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Biting dogs

Some legal principles escape from the courts and enter the popular culture. “€œEvery dog gets (is entitled to) one bite” is such a “€œprinciple”, albeit now mistaken, if it was ever true.

It arose because of the dubious division, in law, between “wild animals” and “€œdomestic animals” for the purpose of finding liability for injuries caused by animals. The Law Reform Commission, in “€œCivil Liability for Animals” remarked that

In scienter the distinction between wild and domestic animals is artificial, is not to be found in nature, and in terms of danger, does not correspond to the experience of professional animal keepers. For example, the keeper of Dublin Zoo expressed the opinion that all animals should be considered dangerous and declared that even rabbits can at certain times bite and be aggressive. Bord na gCapall expressed the view that care was always needed in handling horses (domestic animals) and that “all animals should be treated as ‘wild animals’â€?

The false distinction led to a requirement on the Plaintiff, in the absence of other indications of liability, in actions arising from injury or damage caused by “domesticatedâ€? animals, such as dogs, to show that the owner/Defendant knew of the mischievous propensity of the dog, or whatever, to injure persons [by biting, say].

In relation to dogs, in Ireland the position has been partially settled by Section 21 of the Control of Dogs Act 1986. The owner of a dog is strictly liable for the injuries caused by any dog attack on a person or livestock.

21. €”(1) The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog and for injury done by it to any livestock; and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner’s knowledge of such previous propensity, or to show that such injury or damage was attributable to neglect on the part of the owner.

Perversely, livestock are more protected by this provision; it only applies in the case of a person if the dog attacks, but the livestock are protected regardless of the mode of damage.

Doctor X

“The Bitter Pillâ€? by Doctor X is a small effort to improve the Irish hospital health system and, as such, is required reading by all interested and concerned persons.

This post is an unashamed plug for the book, published [2007] by Hodder Headline Ireland.

The author is an anonymous junior hospital doctor, concealing his (I say her) identity as Doctor X. Currently I have read only the chapter entitled “Dirt and Bugsâ€?, but on the strength of that alone the Minister for Health will in future be unable to “spinâ€? the shocking levels of nosocomial infections in Irish hospitals.

There is a depressing conclusion also; most intelligent lay persons would have no difficulty envisaging the state of affairs revealed by Doctor X in “Dirt and Bugsâ€? (without the benefit of his/her revelations). When the Health Service Executive issue hospital “hygiene auditâ€? results, they, as professionals, must already know what Doctor X knows and therefore they know that the hygiene audits are misleading as to the true state of affairs in hospitals.

PIAB ahead!

PIAB applicants (i.e., personal injury victims) should take the long view and consider themselves fortunate, currently.

Cassius Dio (58.21.4-5) records that, due to a credit crunch in 33 AD:-

Tiberius then modified his decision regarding loans and gave one hundred million sesterces to the treasury, with instructions that senators should lend this money for three years without interest to those who needed it. He also ordered that the most disreputable of those who were bringing accusations against others should all be put to death on a single day. (emphasis added)

Irish Judicial Review

United Kingdom Law

1. The current law relating to judicial review in the UK arose out of a UK Law Commission recommendation for a new procedure for judicial review. The Commission did not envisage a procedural exclusivity for the new procedure. It had in mind the opportunity for declaratory claims on public law issues in plenary proceedings. Its procedure was adopted ultimately by the Supreme Court Act 1981, sections 29, 31 and 43.and Order 53 of the Supreme Court Rules. In due course, Order 53 became a schedule to the Civil Procedure Rules. (SI 3132/1998)

2. When, in O’Reilly v Mackman [1983] 2 AC 237, the House of Lords decided that it was an abuse of the process of the court for a private person to proceed by ordinary procedure seeking vindication of rights claimed under public law against a public authority, the court, by Lord Diplock, indicated that it, too, did not envisage a full procedural exclusivity for the new procedure and specifically mentioned cases involving “mixedâ€? issues of public and private rights as suitable to be pursued by [plenary proceedings].

3. This view manifested itself in Roy v Kensington, Chelsea and Westminster Family Practitioners Committee. [1992] 1 AC 624. The plaintiff issued plenary proceedings where the defendant asserted he should have gone by judicial review. The court found that either he was an exception to O’Reilly v Mackman or, because his private rights dominated the issues, he was entitled to proceed as he did. This approach has been approved by the UK Law Commission. (Law Commission No. 226 Part III (1994)). Significantly, it states as satisfactory the then current situation requiring an applicant to proceed by Order 53 (judicial review) only where “(a) the challenge is on public law grounds… [and nothing else]… or (b) the litigant does not seek to enforce or defend a completely constituted private law right…â€?

