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.

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 (21/4/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.
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. Judge McKechnie reserved judgment on those issues before the Court.
5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.
6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.
7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.
8. On 21st April 2010 Judge McKechnie informed Counsel for the Applicant and the State that he intended to deliver his judgment on 30th April 2010.

This blog has not been silent on negligence by auditors. See HERE and HERE and a suggested remedy to deal with major frauds HERE.

Every audit will follow a plan. If there is no plan, that’s evidence of negligence. The plan will show whether or not the auditor did his/her job properly. Of course if the “auditee” posts sudden enormous losses, that is evidence that there was a major problem in the auditee. Why did the audit not pick up those losses?

A profitable area for examination would the valuations of assets furnished to the auditee. Those valuations may have been provided by “independent” agents (auctioneers), commissioned either by the auditee or a third party. If those valuations were radically wrong that is a basis for litigation against the valuer to recover the loss arising from the deal or property which was the subject of the negligent valuation.

However, an auditor is obliged to take account of the possibility of fraud. Just because a valuation is on a file from an “independent” agent the auditor is not relieved of his/her obligation to consider whether the accounts show a true and fair view of the fiinances of the entity being audited. The fraud may be in the valuations.

Under the Prosecution of Offences Act 1974 most criminal prosecutions are in the charge of the Director of Public Prosecutions (“DPP”). Some offences are assigned to other legal persons (e.g. Government Ministers) for processing in prosecution by the statute under which they are created.

In fact most criminal prosecutions are brought by members of the Garda Siochana in the name of the DPP.

Before the 1974 act the prosecutor was the Attorney General. Consequently, it was, before 1974, a social fiction imposed on the nation that the decision to prosecute or not to prosecute was taken by the Attorney General without regard for the fact that he was a highly politicised figure, held his post at the behest of the Taoiseach and was the confidante and counsellor of the Governement and its members.

The DPP has no role in the investigation of crime. He (or she) receives a file from the Garda Siochana. The file contains the available evidence. The DPP decides, on the evidence in the file, to prosecute or not to prosecute and whether to prosecute on indictment (in the Circuit Court or Central Criminal Court) or summarily (in the District Court).

Prosecutions on indictment are “contracted out” to barristers in private practice. It is a valuable connection to be on the panel for work coming from the DPP.

Ideally, such a person would have considerable experience in criminal cases. That experience can be gained only when working in defence of prosecutions (otherwise the prosecution of offences would be placed in the hands of inexperienced practitioners and that, it is submitted, ought not to happen).

Experience, it is hoped, should dampen zealotry. It is not the job of a prosecutor to “win”, but to facilitate in doing justice. The steady presentation of the available evidence is the job of the prosecutor. That evidence must be such that there is left no reasonable doubt as to the guilt of the defendant.

In fact, the DPP has issued “Guidelines for Prosecutors”. stressing the need for the prosecutor to act honestly, fairly, impartially and objectively. The Guidelines enjoin the prosecutors to;

“(k) carry out their functions honestly, fairly,
consistently impartially and objectively
and without fear, favour, bias or prejudice;”

This is fine in theory, but the decision to prosecute is often made in circumstances where the complainant, sometimes inevitably, has a private grudge against the accused. It is, in such circumstances more important than ever that the circumstances in which the prosecutor got his or her experience qualifying him or her to get work from the State, should have no bearing on whether the private grudge can be advanced at the expense of the public purse and at no risk to the complainant and great risk to the accused.

Digital Rights Update

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 (25/3/2010)

1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.

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. Judge McKechnie reserved judgment on those issues before the Court.

5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.

6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.

7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.

There is an argument to be made that the broad statement in the blog post “Slip and Fall” acknowledging impunity for public authorities for non-feasance is wrong.

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.

The Courts Service has issued information on what it means to go to court as a witness.

Good luck to them.

It’s a pity they don’t seem to have done the same for parties to litigation.

Given that they are close to the persons who make up the Rules Committee of the Superior Courts, they will be unlikely, currently or in the future, to direct any criticism or complaint at the work of the Committee.

The Rules determine what the experience of going to court will be like.

The Committee, in effect, makes the Rules of the Superior Courts; the Minister for Justice, Equality and Law Reform has a nominal role but he, I venture, is busy elsewhere when the Rules get changed. (I could be wrong; perhaps it is a State secret, and the Committee does the bidding of the Minister).

In any event, the Courts Service will not be looking askance at any practice or procedure under the Rules.

