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Complaints and Remedies

This is a post of clarification. No blog post can be a monograph, but sometimes “mature reflection” indicates that more needs to be said.

My post on the UK Law Society (seen HERE) is one such post.

May I be taken to be endorsing the Legal Services Board in any sense? Emphatically, no.

Do I approve of the concept of a regulatory system for solicitors? Reluctantly, yes.

Do I believe that the throwing of ashtrays at staff is a matter to be addressed in a regulatory system for solicitors? No.

Do I believe that the stealing of money from clients is a matter to be addressed in a regulatory system for solicitors? Yes.

A fundamental principle should apply; no person and no group of persons should be above the law. That law should be adequate to protect the legitimate interests of the public.

In addition, it is undesirable that there be a special process for applying the law to one group of persons by comparison with any other group of persons.

(It was the failure of the Catholic church and Irish society to adopt and apply these principles to Catholic priests that facilitated wrongdoing by priests.)

In any walk of life, therefore, be it that of lawyers or priests, the throwing of ashtrays should be challenged and, if appropriate, punished, in the same forum as is used for everyone else.

Why do I distinguish the stealing of clients’ money by solicitors from that principle?

I do so because when it happens the client is immediately at a disadvantage, relative to the solicitor.

The client has voluntarily transferred, or directed the transfer, of the money to the solicitor. On that ground alone the average policeman is immediately bemused at the beginning of any hypothetical investigation of a client’s complaint. It takes a specialised policeman, from a fraud squad, to conduct that investigation. In Ireland we have inadequate resources to investigate fraud.

As a practical matter, therefore, it is a necessary evil that the regulation of solicitors exist and that it apply with full force to the management of clients’ money.

I should declare an interest in this topic; under current regulations the Irish solicitors’ profession (I belong to that group) is the collective end stop for making good money losses by solicitors’ fraud or theft, as analysed previously by me HERE.

Needless to say I want a good, efficient, policeman working on the problem when it arises.

Wigs

As a consequence of Section 49 of the Courts and Courts Officers Act 1995;

49.—A barrister or a solicitor when appearing in any court shall not be required to wear a wig of the kind heretofore worn or any other wig of a ceremonial type.”

I have never known of an Irish solicitor to wear such a wig or to have been required to wear one. The same was not true of barristers. The Rules of the Superior Courts did require a barrister to wear such a wig. In other words, the Oireachtas had to intervene to prevent the Rules committee from persisting in that requirement. (The requirement was in Order 105, Rule 3 of the RSC of 1962)

It is interesting to note the reluctance of the Irish bar to abandon the wig. It is a sign of poor character that a barrister would continue to wear a ceremonial wig without compulsion. (In the UK they are conflicted, as seen HERE. They are trying to get to “business suits”, but court dress includes the wig; the whole shooting gallery in fact.)

I have referred to the committee as a bunch of obscure unelected people HERE.

They may be that, but powerless they are not.

They have changed the Rules of the Superior Courts to ensure that costs on interlocutory applications are not deferred, to be “costs in the cause”.

This is a serious matter.

When Lord Woolf delivered his report in 1996 (“Access to Justice”), one of his objectives as he told an Irish conference on reform of civil law was:

…to make the system more equal. By more equal I mean achieving a situation in which it is not possible for a party to use greater resources to deprive the party who has less resources of the opportunity of obtaining justice.”

The original practice of usually making costs, “costs in the cause” was not a free ride for chancers; the bill eventually had to be paid. However, when that decision as to the identity of the person to pay was made, the court knew exactly why that person should pay.

The new rule favours parties with resources; the more resources that party has the greater the advantage. The new rule may even ensure the precipitate premature ending of the case; a complete denial of justice.

The Intoxication of Government

Is the Cabinet drunk?

Minister Coughlan seems shocked by the implied suddenness of a proposed EU directive to protect consumers. (See what she says HERE).

Did nobody tell her of the EU strategy for consumers? (See it HERE).

And what of this item of bluster from her press release?:

…the current body of legislation is a mix of the 1893 pre Independence legislation and the 1980 Act together with secondary legislation deriving from EU Directives. This has made it difficult for consumers and businesses to understand their rights and obligations.”

From a consumer point of view there is no need to go back to 1893. We purported to update the 1893 Sale of Goods Act 1893 with the Sale of Goods and Supply of Services Act 1980 and to benefit Irish consumers thereby.

It’s just guff to try to blame Britain (specifically Gladstone, in fact!) for yet another Irish Government failure.

And what are we to make of the expert group? We already pay for the personnel of the Law Reform Commission. Why should we have to pay for another group of persons duplicating its work?

Is there a special agenda that the Law Reform Commission does not know of and cannot be trusted with?

Perhaps the Commission is in the dog-house because of its proposal to facilitate multi-party litigation? Does the Government not know that that is where the EU is going? (See it HERE).

