A US lawyer, from Kentucky, he represented Dred Scott in Scott v Sandford [1857].

Dred Scott was a black slave, married to Harriet and each owned by Major Emerson of the US Army (in the case of Dred, since 1832). Major Emerson had consented to the marriage of Dred and Harriet and had taken them to Illinois and the Wisconsin Territory. In each of these places slavery was prohibited. In 1837 Major Emerson married Eliza Sanford. The Emersons and the Scotts moved in accordance with Major Emerson’s army assignments and the Scotts were in Missouri when Major Emerson died, his wife inheriting his estate, including Dred Scott.

Dred Scott offered to buy his freedom from Mrs. Emerson but she refused and in 1846 Dred Scott sued her, claiming he was entitled to his freedom. He ultimately lost in the Missouri Supreme Court, it finding that he should have made his claim while he was in the free territories of Illinois and the Wisconsin Territory.

Dred tried again, in 1853, in Federal court. The defendant was the then executor of Major Emerson’s estate, John Sanford. Ultimately, represented by Montgomery Blair, Dred Scott lost again in the US Supreme Court, (the court mis-spelling Sanford’s name as “Sandford”). The majority on the court denied that Dred Scott was a citizen of the US and therefore the US Supreme court lacked jurisdiction over his claims. It found that the applicable law was that of Missouri, in which Dred Scott was a slave.

The consequences of the decision were very far-reaching. There was an immediate financial upheaval; the possibility that the Southern states could expand slavery into the territories disrupted a political balance between the North and the South and led to the US Civil War.

During the war Montgomery Blair served in the Lincoln cabinet, retiring in 1864 as part of a deal to stall a Fremont candidacy for President, leaving  the way open for Lincoln to seek a second term. Prior to that, Blair advocated the freeing of black slaves to undermine the power of the secessionists, a course followed by Lincoln in due course.

Like many lawyers, Mr. Blair’s representation of his client, Dred Scott, was not for money but from conviction.

As for Eliza Sanford, she learned there are some offers you should not refuse, even if you can. (She had gone to live in Massachusetts before the Supreme court decision and slavery was not permitted there. Massachusetts was a Union state in the war.)

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?

Taken literally, we can confidently say that it is a universal social principle that compensation be paid where loss is suffered and the liability to pay for that loss lies with someone other than the victim.

This formulation is very wide; it will cover cases of injury arising from negligence, say, (See HERE for a treatment of Tort law in common law jurisdictions) but also claims for indemnity under an insurance contract.

The principle is not undermined by individual failures in making payment.

Taken with the provisions of domestic law a regional example of that universal principle is to be found in the European Convention on Human Rights (Article 6).

We are now, unfortunately, familiar with some compensation principles which, by arcane means, apply when banks fail. Certain creditors of such banks are compensated for their losses arising from default. The compensation is so certain that the default is scarcely admitted and is, for practical purposes, imperceptible. By those arcane means the liability to pay the compensation is passed to the citizens of the country responsible for supervising the failed bank. (The arcane means are not legally binding means).

It was always clear that the phrase “compo culture” was not an attempt to deny any compensation to any and all claimants; it was directed against one small class of persons, those persons who had been personally injured by negligence or breach of statutory duty. In effect, it was a brazen effort, if taken literally, to repudiate the obligation on wrongdoers of remedying the losses they had inflicted on others.

Life is complicated; consequently it has come about that the liability to pay compensation for personal injury frequently rests on both a liability in negligence and a liability under a contract of insurance. We see this in Domican v AXA Insurance Ltd. [IEHC] 2007 where the judge remarked that the plaintiff and the defendant had a relationship with each other (arising from the fact that the defendant had agreed to insure and indemnify a person whom the plaintiff claimed had injured him through negligence). In the UK that relationship is expressed in a civilized way in the Third Parties (Rights Against Insurers) Act 2010.

Ireland has no such legislation (and no proposals to remedy the situation). The UK made such provision as far back as 1933.

The Irish State has a very poor record in defending the constitutional right to compensation for personal injury. That should come as no surprise when we reflect on the reason why the Minister for Defence (and Ireland consequently) became liable to compensate soldiers in what was known as “the Army deafness cases”. A civil servant had consciously decided not to make provision to protect the hearing of soldiers from exposure to loud and damaging noise. That decision was recorded and the record was obtained by the claimant soldiers, all of whom could show they suffered hearing loss or damage following that decision. (Even without the decision the State would have been liable; it was not a novelty that loud noise is dangerous). The reason for the poor record is straightforward; Ireland clearly has (or had) a very poor quality of civil servant and politician. (In the Irish Times of 11^th December 1997 a headline read; “Smith says deafness claims are wrong and immoral”. Smith was the Minister for Defence.)

