”), to recover double (say) the standard fee in court taxation if the lawyers have agreed to act on a “no win, no fee” basis.

In Ireland no such official arrangement exists.

Of course the real loser from the State’s failure is the Irish citizen. At very little cost to the State, it could empower victims to defend their interests and vindicate their rights in fields as diverse as defamation and personal injury litigation.

The legal basis, in the UK, for CFAs is s.58 of the Courts and Legal Services Act 1990, as substituted by s.27(1) of the Access to Justice Act 1999, the Conditional Fee Agreements Regulations 2000 (SI 2000 No 692), amended by the Conditional Fee Agreement (Miscellaneous Amendments) Regulations (SI 2003 No 1240) and the Conditional Fee Agreement (Revocation) Regulations 2005 (SI 2005 No 2305).

Under the Regulations, the plaintiff client will become liable for fees only if he/she:

a) fails to co-operate with the legal representative;

b) fails to attend any medical or expert examination or court hearing which the legal representative reasonably requests him to attend;

c) fails to give necessary instructions to the legal representative; or

d) withdraws instructions from the legal representative.

This failure by the Irish State is particularly glaring in the light of the fact that there are, currently, proceedings at hearing, in Dublin, intermittently, which potentially, if not actually, are financed by CFAs.

Those proceedings are the Omagh civil action arising out of the bombing of Omagh.

Why should Omagh be different to Dublin?

It frequently happens that a Plaintiff is driven by necessity to apply for injunctive relief to the court before the trial of the Plaintiff’s action.

Such applications are heard on Motion, grounded by Affidavit. These applications are fraught with stress and uncertainty.

I have adverted HERE and HERE to the the undesirability of deciding on the liability for costs for such applications at the time of the application. Traditionally, the court reserved that decision to the hearing of the action.

This was a fair and sensible attitude. At the full hearing the trial judge would have been presented with, presumably, all the available evidence. The verdict of the trial judge might, or might not, correspond to the outcome of the application for the injunction. In short, the successful party on the application for interlocutory injunction might not be the ultimate successful party at the trial.

In Chieftain Construction & Anor v John Ryan & Ors. [2008] IEHC, Edwards J. refused an injunction to the Plaintiff applicants and invited submissions on the costs of the interlocutory application from the parties.

In his judgement the judge adverted to the difficulties inherent in the court, at an interlocutory application, engaging in a consideration of the relative strengths of the parties’ cases. He said:

The Court is cogniscent that one of the principal arguments against a judge engaging with any question of the strength of the case at the interlocutory stage is that in many cases the evidence is incomplete. There may be conflicts in the evidence that are incapable of resolution on affidavits alone, and which can only be resolved in the course of a plenary hearing where evidence is tested in the crucible of cross examination.”

In the course of this exercise he quoted Laffoy J. in the case of Symonds Cider v. Showerings (Ireland) Limited [1997] 1 I.L.R.M 481 where she stated:

I am satisfied that, having regard to the decision of the Supreme Court in Westman Holdings Ltd v. McCormack, it is not open to this Court, assuming the plaintiff has established that there is a fair and bona fide question to be tried, to express any view on the strength of the contending submissions in this case. In any event, even if it were open to the court at this interlocutory stage to evaluate the likely outcome of the trial, in my view it would be impossible to do so in this matter, which is bristling with difficult issues of fact arising from conflicting affidavit evidence and difficult issues of law.�?

Because of the clarity of the net point on which the Plaintiff’s case rested (in the opinion of the judge), he went on, in the case, to assess the relative strength of the Plaintiff’s case to that of the Defendants.

The unsuccessful Plaintiffs were hit with a double whammy. Their fundamental case was assessed on the basis of affidavit on an interlocutory application and then the question of the payment of costs of the unsuccessful application was tabled for consideration.

In the particular case this might not be unjust. But if such Plaintiffs are wrong, they will, in due course, be brought to book ultimately at trial or by seeking to discontinue (by agreement with the opposing party or the court) on terms.

To deprecate their case and force the issue of the payment of costs on the application seems unnecessarily abrupt.

I have written HERE of the problem posed, in Ireland, by new a High Court rule dealing with the costs of preliminary interlocutory applications.

Compare this harsh provision with the approach of the Court of Appeal in England & Wales HERE where they gave a Protective Costs Order to “Buglife”, a charity to protect invertebrates.