4. The retreat from O’Reilly v Mackman is clearly seen in Mercury Ltd. v Director General of Telecommunications [1996] 1 WLR 48. Here, the House of Lords approved the bringing of proceedings by Plenary Summons, seeking a declaration where two parties to a contract had made a reference to the Director under the terms of the contract.
5. O’Reilly v Mackman preceded the introduction of the UK Civil Procedure Rules (“CPRâ€?). Procedurally, the UK CPR (CPR r. 1.1 (1) and 1.1 (2)), is significant. The overriding objective is to deal with cases justly. This includes dealing with a case so that the parties are on equal footing; in ways proportionate to the importance of the case, and the [relative] financial position of the parties. Order 53 must now be read in that light. This would seem to rule out “procedural exclusivityâ€? even as attenuated following Roy v Kensington, Chelsea and Westminster Family Practitioners Committee.

6. The UK courts have found a number of grounds for not applying the principle of O’Reilly v Mackman in every case:

a. Where the invalidity is raised by way of defence; Davy v Spelthorne B.C. [1984] AC 264; R v Reading Crown Court, ex p. Hutchinson [1987] QB 384
a. Where there is no objection; Gillick v West Norfolk Area Health Authority [1986] AC 112
b. Where Order 53 procedure is not well suited to the dispute; Mercury Ltd. v Director General of Telecommunications [1996] 1 WLR 48
c. Where the issues arise collaterally in a claim for the infringement of a right of the plaintiff arising under private law; Wandsworth LBC v Winder [1985] AC 461; Roy v Kensington, Chelsea and Westminster Family Practitioners Committee [1992] 1 AC 624

7. In Davy v Spelthorne B.C [1984] AC 264 at 276, Lord Wilberforce expressed the underlying principle as follows:

The principle remains intact that public authorities and public servants are, unless clearly exempted, answerable in the ordinary courts for wrongs done to individuals. But by an extension of remedies and a flexible procedure, it can be said that something resembling a system of public law has been developed. Before the expression “public lawâ€? can be used to deny a subject a right of action in the court of its choice, it must be related to a positive prescription of law, by statute or statutory rules. We have not yet reached the point at which mere characterization of a claim as a claim in public law is sufficient to exclude it from consideration by the ordinary courts: to permit this, would be to create a dual system of law with a rigidity and procedural hardship for plaintiffs which it was the purpose of the recent reforms to remove.

8. In Mercury Ltd. v Director General of Telecommunications, Lord Slynn of Hadley remarked;

[it was] … of particular importance to retain some flexibility, as the precise limits of what is called “public lawâ€? and what is called “private lawâ€? are by no means worked out… It has to be borne in mind that the overriding question is whether the proceedings constitute an abuse of process.

Irish Law

9. The Irish High Court declined, in O’Donnell v Dun Laoghaire C. C. [1991] ILRM 30, to follow O’Reilly v Mackman, and did so before the giving of judgment in Roy v Kensington, Chelsea and Westminster Family Practitioners Committee. The High Court found in O’Donnell v Dun Laoghaire C. C that it was not an abuse of process for a litigant to issue proceedings by way of plenary summons when judicial review might also be available.

10. Irish Judicial Review, like UK Judicial Review, is a revision of procedure for the availability of the old “State-side Ordersâ€?. Those orders were; Certiorari; Mandamus; Prohibition; Quo Warranto.

11. However, the Rules committee of the Irish Superior courts adopted, in Order 84 RSC, (SI 15/1986) the terms of Order 53 of the [UK] Supreme Court Rules. Each of these similar procedures can be said to represent a political vision appropriate to the respective nations.

12. Order 84 RSC extended the reliefs which might be claimed in conjunction with the old State-side orders of Certiorari, Mandamus, Prohibition and Quo Warranto to include declaratory relief and/or claims for damages or injunctive relief.

13. Both Order 53 and Order 84 (Order 84 R. 21 (1)) contain [tight] time (For certiorari, time runs from the date of the “proceedingâ€? [Order 84 R. 21 (2)]) limits for the issue of challenges on judicial review; applications must be made promptly and not later than 3 months generally or 6 months for certiorari. These are not limitation periods and are described as guidelines. (State (Kelly) v District Justice for Bandon [1947] I.R. 258; R. v Herrod Ex. P. Leeds C.C. [1976] Q.B. 540 at 547; De Roiste v Minister for Defence v [2001] 1 I.R. 190 at 221). Nevertheless, the effect is similar to time limits imposed by statute (Reflected in Order 84 R. 21 (3)) to defeat challenges by judicial review. (Smith v East Elloe R.D.C. [1956] AC 736)

14. There is a discretion in the court to extend the time. That discretion can only be exercised on the presentation of evidence (on affidavit usually) showing why it should be exercised.