The Committee is one example of bodies that, in effect, make and promulgate law. The Rules are published in the form of Statutory Instruments. Statutory Instruments are generally seen as “secondary legislation”. “Primary legislation” is to be found in the Acts of the Oireachtas. The Acts often make provision for detailed regulations to be made, “fleshing out” the bones of the particular Act. To be lawful the “regulations” must not go beyond the terms of the Act; they must express the “policies and purposes” of the Act.

The reason for this lies in the Constitution. Only the Oireachtas has the power to make law. Nevertheless, there are on occasion instances where “secondary legislation” is in fact “primary legislation”. Regulations made under the European Communities Act 1972 (as amended) have this status.

Most “secondary legislation” takes the form of a statutory instrument.

The European Communities Act 1972 aside, “ordinary” statutory instruments become law after, notionally, having been laid before the Houses of the Oireachtas.

This is an antiquated procedure to give the validity or endorsement of the Oireachtas to the instrument. Given the fact that the Executive dominates the Oireachtas with regard to primary legislation, the idea that the Oireachtas might even notice the statutory instrument being “laid” is a delusion.

Consequently, a vast body of law is promulgated every year and is open to challenge, in effect, only by Judicial Review proceedings in court.

FLAC has just issued a condemnation of the fact that, in Ireland, access to justice is denied many due to lack of resources. Free legal aid is available only to a limited number of people and for a limited number of issues.

Challenging the State in Judicial Review (particularly the Rules Committee of the Superior Courts) is definitely, practically, off that list of issues.

“Continuous Professional Development” (CPD) is an idea with a banal element. It behooves everybody to stay on top of their job, and to express that in jargon is to suggest that the work of some people is beyond accountability; otherwise, why the need to nudge them to competence?

Of course we know the work of some people is beyond accountability, but that is for another day and another subject.

The Government’s new Bill on “Surveillance” is certainly a necessary topic for a CPD seminar, not least in that the Minister for Justice Equality and Law Reform, in announcing it to the media, laconically, but defiantly, remarked that it would cause upset in “human rights quarters” (or words to the same effect).

Now, to whom was he referring? We can only say with confidence that he was not referring to the Government: (the Bill is a collective product of Government, not the work of the Minister).

Implicitly he was referring to the judiciary. Each judge in Ireland is sworn (and has sworn) to defend, protect and vindicate human rights. The Minister has given clear warning that the Government’s Bill is calculated to injure, in some way, human rights in Ireland.

Keeping that in mind, it would be naïve to think that breaches of human rights under this Bill will be confined to some areas of County Limerick. No, we may expect the breaches, of which the Minister warns, to occur across the country.

So, the CPD seminar or seminars will have to cater to professionals in every county in the country. Bring it on.

Hopefully, the Government’s vandalism will run up against systemic opposition; senior Gardai are currently attending countrywide seminars on the application of human rights in policing. Perhaps the things they learn (but there will always be dunces) will permit them to do their jobs correctly and not as the latest political lifebelt dictates.

If the risks of litigation were equivalent to the risks of betting on this year’s Aintree Grand National, with Mon Mome winning at 100/1 nobody would dream of going to court. Luckily, the risks are lower, or can be made to be lower.

Nevertheless, the risks are high, given the unavoidable costs. Those costs are particularly high in Ireland. We have a Criminal legal aid scheme which works reasonably well; we have a Legal Aid Board which directs funding, essentially, to Family Law litigants.

And that’s it.

Neither the Government nor the Rules Committee of the Superior Courts have ever shown the slightest interest in facilitating litigation. In fact, the Government has positively legislated to obstruct and undermine personal litigants (as opposed to corporate litigants) from vindicating attacks on their rights or entitlements.

In the UK, if lawyers agree to work for a litigant, conditional on winning to get paid, they are, in law, entitled to get paid a premium on their fees for taking the chance of not getting paid. These agreements are known as Conditional Fee Agreements. In Ireland, such an agreement would be probably illegal and would possibly result in a failure to recover any fees for the lawyer party to the agreement.

Again, in Ireland, the torts of maintenance and champerty are still alive and kicking. Consequently, we are falling further and further behind the UK in many issues relating to legal profession and the practice of law.

See HERE for news from the UK of the timely development of investment opportunities in litigation.

Litigation, whether personal or corporate, is so expensive it behooves a litigant to take whatever steps are available to offset the risks. In the UK, that is now possible.

We, with our Government, will wait a long time for progressive social-minded policies in this area.