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The New Legal Year 1

The Irish Times is on odd newspaper. It seems to aspire to be a place rather than institution. An institution implies a purpose, a place implies openness to the contingent.

We see this recently in an article on “the Legal Profession”.

The article is a review rather than a report. It is, in fact, an opinion piece.

There is a place in life for opinion pieces, but the Irish Times is overly fond of them.

This post is a modest attempt to counter the Irish Times.

1. It is, in the context of a newspaper article, pointless to speak of “the Legal Profession”. The term must refer, at least, to the collective of persons practicing law (in Ireland). The profession, as most people know, is a divided profession. There are solicitors and there are barristers. That division is a modest indication of this fact:- lawyers are disparate. They live by instructions from individual clients. They spend most of their time acting on the instructions. In short, their daily work has little to do with the collegiate aspect of the profession. Indeed, the work often requires the deliberate eschewing of “collegiality” and emphasizes the individualism implicit in a society that has privatised the practice of law. (The practice of law does not necessitate the existence of private practitioners, but that is the system we have in Ireland).

2. It is a misnomer to use the term “the Legal Profession” as a reference to the Bar Council of Ireland or the Law Society of Ireland. Neither of these bodies is the profession. Even together they are not the profession.

3. Individual wrongdoing by a solicitor or a barrister implies little about any other lawyer. This is clearly the case where the wrongdoing consists of murder or armed robbery or dangerous driving. Even if it consists of mortgage fraud, it implies nothing about other lawyers. (Mortgage fraud may imply something about human nature, but lawyers, as such, are not accountable on that score). Mortgage fraud may indicate the desirability of having mortgage processing systems that will practically eliminate mortgage fraud. If so, any case of mortgage fraud has implications for other lawyers, not because they may succumb, but because it shows up something problematic and remedial. In Ireland, until the Irish banking industry demanded change, there was a system in place that, unlike the current system, hindered mortgage fraud. Any current or recent case of mortgage fraud points to the mistake that was made in yielding to the bankers’ demand. The Bar Council or Ireland was not involved in that mistake; the Law Society of Ireland was. Ironically, the mistake was made because of pressure, ostensibly, to meet the “needs” of clients.

4. Tax fraud is not something unique to lawyers. More than mortgage fraud, it implies nothing about other lawyers.

5. Falling incomes for lawyers do have implications for them and society. Assuming Irish lawyers deliver services that Irish society needs, it is socially undesirable that they are not properly paid for the work. The morale of any normal person would be affected by lack of money and/or recognition of the value of that work. Socially undesirable things usually (almost by definition) have undesirable effects for individual members of society. In this case it may be a neglect of a client’s business; or a refusal to represent a client. More likely than not it will take the form of a growth of unmet legal needs. There is, in the view of this writer, an ocean of this in Ireland. Now, even victims of personal injury may find themselves in this ocean.

To be continued…

Filth

Three babies in Letterkenny General Hospital have been infected with MRSA.

Clearly, the Hospital is answerable for these infections. They have occurred in the health care setting; the babies cannot be accused of any contributory negligence in the matter.

Their respective parents cannot be held responsible either; they had contact, in each case, with just one baby.

Indeed, these are absurd notions, born of desperation to dodge responsibility.

They have meaning only to medical practitioners and health care managers willing to delude themselves that they can avoid shouldering responsibility for such infections in the absence of being confronted with a video or other visual record (and therefore, presumably unchallengeable) of the mechanism of infection.

What is now clear is that the Chief Executive of Letterkenny General Hospital knows someone in the Hospital is the source of these infections.

He is obliged in criminal law to ensure that person does not cause any more infections.

Shut Up!

The sole member of the Morris Tribunal has criticized Mr. Jim Higgins MEP and Mr. Brendan Howlin TD for contacting the Minister for Justice with information relating to, inter alia, wrongdoing by members of the Garda Siochana in Donegal.

As part of their reply, in rejecting the criticism, they refer to the absolute privilege they were entitled to if they had chosen to make their disclosures in the Dail. They make the point they did not avail of this (on the basis that it might have been an abuse of the privilege).

What they do not say is that in communicating with the Minister for Justice their communication was also privileged. The privilege would not have been absolute; it would have been and was, a communication attracting qualified privilege.

Only malice could have deprived them of the benefit of the privilege. No malice has been alleged against them.

Communications on occasions of qualified privilege have been protected in law for a very long time.

The sole member of the Morris Tribunal cannot have meant to disparage that privilege and if so, it is difficult to understand his criticism of the two politicians.

A Personal Fighting, Flying, Machine for every Citizen?

Ryanair is not popular. For this writer, it’s enough to remember traveling to Venice and being dropped in Treviso. It was the “arrangementâ€? for the return flight that left everything to be desired.