15. Rule 26 (5) of Order 84 (RSC), consistent with S. 155 of the Chancery (Ireland) Act 1867 and Order 19 Rule 29 of RSC, makes it clear that declaratory relief (or injunction or damages), although available in Judicial Review, is (are) not particular to it. A plain reading of Order 84 Rule 18 shows little basis for claiming procedural exclusivity for it. That rule permits application for declaratory relief and injunction; it does not enjoin it. This is consistent with the judgments in Byrne v Ireland [1972] IR 241; Pesca Valentia Ltd. v Minister for Fisheries and Forestry [1985] IR 193 and Crotty v An Taoiseach [1987] IR 713.

16. The Rules of the Superior Courts, including Order 84, were introduced by Statutory Instrument 15 of 1986 on 1st October 1986. They were the outcome of the deliberations of the Superior Courts Rules Committee (made with the consent of the Minister for Justice) acting under the provisions of Section 36 of the Courts of Justice Act 1924, Section 68 of the Courts of Justice Act 1936, (as applied by Section 48 of the Courts (Supplemental Provisions) Act 1961) and Section 14 of the Courts (Supplemental Provisions) Act 1961. Previously, the Committee had made rules in 1962. The purpose of and subject matter of Rules of Court as promulgated by the Superior Courts Rules Committee is to provide for practice and procedure and not otherwise.

17. Significantly, Order 53 was codified in a statute, whereas Order 84 remains part only of a Statutory Instrument

18. Consequently, as subordinate legislation, and in the light of Article 15.2.1 of the Constitution of Ireland, Order 84 cannot be the source of a new exclusive procedure limiting the right to challenge administrative acts by plenary proceedings [such as under S. 155 of the Chancery (Ireland) Act 1867]. The ordinary time limit for declaratory actions prescribed by the Statute of Limitations is six years [and it is beyond the power of the Superior Court Rules Committee to prescribe otherwise]; Any argument to the contrary would, in effect, be an argument for a power in the Committee beyond its power to deal with pleading, practice or procedure.

19. Section 28 (8) of the Supreme Court of Judicature (Ireland) Act 1877 provided that the court was empowered to grant interlocutory relief “whenever it was just and convenient to do soâ€?. Injunctive relief may be either prohibitory or mandatory. Injunctive relief, although available in Judicial Review, is not particular to it.

20. That damages may be claimed in Judicial Review under the provisions of Order 84 of the RSC is not evidence that Order 84 has created in independent cause of action for damages.

21. The Irish courts, while not adopting a principle as broad as CPR r. 1.1 (1), have not been neglectful of the need for flexibility in procedure. In Meskell v CIE [1973] I.R. 121, the Supreme Court indicated that constitutional rights could be enforced even if the claim did not fit within any currently available jurisdiction or procedure, in law or in equity. In Shannon v Ireland [1984] 4 I.R. 343 at 350, the High Court varied the usual rules of procedure to assist in the making of a claim in vindication of a constitutional right. In Riordan v An Taoiseach (No. 2) [1999] 4 I.R. 337, Barrington J. further elucidated the principles to be applied, in favour of the broad jurisdiction of plenary proceedings as opposed to judicial review. Consonant with this view is the fact that breach of a constitutional right is a tort and the provisions of S. 11 of the Statute of Limitations 1957 apply. Breach of EU law, giving rise to a claim in damages, is a tort. and the provisions of S. 11 of the Statute of Limitations 1957 apply.

22. Although Rule 26 (5) of Order 84 (RSC) empowers the court to direct that proceedings commenced by way of judicial review should be pursued by plenary proceedings, there is no corresponding jurisdiction in the court to direct proceedings, commenced by way of plenary summons, be pursued by judicial review and, ipso facto, to apply the rules of judicial review to such proceedings.

23. In The State (Quinn) v Ryan [1965] IR 70 at 122 O’Dalaigh CJ, said:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.

24. In Byrne v Ireland [1972] IR 241 at 281 Walsh J said:

Where the People by the Constitution create rights against the State or impose duties on the State, a remedy to enforce those must be deemed to be also available.

