1. I have been injured; will the person who injured me, or his/her insurance company, hasten to fully compensate me?

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 writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

The plural of wig is wigs. The plural of nurse is nurses (not nurse’s); the plural of motor is motors.

The plural of counsel is counsel. (See entry no. 3 HERE). The [non-immigrant] people of Ireland should have no difficulty with this word, having been long acquainted with Our Lady of Good Counsel but they do, because they are also long acquainted with the County Council or the City Council.

There is one other point to be made about counsel. It is the advice you get; it is also the term for the person who gives that advice, or represents you, in the context of a courtroom. To clarify this; it is common that the advice is referred to in lower case and the representative is referred to in title case (Counsel).

So, our learned friends are definitely losing their wigs, (or presenting us with trundling examples of stupidity, otherwise). One influential Irish barrister in the past derided the barrister’s wig as a prophylactic, i.e. a “forensic condom”, but derision is not effective against the Rules Committee of the Superior Courts. This is the body that ensures that Ireland has no provision for launching class actions; it ensures that citizens must have the character of a General U. S. Grant or an Erwin Rommel and the resources of a Denis O’Brien if they wish to vindicate their rights in the face of State power. (See Order 84 Rule 21 of the Rules of the Superior Courts).

Modern newspapers are, or have been, full of Tony Blair. However, the US Blairs are more notable, particularly Montgomery Blair.

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.)

Which of us is happy with our handwriting? Some, no doubt, but for many of us the admirable writing in our school handwriting workbooks is a thing of the past.

[The United States of America produced its Declaration of Independence in cursive script (HERE)]

So it is with other standards. Here in Ireland we call cursive script joined-up-writing and we aspire to that, but we have little tradition of its cousin, joined-up-government.

In Ireland, government must be conducted in accordance with the Irish Constitution and in pursuit of its objectives. One of those objectives is to vindicate the person [or the good name] of the citizen. That means that if a person is injured the State must and will ensure the citizen is compensated by any wrongdoer responsible for the injury.

You would think that this imperative would produce a regime directed to that purpose, but if you did you would be wrong.

Sure, in law a wrongdoer is liable to pay compensation, but Ireland is not anxious to ensure that that happens. If it were it would have introduced a system currently to be found in the United Kingdom. There, an injured person can enter an agreement with a lawyer to pay an enhanced fee for legal services, conditional on the claim being successful [“Conditional Fee Agreement”]. The defendant will then be liable for that fee in the event of success. In short, the UK recognizes that poor claimants are at a disadvantage relative to rich claimants, in legal proceedings.

This is an inherent feature of the previous UK position [and the current Irish one] where everybody is assumed to be a prosperous gentleman [probably Victorian] who pays his lawyer’s bills on a weekly or monthly basis and expects to recover those expenditures from any wrongdoer when he is successful in his claim that his lawyer prosecutes.

That assumed position is unreal. Such prosperous gentlemen are few and far between. Everybody knows this and yet, in Ireland, nothing is done to remedy the situation.

In fact, the opposite has happened. The government established the Personal Injuries Assessment Board [“PIAB”] to assist defendants. No claimant’s lawyer’s fees are payable by the respondent in the PIAB system. PIAB itself assures claimants that they do not need a lawyer to represent them, a claim at once untrue and an insult.

Any intelligent PIAB claimant must engage a lawyer at his or her own expense without any chance of making the defendant wrongdoer assume responsibility for that expense despite the fact that the defendant caused the expense to be accrued.

On top of all of that, in Ireland it is illegal for a lawyer to advertise that he or she will act for a claimant on the basis that the claimant will not have to pay legal fees if the claim is unsuccessful.

All in all, these provisions and arrangements are in direct opposition to the objectives of the Irish Constitution.

The Irish solicitors’ profession seems peopled by rabbits. The Irish Bar is preparing to make submissions relating to the forthcoming IMF/EU diktats. It rolled out the Attorney General in a conference at the weekend just past, to invoke pious words about the need to preserve the missionary-like zeal of “pro bono” barristers. (This writer approves of such barristers, when he can find them.)

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.)

Judge Charleton has criticized the adducing of evidence by (of) “too many experts” in a defective products case.

The report of the judge’s comments indicates that judge assumes that his view is correct, or more accurately, is conventional.

The judge’s view is in fact radical.

In Ireland, the decisions relating to the adducing of evidence in a civil action lie with each of the parties. This is a consequence of the fact that a civil trial in Ireland is a contest; it is not an inquiry.

Consequently, Judge Charleton’s comment is a challenge to that idea, not whether a counsel in one civil action erred on the side of caution and proved (or failed to prove) a matter using a surfeit of expert evidence.

We know this, because there is a time-worn method available to deal with erring counsel; deny his/her client the costs of the excess of evidence, assuming he/she represented the successful party. A judge who shifts a “costs criticism” into the heart of his judgment is either making a category error or is making a policy statement.

Should Ireland commission managed inquires, in civil matters, by the High Court? Should the judge decide what evidence will decide the outcome of such inquiries?

We don’t know. The reason we don’t know is that it has not been considered. The question is not one of fact; it is an issue to be decided by Irish society. Irish society has decided the issue already and that is reflected in the status quo. The status quo is this; a civil trial in Ireland is a contest and counsel for the parties will and does decide what and how much evidence should be adduced in a trial.

Some of us, in Dublin, are buying books now, and connecting with the past as we do so, it feels.

