When President Lincoln visited him in the field, McClellan kept him waiting outside his tent. In discussion later about this slight, Lincoln said he would gladly hold McClellan’s horse [its reins] if it would assist him [McClellan] in the military effort.

McClellan was the weaker of these men and subsequent events showed this; but so too did that slight.

The US civil war was a political struggle first. The Dred Scott case showed this. With that case, in effect, the US Supreme court opened the way for the extension of slavery into the new western territories. The decision undermined what was a political settlement between the slave-owning states and the non-slave-owning states.

It was an aggressive move by the secessionists.

Judges of superior courts need to understand things like this. Consequently they need to be able to decline to adjudicate on a political question and/or underpin a political arrangement, depending on the circumstances.

Ireland subscribes to a major political arrangement, as nominally expressed in the law of contract; people should be and will be held to their agreements.

With exceptions.

We now know that ideas cast in this form and applied to Dred Scott were deficient. Nobody working for Dred Scott asserted his right as a person to be free; they pleaded the law of the Northern States and Territories and the US Constitution to establish his right to be free.

The mode of thought in the law of contract analogous to an appeal to a human right to be free is to distinguish between the form and the substance of an agreement. This is what we do when we speak of “predatory lending”.

It is not a good thing, always, to borrow money. The form of the borrowing arrangement may be, in substance, a plan to take what property the borrower already has, from him/her.

Businesses in the financial industry are obliged to expressly aver that the “product” is suitable for the “customer”. This is an old idea and is part of the law on the sale of goods.

What if a loan is spectacularly unsuitable to the customer? Who, but the lender, in that transaction is best able to know this?

Consequently, financial claims arising in contract do not all deserve to be heard in summary manner in the High court; some should go to plenary hearing with a full examination of the context in which the agreement was concluded.

We hope our doctors are thoughtful, attentive and kind, but we also expect them to be competent, ie, rational. That’s why we expect them to seek the facts. Before you seek the facts you need to know what facts you are seeking. That applies to the legal industry as much as to the medical profession.

The practice of law is much more a collective effort than medicine is. It cleaves more to convention than medicine does, say.

This writer was in High Court 2 in the Round Hall of the Four Courts a few days ago. The Personal Injuries list was called over. It was a very long list. It featured those personal injuries actions which had now reached their hearing date and in which the parties had arrived in court for trial. But they did not get their trial, most of them. They were, metaphorically, in a traffic jam. Cases were still in the list and being called over that had first appeared a week before; that meant the parties and their witnesses (potentially, if not actually) had been returning again and again to the Four Courts seeking a trial and had been failed again and again. Each succeeding day brought a new cohort of cases into the list. They too, failed to get a hearing and would have to come back the next day, and the next day and so on.

The judge struggled to express what everybody was feeling; that it was time to consider abandoning ship, metaphorically, and cancel the list. But he would not do it, unless the Counsel asked him. He then resiled from this, to laughter, saying it was not a matter where they had a vote.

But of course, they do and should. The courts system would not function without the lawyers. However, the forensic traffic jam was a symptom of another problem; a cumulative failure to settle the cases.

Taking a benign view of politics, this is the kind of problem that prompts Ministers for Justice to commission a Report from the likes of The Committee on Court Practice and Procedure. See the PDF of the Committee’s 29^th Report (dated 2004) HERE- [DOC] CCPP 29th Report - Courts Service

In that Report the Committee remarked;

“At present a very small proportion of personal injuries cases go to trial. However, litigants have the right of access to the courts and the process available should be the dispensing of justice in a speedy, efficient and effective manner.”

And again;

“It… [personal injuries litigation]… is a small proportion of the High Court work. High Court judges are required to hear cases in lists on Personal Injuries, Bail, Bankruptcy, Chancery, Commercial, Common Law Motions Circuit Court Appeals, Family Law, Garda Compensation, Judicial Review, Probate, Proceeds of Crime Act, Asylum, Admiralty, Solicitors Act, Medical Council, Nursing Council, Dental Council, Extradition, European Arrest Warrants, The Hague Convention, The Luxembourg Convention and Crime.”

The Committee failed, among other failures, to look at the implications of the sentence “At present a very small proportion of personal injuries cases go to trial.” The statement is accurate and the credit belongs to the two branches of the legal profession, but those settled cases were not investigated by the Committee. The Committee was to “…examine all aspects of practice and procedure relating to personal injuries litigation and consider whether the present system of practice and pleadings is appropriate to modern personal injuries litigation.”