It is generous to say Ireland’s record is poor on this issue. Ireland is malevolent on the point. See HERE and HERE for this writer’s opinions.

The Law Society of Ireland, however, is wasting energy on the SMDF. More importantly it appears to be ignoring the need to prepare for the IMF/EU issues.

What are they? Because the IMF is busy and not often in Ireland, it, of necessity, has to find available domestic criticism of solicitors as ammunition to fire off. They believe they have it in the report of the Competition Authority of December 2006 “Competition in Professional Services; Solicitors & Barristers”.

The good news for the Law Society is that the IMF/EU ammunition is, in every sense, shoddy. (“Shoddy” was a cloth material for army uniforms for the Union soldiers in the American civil war; think of the fluff from the filter of your tumble drier and make it on an industrial scale. Now shape it into a garment. Now, send its wearer into the rainy winter).

At paragraph 5.274 it states the following;

“In seeking to limit excessive and costly litigation in relation to personal injuries, the regulations carry the risk of overly restricting advertising for other legal services. Other measures have recently been introduced in relation to personal injury claims, such as the Personal Injuries Assessment Board (PIAB) and the Civil Liability and Courts Act 2004, both of which also seek to control unnecessary and costly litigation, and consequently there is less need to rely on advertising restrictions as a means to limit personal injury litigation.”

This farrago of bad ideas indicates this; we are likely going to find ourselves looking at solicitors’ advertisements on the backs of busses.

OK, so what? So this; the IMF/EU nostrums will carry an outrageous agenda, as expressed in paragraph 5.274, that victims of personal injury should be hindered in the search for justice (a policy already established).

That is the point of attack the Law Society should be focusing on. It is incapable of doing so.

(The Maya independently invented the wheel, but could find no use for it.)

Counsel: “That’s your opinion, judge”.

Judge: “Yes, it is.”

It was a moment of witless insolence. The judge had rejected Counsel’s submissions; Counsel disparaged the rejection by denigrating it as “opinion”.

He was wrong on many fronts.

(1) When you have lost, you have lost.

(2) When you are in a hole, stop digging.

(3) “Opinion” is all we have.

Plato confronted this issue; he opposed objective knowledge and opinion. Presumably this is the basis for the terms of Section 39 of the Broadcasting Act 2009.

Section 39 (1) (a) provides;

“Every broadcaster shall ensure that- “… all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views.”

This is nonsense.

All “news” is subjective; that is, a matter of, or expression of, opinion. It has been selected; it has been expressed in words or images, which have to be selected.

What is probably being addressed is “style” or, possibly, fairness. In short, a finding of breach should made by a literary critic or an artist, not by a judge.

That implies that the wrongful act of a broadcaster is not the promulgation of “his” opinion, but the suppression of alternative views. This is a difficult problem. There are views that ought not to be expressed, if not suppressed. We see that in the public burning of a Koran in the USA.

Domestically, what is in issue is this: on what possible moral basis does the Oireachtas claim the right to restrict the public expression of opinion?

We see another, less sub rosa instance of this in Section 16 (2) of the Legal Services Ombudsman Act 2009, which states;

“The Legal Services Ombudsman when giving evidence under this section shall not question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such policy.”

The Ombudsman’s evidence will be like a doughnut; it will have a lot missing.

PS. Judicial restraint is a requirement of the job. See HERE.

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…

The scandal involved the deliberate collection, by Google, of wi-fi data, through its Street View vehicles. Google Street View is part of Google Maps and Google Earth. It uses adapted vehicles (mostly cars) to travel through public locations in at least thirty countries in the world. The vehicles have cameras to record a 360 degree view of each location.

I saw one in Dublin in August.

While it was using the vehicles as a camera platform, Google also used them to secretly collect data passing over wireless networks. That data would be all, or part, of emails, passwords, videos, audio files, documents and network names.

Seemingly, German privacy authorities discovered this Google secret early in 2010 and launched an investigation. A proper investigation would require that the evidence be preserved, would it not? Here’s what Google put up on its website:

“On Friday May 14 the Irish Data Protection Authority asked us to delete the payload data we collected in error in Ireland. We can confirm that all data identified as being from Ireland was deleted over the weekend in the presence of an independent third party. We are reaching out to Data Protection Authorities in the other relevant countries about how to dispose of the remaining data as quickly as possible.”

This was more than the Data Protection Commissioner told us. In fact he told us nothing of the issue. HERE‘s his website.

Google’s reference to the data being “…collected in error…” was disingenuous. The data was collected calculatedly.

Bank robbery is irresistible if the only sanction is that you have to give the money back if you are caught.

Did we actually get our money back?

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.

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.