What specific document has the Government received from the EU? Minister Coughlan will be at the Council of Ministers that ultimately approves/disapproves the draft directive. Has she received better notice than the public has? (See the EU proposal HERE).

If Irish consumers are uncertain what Minister Coughlan’s expert group are looking at, send an email to EU consumer commissioner Maglena Kuneva HERE.

Maybe, just maybe, she will tell us.

Say nothing rather than something

Should judges express their opinion?

The answer is yes, but appropriately.

Adrian Hardiman, a member of the Supreme Court expressed his opinion of Irish legal reporters recently (script seen HERE), and was attacked by, inter alia, the NUJ, HERE. (No comments, please on my use of latin [“inter alia”]).

In fact a court reporter has a very difficult job. The newspaper owner and the editor are very anxious to report what happens in court; any fair and accurate report is privileged and they are relieved of the phenomenal effort and anxiety required to prove the fact or facts of the proceedings.

However, the method of exposition in a court is not conducive to making clear what is actually happening in a case. Often, the case is developed through a series of motions and there may be considerable time lapses between the hearing of the motions. Even in a trial the “opening” by counsel may not reflect the actual events which take place in the trial. Proper “fair and accurate” reporting ought not to be a “quick and dirty” operation but the reporter may have no alternative to adopting that as a solution.

It is an open secret that court reporters are assisted by the legal practitioners. They are frequently furnished with a copy of the pleadings. These will contain some essential facts, at least. However, the reporter needs to know that what is pleaded may not necessarily be supported by evidence at the trial.

This relationship is fraught; the reporter should know that legal practitioners are seldom without an agenda of their own. That agenda will be more or less benign depending on the circumstances.

Equally, for a reporter to produce the kind of report that will please a judge is not necessarily a good thing; many judgments are overturned on appeal, sometimes because the judge’s conclusions were not supported by the evidence. Some judges are better than others (to put it mildly).

Consequently, a reporter should not look for the “core” of his or her report in the pleadings or in the characterisation of the case by counsel or in some diatribe by the judge (unless he or she is working for a “red-top”; then, always go for the diatribe).

Managing Ireland

Irish society is suffering from serious failures on the executive side.

The Law Reform Commission, by contrast, is an Irish institution that is functioning well.

I have referred HERE to its proposal that Ireland implement a system for accommodating “class actions”.

An executive failure (whether in the executive proper or in the administration of the Courts) is all the less forgivable when a good workable proposal is advanced by the Commission and then ignored.

Undoubtedly the failure to have such a system caused considerable loss to the State in the “Army Deafness” cases.

The continuation of that failure is not, therefore, simply a hard-nosed conservative attitude of denial to personal injury claims (which it is), it is a fundamental failure of imagination, and ultimately, of management.

I do not intend to imply that class actions will arise solely in relation to personal injury claims. They will appear there; the pollution of the Galway drinking water supply is a case in point. With a system for making multi-party claims, the injured people of Galway would undoubtedly have made claims for those injuries. They could have done so individually; the fact that they appear not to have done so is some evidence that Ireland is not a litigious society.

Class actions will arise in consumer law cases. It would be wrong, to paraphrase Calvin Coolidge, to conclude that “the business of Ireland is business” and, as a non-sequitur, conclude that the interests of business are paramount over those of the Irish consumer.

The Inquisitive Patient

How much should your doctor tell you?

Well, everything material, if you ask. And if you do not ask?

The doctor should inform you of the treatment it is proposed to apply to you and clearly inform you of any risks associated with that treatment. The presumed outcome of that will be an “informed consent”.

It is only with the consent of a patient that a surgical procedure, say, is rendered lawful. Without the consent it is an assault and battery and a particularly serious one at that.

A consent which is not informed is not a real consent.

The limitation on the duty of disclosure is the word “material”.

A doctor, even using an information sheet or publication, cannot be expected to inform every patient of everything relating to the proposed treatment. There would not be enough time in the world to achieve that objective.

Nevertheless, it is not enough for a doctor to say that he/she replied to the queries of the patient; in short that “informed” standard varies from patient to patient, depending on the inclination of the patient to ask questions.

In Geoghegan v Harris [2000], Kearns J stated;

Having regard to the heavy obligations imposed on medical practitioners by Walsh -v- Family Planning Services , it seems to me that any real consideration of the “inquisitive patient” is subsumed by the onerous obligations of disclosure set down by the Supreme Court. Current Irish law requires that the patient be informed of any material risk, whether he inquires or not, regardless of its infrequency.”

This is a deviation from what appears to be the UK approach, an approach obliquely queried by Sedley L. J. in Wyatt v Curtis [2003] EWCA Civ 1779 where he said;

…there is something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about”

The Doctors’ Bill

Irish society is, to an extent, like a disorderly bus queue.* As little analysis as possible is done and even less is published, on social problems.