THE VIEWS AND COMMENTS EXPRESSED HEREIN ARE THOSE OF, AND PERSONAL TO, THE WRITER, AND ARE INTENDED FOR GENERAL DISCUSSION PURPOSES ONLY. THEY ARE NOT INTENDED TO BE RELIED UPON BY ANY PARTY. NO REPRESENTATION OR WARRANTY IS GIVEN AS TO THE ACCURACY OR CORRECTNESS OF SAME, NOR ARE THEY REPRESENTED AS CONTAINING (OR AS A SUBSTITUTE FOR) LEGAL ADVICE OR ASSISTANCE. NO LIABILITY WHATSOEVER (WHETHER IN CONTRACT, NEGLIGENCE, NEGLIGENT MISSTATEMENT OR OTHERWISE AT ALL) IS ACCEPTED TO ANY PERSON ARISING OUT OF ANY RELIANCE ON THESE VIEWS.

Locus Standi (3)

Massachusetts v EPA

The USA is an amazing place (of extremes). They seem to have an Environmental Protection Agency (“EPA”) like ours unless I am mistaken.

Under the US Clean Air Act, the administrator of the Environmental Protection Agency is authorized to set emission standards for

any air pollutant” from motor vehicles or motor vehicle engines “which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.

The EPA was challenged by the Plaintiffs because it disputed whether it had power to set such emission standards.

The parties were:

Petitioners: the states of California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington, the cities of New York, Baltimore and Washington, D.C., the territory of American Samoa, and the organizations Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group.

Respondents: the Environmental Protection Agency, the Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, Utility Air Regulatory Group, and the states of Michigan, Alaska, Idaho, Kansas, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah.

The case turned on questions, essentially of power (“locus standiâ€? and statutory interpretation), including

1. The standing of the plaintiffs to bring the case to court.

2. Whether the EPA Administrator had authority to regulate carbon dioxide and other air pollutants associated with climate change under the Clean Air Act.

3. Whether the EPA Administrator could decline to issue emission standards for motor vehicles based on policy considerations.

The majority opinion of the US Supreme Court found for the petitioners and recognized they had standing. It found the Clean Air Act did give the EPA the authority to regulate motor vehicle emissions of greenhouse gases. On the third question the Court referred the issue back to the EPA for valid justification, finding the EPA’s current view lacking justification.

In typical form SCALIA J dissented. In his view, regardless of the importance of the issue, the Court should not attempt to second guess the view of the executive agency (EPA) in light of its experience and judgment.

This has something familiar about it.

Meanwhile, for an opinion piece on all this look HERE.

For a sombre review of what is at stake see HERE.

Is this a Teacake I see before me?

When Marks and Spencer litigate they go for the long haul.

In 1994 they extracted a concession from the British Revenue authorities that their “Teacakeâ€? was a cake and not a biscuit. Tax had been paid on the Teacakes, at the biscuit rate rather than the cake rate, from 1973 to 1995. M & S calculated the difference in the sum of £3.5 million and asked for its refund.

The Revenue said no; it would pay £88,440. Well, that made life easy for the lawyers for M & S; no dilemmas of judgement for them.

M & S took the case to the House of Lords and from there to the European Court of Justice. Now, the ECJ Advocate-General has supported M & S. The British Revenue argued that M & S had passed the tax on to the consumers and were not at a loss of the claimed £3.5 million. To give it to them would be “unjust enrichmentâ€?. The Advocate-General disagreed because the Revenue did not universally apply that principle across the tax code.

Where the Advocate-General goes the ECJ usually follows.

That Teacake is a dagger in the heart of Judicial Review.

In the first instance, the M & S “tax accountâ€? goes back for more than twenty years. Whither the Statute of Limitations?

In the second instance, where is the notion of “administrative certaintyâ€?? One of the mantras justifying the contraints on challenging State action, as applied in Judicial Review, is the alleged and presumed need for certainty in the making of administrative decisions. The notion runs, that it would be intolerable for administrative action to proceed and then be challenged at any time in the future. In Ireland, under Order 84 of the Rules of the Superior Courts, it is incumbent on an applicant that such a challenge be made as soon as possible and not later than 3 months after the impugned decision (or 6 months if seeking Certiorari).

Of course what is really revealed is the unsustainability of the assertion that State action should be beyond challenge (generally) with the passage of time. It should in fact be otherwise; many challenges can be launched only belatedly because the relevant facts are buried in the State bureaucracy and come to light very late.

Information for victims of Personal Injury (2)

…Experts

Frequently, technical matters must be proved through the use of oral evidence given by experts. Consulting engineers, mappers, doctors, actuaries, accountants, all fall into this category. The fees for these experts can be considerable. Their services are often required as early as exchange of pleadings period and they frequently require that those services be paid for before they are furnished.

