justice

It is not to be forgotten that Section 4 of the Vagrancy Act 1824 was in regular use by the State until the decision in King -v- The Attorney General [1981] I.R. 233.

Under Section 4 a “suspected person” and a “reputed thief” could be convicted of an offence of, in practice, trespass. Not so, upstanding members of society.

As the court said in King;

…the ingredients of the offence and the mode by which its commission may be proved are so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, soprone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the Judge, so indiscriminately contrived to mark as criminal conduct committed by one person in certain circumstances when the same conduct, when engaged in by another person in similar circumstances, would be free of the taint of criminality, so out of keeping with the basic concept inherent in our legal system that a man may walk abroad in the secure knowledge that he will not be singled out from his fellow-citizens and branded and punished as a criminal unless it has been established beyond reasonable doubt that he has deviated from a clearly prescribed standard of conduct, and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”

What is forgotten (not adverted to at all) is that the impulse to categorise persons so that some are to be victimised and others are not, is general.

For some time now, the Government and its supporters have consciously tried (and succeeded) to demonise plaintiffs in personal injury actions. This process has been underway for a long time. It began at least as far back as the 1980’s with the abolition of the civil jury in Ireland for personal injury actions. Under the civil jury system, a panel of ordinary people decided what the appropriate compensation should be for an injured plaintiff (subject to parameters decided by the Supreme Court).

More recently, the establishment of the Personal Injuries Assessment Board was widely seen as calculated to disadvantage plaintiffs in personal injury cases.

The fullest expression of this demonisation was seen in the Civil Liability and Courts Act 2004. This Act introduced radical new procedures and requirements particular to personal injury actions. Plaintiffs in such actions now had to face more and more obstacles in seeking the delivery of their constitutional right to redress.

This attitude has resulted in the growth of strange ideas. As an example, consider a fatal injury action. (Furey v Fitzpatrick & MIBI IEHC (1998)). The defendant has been negligent and has caused the death of a breadwinner. The dependants are entitled (under the Civil Liability Act 1961) to seek compensation for, among other things, the loss of income resulting to them from the death of their breadwinner.

However, the defendant then discovers something completely irrelevant to the issues in the action; the deceased person was not paying his/her proper taxes, if at all. The defendant now submits to the court that the dependants ought not to be compensated for their loss. (The defendant changes the focus from his/her wrongdoing to the supposed wrongdoing of the deceased person). This chutzpah received a respectful hearing in the High Court, less so, in another case, in the Supreme Court, but that it was given an outing at all is a warning of the ease with which what is called “the legal climate” can be used to ride roughshod over the rights of people who, inevitabley, are all alone when they confront their opponents, where the opponents have laid the ground for the battle long before they meet the plaintiff.

There are many important issues which are never discussed on doorsteps with political candidates at election time, but ought to be.

The Irish Independent has a story HERE about documents and the difficulties with them.

I have written about the difficulties over documents previously HERE and HERE and HERE.

The Independent’s view about difficulties are not exactly the difficulties I have addressed, and of course, one should take what is printed in newspapers with a pinch of salt.

Nevertheless, what about the Independent story?

Well, it says there are legal issues arising in the review by Mr. Appleby the Director of Corporate Enforcement of documents from Anglo Irish Bank Corporation, but identifies only one; the privilege attaching to legal advice. It hints that the documents containing such advice may be inadmissible in any future criminal (or civil?) trials.

This may be true, but those documents must be relatively very few. In addition, if the “advice” is in fact correspondence between conspirators, the fact that one of the conspirators is a lawyer is not a bar to the introduction of the document in evidence against all the conspirators, including and particularly, the lawyer.

One sentence…

“Officials from the director’s office are currently working through the seized material with the bank’s legal advisors to see what documents can be used for the purpose of the investigation.”

…is of particular interest. I have never encountered a criminal investigation where the agents of the suspect debated the quality or admissibility of the evidence with the investigators, if that is what the newspaper is reporting as happening here.

I suspect the Bank’s lawyers are arguing against admissibility (and for privilege?) rather than assisting in the search for evidence.

If so, that would be the norm, (in civil proceedings) but it should not be the norm.

In Ireland, until 1999 it was the duty of lawyers, in litigation, to facilitate their client to make disclosure, on affidavit, to the opponent, of all relevant documents helping or hindering the case of the client.

The Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) put a stop to all that. Henceforth, a litigant was obliged to identify, specifically or generally, the documents it was believed the opponent had which helped the litigant and/or which hindered the opponent, and to show that it needed those documents.

