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Mr. KenMore

Dear Mr. KenMore,

You will shortly be Taoiseach. I know that my voice is not foreign to you. I have an accent (metaphorically speaking) like Dermot Gleeson SC. That should alarm you but I know it will not. This is not because you are schizophrenic (which you are), but because, in your field, you need to keep talking and the explication of process uses a lot of words. Lawyers can elaborate process and consequently generate words. Like an oasis in the desert they seem to offer life (political life, in your case) allowing you to hold the floor, to occupy space of every kind, but principally space in the minds of others.

There is no guarantee that this is of value of the listeners. Perhaps you disregard this, at least for a time. That is a mistake. Before he was chairman of Allied Irish Banks Dermot Gleeson SC was legal advisor to Michael Noonan, who was brought to the point where he said he would eschew legal advice if he had his life (political, again) to live over. Maybe he will (eschew legal advice AND live his [political] life over again).

The mere occupation of space is a miserable ambition. Look at the outgoing government.

This letter is to ask you to repudiate what is graphically currently known as “stuff”. Stuff is process; it is the surface. It is the shiny trivia of life.

I propose that you look instead to principles not process. I know nothing of the principles of banking beyond what commonsense might suggest to me. I do, however, know something of what is fair and I write this letter to suggest that you commit to fairness in this election. Fixing a bank will not secure fairness, but fairness, in principle, is a requirement to secure good banking.

Here are some easy reforms to bring fairness to the people of Ireland;

A) Restore the limitation period for personal injury plaintiffs from two to three years;

B) Repeal the Personal Injuries Assessment Board Act of 2003;

C) Repeal the provisions of S. 10 of the Courts and Civil Liability Act 2004;

Michael McDowell SC wanted to reduce the limitation period for personal injury plaintiffs from three years to one year. Arguably three years is unfair; in matters of contract the period is six years, but I am not urging that you decide on that; just that you bring it back to three years. For many injured people it is no difficulty to take action within three years of their being injured, but there are many exceptions. On a question such as this, every effort should be made to ensure that nobody is shut out of justice. To close the door of the Four Courts (yes, it happened, literally) to injured plaintiffs is to favour reckless free riders over innocent people who have no social organization to represent them.

REFORM 1: Why should the limitation period be three years rather than two?

ANSWER: A limitation period exists to protect society from old stale claims. If a claim is old and stale a defendant may be unable to rebut the evidence of the plaintiff due simply to the passage of time. If matters had been addressed in speedy fashion a defendant might be able, by evidence, to show that it is not liable for the plaintiff’s injury or that the plaintiff was contributorily negligent to a high degree. However, this is hypothetical. Most cases of personal injury (car crashes etc.) are immediately known to a wide circle of people, including the “defendant”. In those circumstances the plaintiff’s delay is irrelevant to the defendant’s ability to defend itself.

On the other hand, a plaintiff needs time to start his/her proceedings. There are many obstacles to a plaintiff in this regard. The injury incapacitates the plaintiff; he or she cannot get the time, energy or opportunity to instruct a solicitor. The plaintiff may have money problems. The plaintiff, compared to the defendant, will often know less of the injurious event than the defendant. The plaintiff needs time to gather the evidence.

This point is seen in the extreme in cases of medical negligence. The courts have opined that it is professional misconduct for a lawyer to issue proceedings in medical negligence cases without the back-up of an expert’s report confirming the negligence. How long does it take to get that? It can only be sought after the medical records have been received from the putative defendant. Thus, for such a plaintiff, gathering the evidence requires force of character; the recovery of medical records; the choice of expert to advise on the issues and the receipt of an opinion written, often, by a busy professional to a very high standard. None of these things can happen quickly.

The choice should not be between two years and three years, but between three years and some longer period.

REFORM 2: Why should the Personal Injuries Assessment Board Act 2003 be repealed?

ANSWER: There are several reasons;

a) PIAB favours defendants; the system is mandatory for plaintiffs and voluntary for defendants;

b) PIAB generates delay for a plaintiff in the resolution of his/her problems;

c) PIAB facilitates the decay or dispersal of evidence exclusively in circumstances that favour the defendant and hamper the plaintiff.

d) PIAB is becoming irrelevant save to the extent of the effects referred to at a), b) and c) above.

REFORM 3: Why should the provisions of S. 10 of the Courts and Civil Liability Act 2004 be repealed?

ANSWER: It hinders the issuing of proceedings for personal injury in timely fashion. Compliance with S. 10 requires the injured plaintiff to gather substantial quantities of evidence and instruct lawyers relating to same, before issuing proceedings. A Personal Injury Summons is a substantial lengthy document and not readily compiled at speed. In lawyers’ language, could anything be more calculated to favour defendants compared to (personal injury) plaintiffs? For upwards of fifty years before 2004, court rules permitted the quick issuing of a Plenary Summons for a personal injury claim. Thereafter, the plaintiff had to serve a Statement of Claim with proper details of the claim pleaded. However, any delay in so doing was amenable to control by the court; it was not subject to the severest sanction – the expiration of the statute of limitation period. It is that sanction that now hovers over every personal injury plaintiff and is brought closer by the provisions of S. 10.

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  1. By Ceci n’est pas une publicité « A Clatter of the Law on Monday, April 4, 2011 at 10:47 pm

    […] Solicitors wrote, before the election, that the new government should abolish PIAB on the grounds that it is unfair […]