Barristers

Barristers (“Counsel”) are members of a branch of the legal profession who have agreed among themselves not to accept instructions from litigants other than through the agency of a solicitor. They generally specialise in the representation of litigants in court. There is a further sub-division between senior counsel and junior counsel. Senior counsel have agreed among themselves not to accept court work unless a junior counsel is also instructed. They also decline to draft pleadings or other documents except to the extent of reading what the junior counsel has prepared and amending that or suggesting amendments. The senior counsel then appends his/her name to the document and charges a fee for so doing.

Doctors

Doctors who give evidence in court are by and large consultants. Professional and social eminence is an advantage to the doctor and his litigant client in a disagreement about the meaning or extent of a medical condition. These disagreements are rare. The plaintiff’s doctor will inevitably be the consultant from the hospital where the plaintiff was treated. The defendant’s doctor is specially hired by the defendant’s solicitor to examine the plaintiff and furnish the resultant medical report on the plaintiff to the defendant. The plaintiff is not entitled to a copy unless and until the parties exchange reports under a disclosure procedure before trial. It is in the plaintiff’s interest that all details of his/her complaints are related to the defendant’s doctor. The Irish Medical Organisation has agreed certain procedures to be adopted at these examinations. Questions related to liability should not be put by the defendant’s doctor to the plaintiff, and if put, need not be answered.

Private Investigators

While most medical symptoms are objectively verifiable, some are not. A defendant has difficulty rebutting a plaintiff’s evidence relating to this subjective element. One method of overcoming this is to hire a private investigator who will follow and observe the plaintiff in his/her daily activities to see if he/she is engaging in actions inconsistent with his/her complaints. If the plaintiff is doing so, photographs and even a video showing this may be produced in court. The private investigator will often have spoken to neighbours and even household members of the plaintiff, under pretext.

More about Evidence

The Courts will only act or make findings on request of the parties. This is a significant matter: it means the court is not an investigating body. The court’s findings or acts will be based upon the evidence furnished to the court. The burden of proof of a particular fact or assertion lies with the person asserting it. The person bringing a case before the court is called the PLAINTIFF, and the person against whom the case is made is called the DEFENDANT. Normally the BURDEN OF PROOF lies with the plaintiff. The judgement of the court will be made by the court on the basis of the balance of probability, taking into account the evidence adduced or presented to the court. If a defendant introduces no evidence, then the plaintiff’s PRIMA FACIE case as represented by the evidence will succeed. However, if the defendant introduces evidence to rebut the plaintiff’s case and, on balance, that evidence overwhelms the plaintiff’s evidence, the plaintiff will lose his/her case.

Written statements of evidence from witnesses are not acceptable to the Court. Every witness whose evidence is to be presented to the court must attend personally to give evidence orally on oath and he/she may be cross-examined on that evidence. Parties to an action may, by agreement, dispense with formal requirements in respect of matters to be proved, and agree them as if they were proved. This can save time and money. Despite this it is not a common practice in personal injury actions.

However, with reasonable frequency defendants do admit liability, leaving the assessment of damages as the remaining issue. This relieves the Plaintiff of the obligation of adducing evidence to prove liability. In pleadings, what is not denied is taken to be admitted and the admission often takes the form of an omission to deny the Plaintiff’s allegation of negligence or whatever.

There are a great many things that need to be done by a plaintiff to properly prosecute his/her case. The following is a check list of some of the main points:

1. Write an account of your accident noting all the facts including the names and addresses of witnesses, if any.

2. Minimise your loss.

3. Notify your solicitor if new information comes to hand, if there is a relevant change in your medical condition or when you return to work.

4. Notify your solicitor if you change your address or telephone number.

5. Always attend on time for medical examination.

6. If you cannot attend a medical examination, notify your solicitor in good time.

7. Gather in all invoices; receipts etc., evidencing your loss/expenditure. Give these to your solicitor.

8. Quote your solicitor’s reference in all correspondence, phone calls, or visits. Make appointments to see your solicitor rather than call in “when passing”.

10. Furnish details of receipts from Social Welfare to your solicitor.

Conflict

If a case goes to hearing before a judge the reasons for this are so numerous it is difficult to mention them all. Usually, the reason is a dispute as to what are the proper damages that should be paid to the plaintiff. The issue of liability is very important but very few defendants are so confident about the weakness of the plaintiff’s case that they think they can win on this issue.