In practice this is a nonsense.

It makes the delivery of justice turn on the quality of guesswork of the applicant litigant. It opens the applicant to derision and obloquy for coming to court and seemingly “fishing” for documents.

Possibly the Statutory Instrument was intended to address a problem now being encountered by Mr. Appleby; too many documents. What judge would want to preside over a trial with too many documents in as evidence? It would be right to cut down on the volume of documents in any trial, particularly if they are not relevant.

But few legal proceedings are like Mr. Appleby’s case, if there is one, and, of course, Mr. Appleby’s case is not yet a civil action. Even if it turns out to be a civil action, Mr. Appleby will, unlike ordinary litigants, have had the opportunity of eliminating the guesswork from his request for documents when he asks Anglo Irish Bank Corporation to swear an affidavit of discovery.

The judges of the United Kingdom, no more than here, also wanted to avoid trials with too many bits of paper to be examined. To achieve this end, they introduced changes to their rules of court. (Actually they turned their entire rule book inside out, but that’s another story).

In the UK, a litigant is entitled to receive from the other party, “standard” discovery. The lawyer for the party making standard discovery is obliged to facilitate the client to make disclosure, on affidavit, to the opponent, of all relevant documents, coming readily to mind or easily found, which helps or hinders the case of the client.

If the circumstances of the case require more extensive discovery, it is open to the applicant for discovery to apply to court to get further and better discovery. The burden of showing that this is warranted will be on the applicant, but this situation is substantially different to that of an applicant in Ireland, not least because of different attitudes.

The UK rules state that the purpose of the rules are to do justice; the Irish rules do not state this. Instead, it is taken as a given that the courts would not seek any other outcome except justice. Arguably, the latter position is better than the former; after all, who would trust someone who protests that what they are doing is, always, seeking justice?

But the UK position should be seen in the light of “pre-trial discovery”. In the UK it is possible to get a court order for disclosure of documents, without (and usually, before) issuing proceedings. This is not possible in Ireland.

With hindsight, the volume of documents may not have been the problem it was perceived to have been. Most cases, particularly claims for compensation for personal injury, require little or no work to make adequate and proper discovery. The paper burden is often slight.

In addition, in cases involving greater volumes of discovery, the modern computer and the modern copier, having generated the volumes of paper, can, and do, assist in managing that paper.

Ironically, full and proper discovery is likely to relieve a court of having to read any of the discovered documents; it is easier to settle cases where the parties have not achieved unfair advantage as they enter upon the trial stage of the proceedings.

A settled case is a good case from a judge’s point of view.

Here in Ireland we have invented a peculiar process (in Statutory Instrument 233 of 1999) to assist parties to litigation to have justice in their case.

Firstly, on principle, we conditionally deny them access to the relevant documentary evidence in the possession of the other party.

They can have that access on this condition; they must justify the request for access.

Clearly, “relevance” is not an admissible justification, otherwise the request would be;

Please discover relevant documents to the Plaintiff”.

In England and Wales, by contrast, that, in effect, is the request (under Civil Procedure Rule 31.5). Furthermore, although the concept of limiting discovery is admitted, it is the person of whom discovery is required who must justify any claimed limitation.

CPR defines “Standard Disclosure”:

Standard disclosure requires a party to disclose only –

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.”

In Ireland, it is the person making the request who must justify it. In principle, that would be fine, if the process was not emptied of intellectual content by requiring that person to justify the request, not by relevance (that, bizarrely, is assumed) but by necessity.

Necessity implies that the case will be lost if the documents are not discovered. That is an extreme case or position. It could happen, but if it did only the party holding the document (undiscovered) would ever know it.

To know of a document to the extent of needing it, is to know it intimately. Only the party holding the document can be intimate with the document.

In short, to show necessity is an unattainable standard.

It is high time we went back to 1998.

“I was there!”

Sometimes, hopefully not. Avoid the car crashes of life, if you can; car crashes as described HERE
.
The “car crashes” arose because of the poor quality of judgments in three cases, English, Withers and Verrechia.

In English, the court of appeal remarked:

The Judge could have explained the issue and his reasoning process in comparatively few words. It is regrettable that he did not do so and that it has taken the appellate process and the assistance of counsel who appeared at the trial to enable us to follow the Judge’s reasoning. Having done so we conclude that this appeal must be dismissed.”