Nevertheless, the Bar Council of Ireland should strike a memorial medal to the airline for its services to the legal profession.

Look at its latest litigation outing HERE.

It issued proceedings in the form of a Special Summons and got slapped down because it hadn’t proceeded by way of Judicial Review.

Is it possible that Michael O’Leary has a jaundiced view of Order 84 of the Rules of the Superior Courts as referred to HERE and HERE?

When and where and why did that happen?

In Mussolini’s Garden

This blog has previously bemoaned the lack of interest in Ireland in ideas. Strictly, what was being regretted was the failure to articulate the controlling idea; the people of Ireland, sometimes all of them, and often many of them, are not heedless of ideas – they act on them rather than voice them or consider them.

One of the most influential ideas in Ireland is the belief that the State is superior to the citizen. This idea does not have universal acceptance, but it has a very strong grip on the persons controlling public administration. It is all the stronger for being an assumed truth and never referred to, let alone justified.

The fact that the Irish Constitution contains, and is professed to contain, provisions intended to safeguard the citizen from abuses by the State or its agents, does nothing, it would appear, to attenuate the Statist belief.

Historically, the Statist view is most strongly associated with Germany. Arguably its traditional or original German proponents hold the view as a considered philosophical position. They readily express and defend their ideas of the precedence of the State over the citizen.

It is a matter of surprise that such an idea would find root in Ireland, but its home in public administration suggests its attraction; it appeals to politicians in office and public administrators generally. The exercise of power is rarely if ever a pure act. The administrator invests his/her personality into the decision or act (and judges the fortune of his/her career thereby). Any opposition is resented. Any abstract idea that belittles or diminishes the status of the citizen is welcomed. It vindicates the continued deployment of power even in the face of substantial opposition. In the balancing of citizen and State rights, the balance is not affected by opposition measured by numbers; after all, numbers cannot make what is wrong, right.

Ireland inherited from the UK a perception that the traditional marginal role of the police in the UK (and Ireland) was superior to the Napoleonic system, seen in modern times in mainland European countries in the vestige requiring strangers to report in to the local police station.

In Italy its most ironic manifestation is the absence of internet hotspots or wifi zones on the terms found in Ireland, the UK and the US – free. In Italy it is necessary to produce a passport to use an internet shop; to join a wifi network or, effectively, to use a hotspot.

Benito Mussolini’s villa in Rome was Villa Torlonia on Via Nomentana. Reputedly its garden is a good reception point for the principal wifi network of the city. But reception is available only on terms Mussolini would have understood; by the grace of the Italian State.

While that is not the situation in Ireland, we still limit the ability of the citizen to challenge the State. The principal mechanism of limitation is Order 84 of the Rules of the Superior Courts.

Mussolini would have understood and approved that.

The Long Vacation

Following a long-standing tradition, the Supreme Court, the High Court and the Circuit courts are on holiday. The holiday lasts for August and September and is appropriately called The Long Vacation.

According to Wikipedia;

In the United Kingdom the word “vacation” referred specifically to the long summer break taken by the law courts (and later universities)—a custom introduced by William the Conqueror
from Normandy where it was intended to facilitate the grape harvest. The French term is similar to the American English: “Les Vacances.” The term derives from the fact that, in the past, upper-class families would literally move to a summer home for part of the year, leaving their usual family home vacant.â€?

In Ireland grape harvesting is not to fore. It has been speculated that the tradition facilitated taking in any harvest and that gentleman farmers that were practicing barristers or judges found the same need for quitting their professional activities to bring in their crops.

The pressure of modern life probably ensures the continuation of the tradition rather than ending it. While the courts are sitting, barristers, solicitors and judges are engaged in the constantly moving process that is the formal administration of justice. The pressure of this work suggests “the front lineâ€? of warfare. Even, or particularly, in warfare it is necessary to rotate the troops out of the front line and into the rear, for “rest and recreationâ€?.

Under the Rules of the Superior Courts the obligation to deliver pleadings is suspended during the Long Vacation. Consequently, motions for judgment in default cannot arise; the great engine of confrontation that drives litigation is thrown out of gear, if not switched off entirely.

In fact it cannot be switched off completely. Urgent matters can and do arise. There is always a judge on duty to hear applications of that nature. In addition, the courts sit every fortnight or so and urgent applications may be listed before the court to be heard on those days. They are occasions to see what life would be like without the wearing of wigs, gowns or tabs by the barristers and judges, which, during terms, the forces of political and social reaction dictate.

The RIAI Contracts

The form of contract for Irish nominated building sub-contractors has featured previously HERE.

At the time I made no reference to its terms. I do now. It is badly written. It is a challenge, for instance, to find the provision under which the Main Contractor is obliged to make payment to the sub-contractor (Clause 11).

