The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).
Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.
The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.
We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.
Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.
Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:
“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”
This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.
That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.
Judges take note.
Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.
But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).