Therefore, the plaintiff in going into the courtroom should appreciate that the basis of disagreement is often a very narrow area. Although the questioning of the plaintiff and his/her witnesses may not be confined to the area of disagreement, the defendant does not usually hope to discover something to his/her advantage in asking questions about the issue of liability.

The manner of the defendant’s lawyers will not show this. Part of the skill of a lawyer is to conceal his/her real feelings and goals. A performance will be produced and a show will be put on and usually no gain will be made except in the desired area, namely an attempt to show the judge that the effect of the injury on the plaintiff is not as great as the plaintiff makes out.

The fact is, it may and it may not. Some people are less disturbed by physical injury or disease than others. They are already motivated to get back on their feet and easily “put it behind them”. Others are not so fortunate. The plaintiff’s lawyers will have a chance of assessing this in their meetings with the plaintiff; the defendant’s lawyers do not get this chance. The system – an adversarial one – pushes them into a role where they are obliged to discount the plaintiff’s allegations let alone his/her bona fides. This sometimes leads them to suggest to a plaintiff that the consequence of what he/she is saying is to make a liar of the defendant or one or more witnesses for the defendant.

The proper reply to that is that the defendant or the defendant’s witness is mistaken. Lying is a subjective act. It is not usually within the knowledge of one witness what the subjective state of mind of another witness is.

When a witness for a party is called to give evidence by that party (the plaintiff is included in the category “witness”) the lawyer for the party calling the witness is restricted in the manner in which he/she may ask questions of the witness. The reason for this is that the lawyer is not there to give evidence, just to present it to the court. Leading questions
are not permitted to be asked by the lawyer, because the effect will closely resemble the articulation of the witness’ evidence by the lawyer. A leading question is one which suggests the answer desired by the questioner. A rough rule of thumb, but not an accurate statement of the matter, is that if the answer to the question is “yes” or “no”, then the question is likely to have been a leading question. The examination by a lawyer of his/her own witness is called EXAMINATION IN CHIEF.

The lawyer for the opposing party is not so restricted when permitted to CROSS EXAMINE the witness for the opposing party at the end of the examination in chief. Leading questions are permitted. Abuse of the witness by the cross-examiner should not be permitted by the judge. The lawyer will use the cross examination to undermine the evidence of the witness. This rarely involves an accusation that the witness is telling lies. It usually takes the form of showing the poor understanding which the witness has of the facts to which the witness has testified and the implications of that evidence. Sometimes evidence is given by a witness on cross examination which did not come out in the examination in chief and which is helpful to the client of the cross examining lawyer and is of more significance to the overall issue than the favourable evidence given by that witness for the benefit of the party by whom the witness was called.

Costs – “Costs follow the Cause”

A successful party usually (but not inevitably) is awarded costs against the unsuccessful party by the judge who determines the issue between the parties. It should be noted that a defendant can be successful!

The responsibility, however, for paying professional fees to the solicitor, barristers and experts for all work done in a litigant’s case, and for any outlay which is incurred on behalf of a litigant, rests with the litigant. In short, you must pay your way and the defendant must pay his way. This is the case both before and after the awarding of costs by the judge. A plaintiff’s solicitor has a claim against his client (successful or not). The client in turn, if successful in his/her action, has a claim over for part of these costs against the unsuccessful party.

However, the costs which the judge may award to a successful plaintiff (or a successful defendant) do not amount to a full indemnity (that is they will not fully compensate the party for all the costs and expenses that will have been incurred). The amount of such recoverable costs are known as PARTY AND PARTY costs. The solicitor’s entitlement against his/her own client is known as SOLICITOR AND CLIENT costs.

If a party is awarded costs on a party and party basis, it will usually include such witnesses’ expenses as the court – through TAXATION of costs procedure – will allow. There are fairly standard allowances which the TAXING MASTER makes for witnesses, and these are usually the minimum sums. A party may (more than likely will) have to pay sums out of the compensation awarded, or otherwise out of that party’s own pocket for witnesses’ and in particular, expert witnesses’ expenses.

It is not unknown in Ireland for the solicitor for the plaintiff to incur considerable expense on behalf of his/her client without being paid until the successful conclusion of the action. If the action does not end in success the solicitor will often have to take the loss. The current civil “Legal Aid” scheme in Ireland does not extend to personal injury actions (and is not working anyway).

Since 2004 a very important step should be taken by an injured person. Within two months of the injury the victim should deliver (through a solicitor) a letter of claim on the defendant. To fail to do this will put in danger the right to recover costs against the unsuccessful defendant.