This is not good enough, given the likely value of the sub-contractor’s work and contract. The terms of the contract are not very generous to the sub-contractor either. They associate the Contractor’s obligation to pay, with the Architect’s certificates issued under the Main Contract. How and in what circumstances is the sub-contractor going to receive a copy of the certificates, or even notification of them?

There is no provision to cover this and it behooves the sub-contractor to ensure a contractual obligation on the Contractor to notify, at the very least, the sub-contractor of the issue of certificates.

The Parliamentary Draftsman (2)

It is likely I was unfair to the Parliamentary Draftsman HERE.

Who can now say what was intended by the legislation? In Ireland, the answer to that question is “the Courtsâ€?.

Unlike some other jurisdictions we do not seek the meaning of words used in legislation by, for instance, interviewing the people involved in the introduction of the legislation. In the case of Section 20 of the Proceeds of Crime (Amendment) Act 2005, if we were to follow that course we would have to interview the then Minister for Justice. But even that would not be sufficient. He did not “passâ€? the legislation; he introduced it to the Oireachtas. It was the Oireachtas that passed it.

It is not feasible to interview the members of the Oireachats to find out what they intended. Even if it were feasible to do so, it would be wrong. It would be an admission that nobody knew the meaning and purpose of the legislation until the views of those members was ascertained. Even the idea of something being “ascertainedâ€? is a problem.

Who will formulate the question to be put to the members?

Who will interpret the confused, inarticulate replies? (Some, at least, will be such).

No, indeed. We need the principles of Statutory Interpretation.

A golden age of Statutory Interpretation has just opened in Ireland.

The future is bright for its practitioners.

The Parliamentary Draftsman

The people who draft legislation are unusual. The job is difficult and requires long training, experience and talent. Inevitably, mistakes are sometimes made.

Section 20 of the Proceeds of Crime (Amendment) Act 2005 looks like a mistake. The writing is not elegant; the reverse.

To understand Section 20 it is actually necessary to cut and paste the amendments set out in Section 20 into Section 38 of the Criminal Justice Act 1994.

Section 38 had, originally, a simple aim; to confiscate money entering or leaving the country and connected with drug trafficking.

Somebody, (probably the Minister for Justice etc.) decided to expand it to apply to cash connected with any criminal activity. In addition, it seems it was intended to allow confiscation regardless of the importation or exportation element.

So, Section 20 of the Proceeds of Crime (Amendment) Act 2005 inserted two new sub-sections into Section 38 of the Criminal Justice Act 1994.

However, no amendment was made to Section 38 (2) of the Criminal Justice Act 1994. Continued retention or confiscation of the cash was permissible only on the order of a District Court judge. Before making the order the judge had to be satisfied of certain matters (by evidence from the Gardai). That evidence included the requirement to show the cash was being imported or exported.

This renders the new provision Section 38 (1A) VERY difficult to rely on; most such cases would have no element of importation or exportation, and yet it is only when evidence showing such element is adduced that the sub-section becomes useful to the prosecution.

38.—(1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person’s proceeds of, or is intended by any person for use in, drug trafficking.

(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied—

( a ) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and

( b ) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that—

( a ) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and

( b ) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.

(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise.

(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied—

( a ) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or

( b ) on an application made by any other person, that detention of the cash is not for that or any other reason justified.

(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section—

( a ) an application for its forfeiture is made under section 39 of this Act; or

( b ) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,

the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.

20.—Section 38 of the Act of 1994 is hereby amended—

(a) by the substitution of the following subsections for subsection (1):

“(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that—

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if—

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.�,

and

(b) by the insertion of the following subsection after subsection (3):

“(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.â€?.

A Change of mind

The new Chairman of the Bar Council must surely remember the events surrounding the introduction of the rules of disclosure of reports in personal injury actions.

They should fortify him in his efforts to have canceled, or substantially amended, the new rule of the Superior Courts in Statutory Instrument No. 12 of 2008 as suggested HERE.

The practicality of changing the effect of Statutory Instrument 12 of 2008 is real and the example is found in the recent past.

The Superior Courts Rules Committee introduced an amendment to the rules in 1997, as set out HERE.

Very promptly, the amendment was revoked and replaced by a new rule as set out HERE. This was discussed in the Supreme Court in Payne v Shovlin [2005] IESC.

The Court accepted that the effect of the 1997 rule on disclosure was too broad and the new, replacement rule was of a narrower ambit.

In short, when the bad effects of a rule or rule change is manifest the Rules Committee is capable of responding positively.

Go to it, Mr. Chairman!

(PS: Issue a new Press Release; your website shows Turlough O’Donnell as the Chairman, according to the latest Press Release on the topic; cancel the old Press Release).

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