In Withers the court remarked:

We turn to the section of the judgment dealing with causation. We have not found this easy to analyse. We have been able to identify a number of different reasons for the Judge’s conclusions, but these are not set out in logical order; they are intertwined. So far as the expert evidence is concerned, the Judge has attempted to summarise the technical issues, but on occasion fallen between two stools, so that the relevance of the facts set out in the judgment to the particular issue is incomprehensible.”

In Verrechia the court, although finding, substantially in favour of the Plaintiff did not award him his costs. It gave no reasons for this course.

Matters were in each case made more difficult by the decision of the court of appeal in concluding that, while the judgments were deficient, it was possible to discover what the reasons for the judgment were in each case. Consequently, the appellants although aggrieved at the absence of reasons in the original judgments did not win on appeal and lost more money on legal costs.

In Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. a judge opined that the Rules of the Superior Courts should be changed to, effectively, reverse the burden on applications for Discovery in the Superior courts.

Within the year, that was done by the introduction of Statutory Instrument No. 233 of 1999 (Rules of the Superior Courts (No. 2) (Discovery)).

In 2005 the Law Reform Commission (LRC 76-2005) recommended the following:

2. The Commission recommends that a formal procedural structure to be set out in Rules of Court be introduced to deal with instances of multi-party litigation.

3. The Commission recommends that reform of current procedures to deal with multi-party litigation should be based on the following principles: procedural fairness for the plaintiff and defendant; procedural efficiency; and access to justice.

4. The Commission recommends that the proposed procedure for dealing with multi-part litigation shall be called a Multi-Party Action (MPA).

To date, nothing has happened.

A recommendation from the Law Reform Commission carries only moral or intellectual authority. In the absence of political leadership (or judicial muscle, which is the same thing), it is possible to ignore the work of the Commission.

A Multi-Party Action (MPA) would permit the taking of representative legal proceedings where large numbers of persons had suffered from, effectively, the one wrong. The class of wronged persons would be the beneficiaries of the judgment and the judgment would reflect the totality of the loss of the class.

Currently there is no procedure to achieve this result. This state of affairs is favourable to wrongdoers, especially corporate wrongdoers. To permit class actions is to admit that, often, individuals can have a reasonable prospect of justice against a modern corporation, or the state, only through the action of a collective.

It may be that to permit the introduction of class actions is in opposition to the zeitgeist in Ireland.

That zeitgeist is expressed in the benefits conferred on corporate defendants and the state by Statutory Instrument No. 233 of 1999.

It is to defendants of that ilk that the current rules on discovery are of benefit. They are the paradigm producers of paper, paper which can be evidence, and often the only evidence, of wrongdoing by the corporate defendant.

Undoubtedly, the rules relating to discovery will require to be re-visited to allow MPAs to function correctly.

It is far from obvious what money is.

That the price of gold has risen to an all-time high is evidence of this.

Of what real value is a piece of gold? It has some industrial use, but not much.
It endures over time, but basalt does likewise and, indeed, in the context of a human lifetime the endurance of gold is nothing outstanding; it shares that property with too many other substances. Why should it increase in value relative to any or all national currencies, as it has done?

It is in fact a reference point; the currencies have fallen in value relative to it.

Probably money is an economic notion more than a legal one. That notion is subject to change; consider e-money.
E-money can be encountered in a chip card which has been “loaded�? with “value�? and which can be used to discharge an obligation, limited to the value in the card. The possession of the card is sufficient to get the value of it. Significantly, the State need not, and usually does not, have any involvement in such e-money.

One theory of money, “fiat money�?, bases it on the State control of the monetary system and the issuing of notes and coinage. “Nominalism�? is an essential element of the State theory of money. Nominalism was recognized by Aristotle in the Nichomachean Ethics;

… money has been introduced by convention as a kind of substitute for a need or demand … its value is derived not from nature but from law, and can be altered or abolished at will�?.

It is a principle of Irish (and UK) law that the purpose of the award of compensation by the courts is to, insofar as money can, place the injured party in the same position as if he/she had not been injured.

The State theory of money is, potentially, at odds with that principle because nominalism disregards everything save the attributed value to the currency or State “unit of account�?. Nominalism disregards the changing value of the currency. It takes no account of inflation or depreciation.

The compensation principle is an expression of another principle; the need to do justice. The acceptance of Nominalism is, when it comes to compensation for injury, a breach of the requirement to do justice.