After the Judgement

Following a decision by the court in favour of a Plaintiff, the defendant may pay the award (and the costs) or he/she may appeal. If he/she appeals from the District Court, the appeal is heard by the Circuit Court judge on the appropriate circuit. If he/she appeals from the Circuit Court, the appeal is heard by the High Court. If he/she appeals from the High Court, the appeal is heard by the Supreme court.

The appeals in the Circuit and High Courts are re-hearings involving the giving of oral evidence by the various witnesses all over again. Not so in the Supreme Court, which is furnished with five full transcripts of the evidence given in the High Court. A transcript is the typewritten verbatim record of everything that was said in the High Court, not only by the witnesses, but by the lawyers and judge also. The costs of these transcripts are considerable as are the other costs of appeal, such as stamp duties and Counsels’ fees.

The Supreme Court might decide the issues upon which the appeal is based and find in favour of the APPELLANT. That will normally be the end of the case. However, they might decide that something happened in the High Court that was so unsatisfactory that a re-trial was required. The case will be sent back down to the High Court to be tried all over again. With this prospect, because of the costs involved, the parties may decide to settle the action, or in the case of the Plaintiff, to give up, assuming the defendant offers reasonable terms on the issue of costs.

However it comes about, a finding in favour of a plaintiff results in the issue of a piece of paper stating that he/she, the plaintiff, is entitled to a stated sum of money from the defendant. This is a far cry from actually collecting that money. This is the reason that ascertaining whether a defendant was insured can be very important. Alternatively, and more practically, it is important that the defendant have sufficient assets to meet the judgement.

Ireland’s privacy ranking

Ireland’s report card does not read well in the Privacy International “2007 International Privacy Rankingâ€?:-

Systemic failure to uphold safeguards.

See HERE for the report.

It lists the following remarks on Ireland:

1. No explicit right to privacy in constitution, Supreme Court has seen an implicit right in Article 40.3.1

2. Comprehensive privacy law, with broad exemptions for security, tax, and combating crime; misuse of data is also criminalized

3. Improvements in the law went into effect in 2007

4. High Court imposed safeguards on the disclosure of identity of suspected file-sharers

5. One of the longest data retention regimes in Europe; currently pursuing legal action on this issue to ensure the government has the ability to uphold its retention regime

6. Planning Automatic Number Plate Recognition

7. Extensive data matching and use of unique identifiers

8. While the Garda are prohibited from collecting personal identification numbers from nationals, they may do so in relation to non-EU nationals

9. A public services card is being developed

10. No plans for fingerprints in biometric passports

Digital Rights Ireland report HERE on the ranking and make provision for emailing the Minister for Justice, Equality and Law Reform to query what he is doing on the issues raised.

Information for victims of Personal Injury (1)

In Ireland, in the event of injury, proper compensation can be recovered only by consulting a solicitor. There are many solicitors in Ireland competent to represent a claimant in most personal injury cases.

The existence of the Personal Injuries Assessment Board (“PIAB”) should not distract from the need to prepare for the potential issuing of proceedings in court to recover compensation.

If the proper steps are not taken in timely fashion there may be an unsatisfactory ending to the efforts to vindicate your rights. The fact that most personal injury litigation ends satisfactorily, more or less, for plaintiffs, may conceal the fact that the difficulties facing a plaintiff are often considerable. They are so significant that the claim may never become a lawsuit.

Only a very small proportion of lawsuits are commenced in the absence of knowledge of the necessary evidence that will entitle the plaintiff to succeed. The spur to commencement of litigation is therefore, knowledge. Without the knowledge of the connection between the injury and the defendant there will be no, or no sufficient, evidence. Without the knowledge of the existence of the evidence, it cannot be gathered.

In addition to knowledge, speed is often required. A solicitor should be consulted as soon as possible. With delay, the location of the accident may change. In workplace accidents workers’ safety representatives should be prepared, on behalf of injured companions, to collect items of evidence immediately after an accident at a workplace.

The collection of the evidence should be approached as though a report were to be written. Date, time, location, lighting, weather (if outdoors) should be noted. Persons present or attending after the accident should be noted. Nothing should be moved until measurements are made and samples (if appropriate) taken. If machinery is involved, the registration number or other identifying mark of the machine should be noted. If possible, photographs of the scene should be taken from as many locations as possible. If samples of substances are taken, (carefully!) they should be placed in glass bottle containers with screw caps and luggage tags attached for identification. It is not always possible to know what evidence is required on behalf of the injured worker at such an early stage of the business, therefore the emphasis should be on thoroughness.