Buglife was trying to restrain development which, as the Court heard, would probably result in two national, 17 regional and 37 local invertebrate extinctions if the development went ahead.

The settled animus of Ireland’s political class towards the eccentric would ensure that nobody in Ireland would adopt the humourous title “Buglife” for their charity and would, through the representatives of that class in the world of Irish law, punish its adoption if it went to court, even in discharge of its laudable purposes.

The new Chairman of the Bar Council must surely remember the events surrounding the introduction of the rules of disclosure of reports in personal injury actions.

They should fortify him in his efforts to have canceled, or substantially amended, the new rule of the Superior Courts in Statutory Instrument No. 12 of 2008 as suggested HERE.

The practicality of changing the effect of Statutory Instrument 12 of 2008 is real and the example is found in the recent past.

The Superior Courts Rules Committee introduced an amendment to the rules in 1997, as set out HERE.

Very promptly, the amendment was revoked and replaced by a new rule as set out HERE. This was discussed in the Supreme Court in Payne v Shovlin [2005] IESC.

The Court accepted that the effect of the 1997 rule on disclosure was too broad and the new, replacement rule was of a narrower ambit.

In short, when the bad effects of a rule or rule change is manifest the Rules Committee is capable of responding positively.

Go to it, Mr. Chairman!

(PS: Issue a new Press Release; your website shows Turlough O’Donnell as the Chairman, according to the latest Press Release on the topic; cancel the old Press Release).

The result of the Bar Council Elections is in (or out).

The new Chairman should immediately address two issues. I referred to one previously HERE (depose the Attorney General, for reasons of self-respect, from his “position” as “leader of the Irish Bar”).

The other is urgent. It is the need to campaign to reverse a new rule of the Superior Courts. The Superior Courts Rules committee has introduced the following paragraph into Order 99, Rule 1 of the Rules of the Superior Courts (S.I. 12 of 2008).

(4A) The High Court or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”;

The effect of this change is to tie the hands of the High Court or the Supreme Court on the issue of the payment of costs on interlocutory applications. Very often their costs are made “costs in the cause”. This means that the responsibility for the payment of the costs will lie with the unsuccessful litigant. Or, the costs are “reserved”. This means that the issue of responsibility for the payment of such costs will, or may, be determined by the trial judge at the hearing of the action.

The effect of the new rule is to favour wealthy litigants by raising the stakes for litigants who are not wealthy.

It is not enough now to be strategically superior; it is essential to be tactically perfect.

I am reminded of the Komodo Dragon. It has toxic saliva so powerful it needs just to strike and bite sufficient to break the skin of its victim, which, fleeing the attack, is followed by the Dragon at a leisurely pace in the certainty that the victim will succumb to the poison (a biological poison) and be eaten by the Dragon, alive.

Should we not prefer people to monsters?

There is need for a new charity to be established in Ireland. It will seek out people suffering personal injury. It will advise that the injured person (“the victim�?) should immediately consult a solicitor to determine whether there is a cause of action arising from the incident in which the victim was injured.

The need for this charity arises from the terms of Section 8 of the Civil Liability and Courts Act 2004.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action may—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action�? means—

(a) the date of accrual of the cause of action, or

(b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed,

whichever occurs later.

Very few people are aware of the Section. It is draconian. It places an onus on a victim of negligence or other wrongdoing to write the required letter to the wrongdoer at a time when most such victims are struggling with the practical consequences of their injury and, often, are still in hospital.

If the letter mistakenly describes “the nature of the wrong�? (what does that mean?) then the victim has failed to comply with the Section. This is a reason for the need for the services of a solicitor to deal with the requirement.

Everybody is presumed to know of the Section. Not to know of it is not “reasonable cause�?. To know it (which is the presumption) and not to write the letter leads to the inference that the victim wished to gain advantage at the expense of the wrongdoer. (It is hard to know what other inference might be drawn. To draw an inference is to follow a mental process that is independent of the actual intention of the victim.)

A failure to write the letter may result in a penalty (possibly a substantial one) being inflicted on the victim. Ordinarily, a successful litigant in a personal injury action is awarded the costs of bringing the action. The Section permits that some or all of the victim’s costs be denied him/her. This is a very heavy penalty. Even in the circumstances of the exercise of a judicial discretion it is hard to see how the Section will avoid being exercised in, objectively, a capricious way.