Metaphorically speaking, the bus service pretends the queue is not its concern and defines success by reference to the bus schedule, not the requirements of the public.

The extent of injury inflicted on hospital patients by clinical negligence is a case in point. We do not know what it is. When it happens the consequences are real. Somebody somewhere pays for the injury. Clearly, the victim suffers the injury and pays in that fashion. The family of the victim may pay in care deployed or care costs paid. Or, if the family consists of children of the victim, the children may suffer diminished life opportunities by being deprived of care they would have got from the victim.

Possibly it is a misnomer to label clinical negligence as a social problem; arguably, if it is not, public maladministration is a social problem.

In any event we must look elsewhere for estimates of the frequency and cost of such events.

In 1990 the Harvard Medical Practice Study estimated the incidence and causes of medical mishaps in New York hospitals.

Errors in management were found to be involved in the majority of mishaps. Drug complications were involved in 19%; wound infections in 14%; technical complications in 13%; surgery in 48% (of which only 17% were actual surgical errors); faulty diagnosis was involved in 75%; “errors of omission” were involved in 77%; events in the emergency room were involved in 70%.

The study covered a sample of 30,195 randomly selected hospital records. 1,133 patients (3.7 percent) were found to have suffered disabling injury caused by medical treatment.

In the UK, the NHS has produced a study entitled Handling Medical Negligence Claims in England.

While its approach is an administrative instrumental approach (a function frequently, inappropriately, assumed in Ireland by judges), it nevertheless makes a fair stab at measuring the problem.

One of the most interesting “macro” issues in the field is the issue of determining the true cost of the injury. In the case of catastrophic injuries (cerebral palsy and brain damage generally) the largest proportion of compensation is determined by the “special damage” – the cost of care.

There are serious and unresolved disputes on the calculation of these costs. Currently, only the legal profession is addressing that problem.

*(a disorderly queue is not a queue?)

Emma Duddy v North Western Health Board & Anor.

 

The High Court has approved a €4 million settlement in the case of a 13 year old girl.

She suffers from cerebral palsy after the alleged mismanagement of her birth.

The proceedings were taken by Emma Duddy of Letterkenny, County Donegal, represented by McGarr Solicitors, against the North Western Health Board, the former owners of Letterkenny General Hospital and Mr. Davidson, the obstetrician. Her mother Adrienne acted as her “next friend”.

Her mother went into hospital in Letterkenny in 1995 for the birth of Emma. The court heard allegations that the labour and birth were mismanaged.

The defendant was sued for negligence and breach of duty, including statutory duty, which the Plaintiff said, through her parents Adrienne and John, led to her severe disability.

No admission of liability was made by the hospital or Mr. Davidson and the action against Mr. Davidson was struck out as part of the settlement.

The Picture of Dorian Grey

I worry I have been sleeping on my rights.

It has been the practice of art galleries in Ireland to keep the very identity of purchasers secret from the artists that the gallery “represents”.

Now as a consequence of Directive 2001/84EC and The European Communities (Artist’s Resale Right) Regulations (SI 312 of 2006), we artists are entitled to information from the gallery which will enable us to enforce our claims for a percentage of any money generated on a resale of our work.

I must urgently write to my gallery for the names and addresses of my buyers.

(For reasons currently unknown to me I am unable to link to SI 312 of 2006 because Statutory Instruments for 2006 are missing from the website of the Attorney General and BAILII).

NOTE for naive artists; terms and conditions apply

A finger in the dike

I have previously warned of the need for vigilence in seeking indemnity cover from your own insurance company HERE.

Where you are the recipient of a claim, one way or another, you will find yourself, almost invariably, in litigation.

It is better that that litigation is only the proceedings taken against you. The alternative is that you find yourself in those proceedings and a new second set of proceedings in which you are the plaintiff and “your” erstwhile insurer is the defendant.

This can come about because your insurer declines to indemnify you for some alleged failure On your part as happened HERE.

Of course you could compound your difficulties yourself by failing to press your claim to indemnity in arbitration, as happened HERE.

The plaintiffs in these proceedings knew of a claim against them not later than 5th December, 2002. Their insurer knew of the claim prior to 20th March, 2003. It declined to indemnify. Only by letter dated 22nd December, 2005 did the plaintiffs attempt to refer the failure of the insurer to indemnify them to arbitration. In the letter the claimants’ solicitors informed the respondent that the claimants would be invoking the arbitration clause in the policy, nominated three persons who might act as arbitrator and enclosed a draft submission to arbitration.

Under the policy, the insured had one year to invoke the arbitration clause, whereupon the claim was deemed to have been abandoned. In the case the plaintiffs were very late.

The court extended the time to refer the matter to arbitration but subject to:

…the applicant will be responsible for the costs of this motion and will also be responsible for the costs of the arbitration even if successful therein.”

If you must shoot yourself, be sure to shoot yourself in the most painful part of your anatomy!

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