One book to catch my eye is The Checklist Manifesto: How to Get Things Right, by Atul Gawande. My enthusiasm fell away when I found no checklist in the book. My fault; the book is a Manifesto, after all. But should Dr. Gawande not have demonstrated the value of checklists, as opposed to asserting it?

He does refer to the use of checklists in the Warren Buffet Berkshire organization. Now my enthusiasm for checklists began to falter. One of Buffet’s lists asks the researchers to confirm that they have read the footnotes in the latest sets of published accounts of the target company. Hmm.

A checklist is an algorithm; so, too, is a cookery recipe and we all know, or should know, of the value of those.

Lawyers are convinced of the value of checklists, but they are not as centralised as the medical profession is, to get the full benefit of them.

Even so, we should not forget that Taoiseach Brian Cowen and Minister for Finance Brian Lenihan are both lawyers (and it doesn’t get more centralised than where they are) and there is, or was, (this writer thinks) no checklist in the world that would have prevented them from wrecking the Irish economy.

Britain is about to go through one of its periodic episodes of legal dyspepsia. HERE is a report from the “Telegraph”. It suggests that the money to pay a successful party’s legal costs, following litigation, should, or may, be paid by the successful party from the compensation awarded in the litigation.

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…

Any solicitor should reasonably be glum now. No office will escape the consequences of Ireland’s financial troubles and, ignoring runes, we need only read the recent record of our neighbour, the UK, to see what those consequences might be.

Let’s start with the straightforward stuff; Thomas McGoldrick, a solicitor, stole £1.25 million from a client left paralysed (from the neck down) by a traffic accident. The judge sentenced him to ten years in jail. McGoldrick’s firm acted for the client in his personal injury action. McGoldrick met the client once and when the compensation was lodged in the client account McGoldrick treated it as his own, driving a Mercedes and Jaguar with personalised number plates and sending his children to expensive prep schools.

In the UK, as in Ireland, theft like this is, effectively, a charge on all solicitors; the Law Society Compensation Fund has to make good the loss.

Any normal person might go off the rails on hearing news like this. Take Esther Cunningham for example. She was defending her cousin on a dangerous dog prosecution but had to be escorted from court after kissing a solicitor, swearing at an usher and insulting the prosecutor while “fortified” with brandy. To her credit her legal representative said of her; “The forcible kissing of a solicitor is something that has been difficult to accept”. Who, among her colleagues, would not agree?

Distraction, even while remaining on the rails, so to speak, could also be easily foreseen following on such troubles. Consider how readily a solicitor, raffling a house, could forget to get a licence to run a lottery. The then-President of the Law Society , Paul Marsh warned his colleagues against launching prize draws because he feared that, as the recession deepened and house prices continued to fall, more people might be tempted to establish prize draws. He also feared that they could be used to conduct mortgage fraud or for money laundering. He pointed out that anyone found guilty of running an unlawful lottery faces a maximum sentence of 51 weeks in prison and/or a fine of up to £5,000 under the Gambling Act 2005.

One wonders whether Mr. Marsh was not himself distracted. Did he not know what many of his members were then doing? They were bribing people to get work for their firms.
A report described the practice in relation to the “miners’ scandal” in these terms;

“…some law firms charged fees to the miners out of their compensation awards. This “success fee” was often charged on the ground that the miner had been introduced to the solicitor by a claims handling company or trade union that had charged the solicitor to send the case to them.”

Bribing middlemen for work is the first step to full-time, big-time bribery. Get a scruffy office in Tottenham and become a bagman for Halliburton, delivering £100 million in bribes to Nigerian politicians. That’s a business model any Irish property developer would cheerfully take up. In this case it was a solicitor.

Strictly, as a business model it lacks something; the bribes are going in the wrong direction. Christopher Haan, a consultant solicitor knew that. Despite charging his client, Mr Abela £1.4 million in legal fees (on a share purchase), Mr Haan was clandestinely also advising a Mr Baadarani, who was selling his stake in the Italian company to Mr Abela. Mr. Haan got £400,000 from Mr. Baadarani.
“This is not a case of a technical conflict of interest,” Mr Abela’s, counsel told the court, “but of an intentional preferment of one client’s interests over another.”
Mr Haan’s actions, he said, were negligent, deceitful and a breach of contract towards Mr Abela, adding that simultaneously advising the buyer and seller of a company implied fraudulent or negligent misrepresentation.
Mr. Haan may have known what Mr. Seldon, another solicitor, did not know; that you can be pushed into retirement against your will (and will need every cent you can get).

Or, powerful vested interests lodge a complaint with your Regulator and, despite their tendentious objectives (the complainants were the opponents of the solicitor’s clients) you just survive the trial your Regulator puts you through.

Here in Ireland, being a Republic we, in theory, are no respecters of persons. Oops! Not so, perhaps.

In any event Michael Ford a client of Michael Napier, a former President of the Law Society lodged a complaint with the Law Society about Napier. Napier had represented Ford in a long case against Exxon Mobil, but Ford discovered that Napier’s firm had also been acting for Esso, a wholly owned subsidiary of Exxon.

Ford was not pleased about this. How could he now know that Napier did everything he could to vindicate his interests?

The complaint went nowhere fast. Only when it went to the Scottish Legal Complaints Commission did Ford get a hearing. The Commission found that the Law Society’s investigation was a systemic failure.

Too bad.