Surely the criterion of the success or failure of a practice or procedure is that it assist in the process of settlement? If the Committee did not investigate what was good and working in the then current system, how could they be said to have considered “modern personal injuries litigation”. (What is that?)

Then there was the note of regret; “However, litigants have the right of access to the courts…” and the recitation of the various lists, clearly addressed to lay ears. Those lists are not equivalent to each other and some generate vastly more work than others or, conversely, some generate little work.

What is notable is that Reports like this (particularly this one) depart from “initial conditions”. Here, the Minister defined the initial conditions. The Report then recites the then current practices. What is absent is evidence that the Minister’s conditions are pertinent to some real problem or that the current practices are seriously deficient.

We know that the practices and procedures were changed subsequent to the Report.

Now the Personal Injuries List is breaking down.

Don’t expect expressions of regret from any participants, or admissions that the changes for which the Minister was responsible have led to this.

It seems the situation can be worse than this blog had believed.

In Thema International Fund PLC v HSBC Institutional Trust Services [Ireland] (2011) IEHC the judge made the following remarks:

“It has become a growing practice for solicitors acting for parties in cases before the courts (and, I would venture to suggest, in particular, the Commercial Court) to copy correspondence to the court. Some lay litigants have adopted the same course.”

AND

“…care should be exercised that documents which may not ultimately be admitted are not brought to the court’s attention until such time as there has been a proper decision as to whether the relevant documentation is to be admitted.”

AND

“However, parties should exercise care to ensure that only documents which are properly before the court are included. It should not be assumed that a party has a right to bring documents to the court’s attention where there is at least an argument as to whether the document is properly before the court. Simply sending documents to the Court Registrar for the attention of the judge, without reaching agreement with the other side, is, in those circumstances not, in my view, proper practice.”

A Social Democrat will favour consumer protection; an individualist will not. To be radical rather than redundant, without explaining what you are radical about, is to be an anarchist and an anarchist thinks little about consumer rights. Even when you do explain what you are radical about you may reveal that, indeed, you are an anarchist.

The title of this post is a phrase from one of our opponents in a law suit. It was his gloss on interpretation of an Irish statute of 1952. We never knew, until he claimed it, that Ireland had a command economy in 1952 and still do not. (We are less certain about the economy of 2011).

These thoughts are prompted by the case of Noreside Construction Ltd. v Irish Ashphalt Ltd. [2011] IEHC

Here, the Plaintiff was constructing houses in Dublin on contract to the Local Authority. The Defendant supplied aggregate for use in the foundations. The Defendant failed to alert the Plaintiff that the aggregate contained pyrites. Pyrites are not suitable for house foundations; they cause upheaval and destroy the integrity of the construction.

The Defendant contended that its terms and conditions, as printed on its delivery dockets, were effective in excluding liability for consequential loss and limited any claims to the cost of replacing the aggregate itself.

The court found that the Defendant was wrong in thinking that its terms and conditions formed part of the contract; they did not. Furthermore, the contract contained an implied term of the merchantability of the product. (Student lawyers hear a lot about merchantability; practising lawyers less so).

To buy a house is the most significant purchase most people will make. It is the ultimate consumer purchase. That the consumer’s rights and remedies might in some way be constrained by the outcome of a “battle of the forms” between two commercial entities is not a rational ordering of social affairs. (It might require deployment of all the resources of both the Plaintiff and the Defendant in Noreside Construction Ltd. v Irish Ashphalt Ltd. to pay for the  presumed loss to the purchasers of the houses).

However, even civil proceedings following a road traffic accident will generate pleadings criticising the defendant. They, too, may imply a moral failure on the part of the defendant, or, just as pertinently, may be construed as doing so.

Construction may be everything; if the object of criticism thinks the criticism may lower him/her in the estimation of right-thinking members of the community he/she may sue for defamation. Absolute privilege is a defence to a defamation action and, under Section 17 (2) (i) of the Defamation Act 2009, attaches to reports published of proceedings before the Irish courts whether in the Republic or in Northern Ireland. The Section reads;

“…it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…… a fair and accurate report of proceedings publicly heard before, or decision made public by, any court-….”

To avail of this provision, the proceedings must have been held in public. This means that, for instance, the content of pleadings or an affidavit not opened in court will not be covered by the provision. (The writers of such pleadings or affidavits are protected, with absolute privilege, under Section 17 (2) (g) of the Defamation Act 2009).

The reporters of those pleadings or affidavits, if they are not made public in the court proceedings (i.e. not opened in court) are protected by qualified privilege under Section 18 of the Defamation Act 2009.