Unadjusted money value may in a period of inflation greatly benefit a wrongdoer. The wrongdoer may deprive a victim of value but, due to the effects of inflation, ultimately be obliged only to make restitution of something of lesser value than the benefit he/she gained.

The Book of Quantum of the Personal Injuries Assessment Board has a similar effect.
It sets out “values�? for some types of personal injury and in doing so clearly accepts the State theory of money and inherently accepts the principle of nominalism. In truth, the “values�? in the Book of Quantum are not fixed values; they change to a greater or lesser degree and the underlying trend historically is to have them depreciate in value, relative to everything other than the attributed value of the currency.

The UK courts have avoided the problem by affirming that the “value�? at the date of judgment is the appropriate value to determine proper compensation – Ascot Midland Baptist (Trust) Association v Bermingham Corporation (1970) AC 874. This approach involves taking account the value of the money; it takes account of the effect of inflation. A Book of Quantum does not.

It is worth noting that the UK Law Commission rejected the idea of the establishment of a “Compensation Advisory Board�? i.e. a UK PIAB.

It would be wrong to say that the Irish legal profession (barristers) are interested in ideas. (Solicitors would never have it said of them at all). This is not to say that they, some of them, are not interested in some ideas. The idea of “justice” springs to mind as an example. But that is the very point of failure of those others not so interested. “Idea” is defined succinctly in my “Fontana Dictionary of Modern Thought” (2nd Ed.) as “The smallest unit of thought or meaning, the elementary constituent of beliefs or assertions”. This post will assume “justice” is an “idea”.

For cultural reasons, in Ireland justice is what a system of law is reputedly about, if we understand “justice” to be law as integrity.

We would not expect to find (we could be surprised) many defenders, in Ireland, of Judge Posner’s point of view.

But it is difficult not to feel that the current Irish practice on civil discovery is expressive, somehow, of an idea proper to Judge Posner, that is, an overemphasis on the economics of litigation (a selective overemphasis, it should be said, where actual judicial practice is replete with references back down to inferior courts following reversal of the original judgment).

The reputed inspiration for the current Irish practice on discovery (the rules for which practice are found in Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) was Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. in which a judge suggested the introduction of changes to the Rules of the Superior Courts in relation to discovery.

The new rules introduced an obligation, in seeking discovery to write to the opponent requesting voluntary discovery; the letter must specify the precise categories of documents required to be discovered and give reasons why those categories should be discovered.

In default of agreement, the applicant must apply to the court for an order for discovery on affidavit and aver, in the affidavit, the belief of the deponent of the necessity for the discovery, as previously set out in the letter to the opponent, and assert, on oath, the validity of the reasons for discovery of the stipulated categories.

Prior to the introduction of Statutory Instrument No. 233 of 1999, the lawyers for a litigant, required to swear an affidavit of discovery, encountered a mild dilemma; they could not impose on the opponent their client’s view of the issues in the litigation and the relevance or otherwise of any particular document to those issues. They had to adopt a broad view of relevance; it had to extend to a view which the opponent might take or hold. The deponent had to depose to such documents as were arguably relevant even if those documents damaged the case of the deponent (of course, if the document damaged the deponent’s case, it was relevant.)

Currently, it is the applicant who must establish relevance and necessity. Significantly, that burden must be discharged without the benefit of knowing what documents the opponent has let alone having inspected the opponent’s documents.

The result is to launch the applicant into an abstract exercise where he/she claims relevance and necessity without being in a position to actually prove what is averred. The best that can be hoped for is to point to some category of document, the relevance of which to the issues in the litigation, accords with the prior view of the judicial authority charged with deciding the application.

This process of voluntary request followed by application to court can be time consuming. It certainly delays the trial of the matter, but not by much more than the preceding process of discovery.

The process has one purpose; to limit the access of the applicant to the documents in the possession of the opponent.

As an idea it has severe limitations if the overriding objective of litigation is to do justice. Indeed, it is diametrically in opposition to the “justice” objective, if justice is law as integrity and not some lesser good.

Of course it is true that many documents are discovered in litigation, the need for which was dubious, but that is hardly an argument for limiting every litigant to a regime as conceived and embodied in Statutory Instrument No. 233 of 1999.

Put another way, the circumstances provoking the judge in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. amounted to an attempt to make a principle of what was only “anecdotal evidence”.

That some members of the Irish High Court currently make orders for the provision of, effectively, “general discovery” is superior anecdotal evidence to the rumination delivered in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. They prefer to do justice than to respect a dubious proposition simply because it is in a statutory instrument.