What if the judge, for instance, mutters “…I’ve read the affidavit…” and moves on? Has it been opened? Is it reportable?

That is a current issue in the UK.

HERE is the legal submission, in skeleton form, of the Guardian newspaper on the entitlement of the newspaper to have access to the papers upon which the [UK criminal] Courts are making or going to make their judgments.

See HERE for a statement relevant to this question in an Irish context.

So, before you can publish “a fair and accurate report” you must access the material. There is no right of access, under the Freedom of Information Acts, to Irish court records. In the High Court the records are under the control of the President of the High Court and in the Circuit Court under the control of the President of the Circuit Court.

Currently, in the High Court, civil pleadings are no longer filed in the Court. They are simply exchanged between the litigants and, later, a booklet of pleadings is delivered to the Court to facilitate the hearing of the action.

All of this is in considerable contrast to US courts. There, the general public has access to the court records. Indeed, they are often published on the internet by the court authorities. This is essential, for instance, in relation to a class action. There, the general public must be able to understand the issues to know whether to subscribe to the proceedings as an injured claimant.

When will Ireland catch up with the UK, not to speak of the US?

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.)

[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 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.

Sometimes, counsel’s opinion is just plain wrong. Of course, sometimes clients get what they insist on having. From the outside it is not always easy to see what caused the disaster, as in MMP gmbh v Antal  International Network gmbh.

According to the judgment the Plaintiff was alerted to the danger of advancing the case for compensation on a basis of a reduction in value of the corporate plaintiff itself.

When that proved unpersuasive, the evidence adduced on quantum was discounted and the court was left without any evidence on which to base an alternative claim. In effect, the plaintiff won on liability and lost on quantum.

All duck or no dinner!

According to the letter, everything appeared hunky dory in the garden until receipt by the SMDF of an actuary’s report on 23rd March 2011. The report seems to have been received by the directors of SMDF with mixed emotions. It showed that SMDF was “not under immediate stress” but it “might not have sufficient reserves to pay claims into the long term future”.

This benign prospect was offset by advice in the report that SMDF should seek appointment of a liquidator. This course could only be avoided by closing down promptly AND getting new capital of €14 to €16 million to carry on for 15 years [still closed down].

Well, hats off to SMDF, not to feel immediate stress from this prospect.

Interestingly, SMDF, unlike the Law Society, sees no threat to its reinsurance contracts. This makes sense; liquidators may sometimes repudiate onerous contracts but they are not known to repudiate beneficial contracts very often.

Again, interestingly, SMDF reinsured 100% of its business for the “current period”, meaning January 2011 to December 2011. That can only mean that the SMDF members finally got something like real insurance cover against claims of negligence. It also means that any claim arising in 2011 will cost SMDF nothing; the risk is laid off elsewhere.

So where have the claims come from, that the SMDF needs “re-capitalisation”? From previous years it seems. Where else?

Bear in mind that SMDF operated on a “claims made” basis. That meant that it “accepted” a claim made now, even though the negligence long predated the claim, possibly occurring in some previous year, when the solicitor was insured in the normal way with an insurance company. As a consequence of this, SMDF has known of the financial problems the relevant claims represent since dates long preceding March 2011.

In fact we knew that; SMDF had asked for and got a loan facility of €8.4 million from the Law Society in 2009. [Here, for “Law Society” read “the Council of the Law Society”].

All of this should be taken with a grain of salt. It is very possible to mismanage an insurance claim after it has been lodged. It is necessary to estimate the extent of the claim in money terms and set aside sufficient reserves of that amount. If SMDF failed to make the necessary estimate accurately, the maturing claims might prove unmanageable.

Possibly, that is what happened. But did it happen twice, firstly in 2008-2009, and again in 2010? No wonder the Law Society is talking about the insolvency of the SMDF, even though SMDF is prohibited from making payments, the effect of which would be to make it insolvent.

While the Law Society characterisation of the SMDF position may be understandable, it is misleading to speak of insolvency when there is not and cannot be an insolvency. This is all the more so given that the Council of the Law Society, in establishing SMDF, ensured that SMDF COULD NOT make a payment leading to its insolvency.

As for the directors of SMDF, there are two questions.

A) Do you accept responsibility for the mis-management of SMDF, resulting in its insolvency?
B) If you deny SMDF is (or will be) insolvent how do you think you can persuade a court to appoint a liquidator to a solvent company, as your letter seems to suggest?