Instructing the Solicitor

The instructions to the solicitor need not be given personally by the injured person. The spouse or other family member of the injured person may give the instructions on behalf of the victim. They should consist of positive confirmation that the solicitor is to act for the victim and to do what is proper and reasonable to secure compensation in due course.

The solicitor will usually hire technical expertise, often a consulting engineer, to attend at the scene of the accident. The preliminary work of the safety representative in gathering evidence will be very useful at this point.

The solicitor is often presented with a difficult decision when the time comes to issue proceedings. The actual value of a case or, put another way, the amount of reasonable compensation which should be paid to the injured worker is not easy to assess even for experts at the final stages of the proceedings. It is doubly difficult at the beginning. Yet, this unknown and unknowable, sum of money determines whether the proceedings should be issued in the High Court, the Circuit Court or the District Court. This issue is called “jurisdiction”.

Jurisdiction

For civil matters (as opposed to criminal matters) the hearing of cases is apportioned between:

(a) The District Court (maximum jurisdiction EUR6,348.69 compensation)
(b) The Circuit Court (maximum jurisdiction EUR38,092.14 compensation)
(c) The High Court (unlimited jurisdiction )
(d) The Supreme Court (appeals only)

From the above it can be seen that if compensation in excess of EUR38,092.14 is appropriate the proceedings should be in the High Court. If the compensation falls in the range EUR6,348.6 – EUR38,092.14, it should be in the Circuit Court and below EUR6,348.6 it should be in the District Court.

Jurisdiction has a geographical element as well. In the Circuit and District courts the case should be taken in the court having jurisdiction over the place where the accident happened or where the Defendant resides.

Commencement of Proceedings

The solicitor commences by issuing an originating document. In the High Court this is called a Personal Injury Summons, in the Circuit Court a Civil Summons, and in the District Court a Civil Process. This contains a brief account of the facts of the accident and a detailed account of your allegations of negligence or whatever legal principle you base your claim on and also a general account of your injuries A copy of this is served on the Defendant.

The Defendant is then at liberty to enter an appearance in the relevant court office, or not, as he/she chooses. If no appearance is entered in the permitted time, the Plaintiff is at liberty to forthwith apply to the court for judgement in default. In short, you the Plaintiff win by a walk-over if the court gives judgement in your favour.

Usually an appearance is entered. After the entry of appearanc, the Defendant is at liberty to serve a defence, or not, as he/she chooses. If this is not done, you, the Plaintiff are at liberty to apply to the court for judgement in default. Again you have an opportunity to win by a walk-over.

In reality, very few cases are won on a walk-over and it may be very bad news if it happens to you. It usually means that neither the defendant nor any third party, such as an insurance company, cared whether you got judgement against them or not. This will be the case if the defendant is an insolvent company or is a person of no property and in either case is uninsured. Currently, employers’ liability insurance is not compulsory, unlike motor insurance. It is relatively easy for an insurance company to refuse to indemnify because of some breach of condition of the insurance.

Pleadings

Delays in getting medical reports slow down the exchange of pleadings and indeed the speed at which the matter may be brought on for trial.

Your injuries may not have settled down. That is, you may not have fully recovered, or the surgeon may feel that further adverse sequalae (bad consequences) will appear in the future and may be investigating this aspect of the matter.

If the defendant has or should have insurance cover there may be difficulties about ascertaining the extent or existence of this, and it may be prudent to put off the hearing of the action pending clarifying these matters.

The defendant may be deliberately delaying the hearing.

You, the plaintiff, may be careless of your own interest and not have furnished your solicitor with a proper account of the claim, or receipted accounts for payments made by you, recovery of which is sought from the defendant.

Assuming things run their usual course the defendant will serve his defence and you, the Plaintiff, will be at liberty to set the action down for hearing. When this is done in the Circuit Court in Dublin a date for the hearing is immediately assigned to the case. Depending on which Circuit the action is being taken in, anything up to eight or ten weeks may elapse before the hearing of the action. (The circuit is an administrative district roughly based on the four provinces). In the High Court in Dublin, following the setting down of the action it is possible to get a hearing date approximately six to eight weeks later.

Negotiation

If the opportunity arises the solicitor will negotiate on your behalf and help to achieve a settlement of the case before it comes to court. The solicitor will arrange medical examinations so that doctors’ reports are furnished, allowing your lawyer/s to assess the value of your case in relation to your personal injuries. Communications by you to your solicitor are privileged, that is, they may not and will not be divulged without your permission.

The solicitor should notify you to the best of his/her judgement of the prospects of success or otherwise if the action were to come on for hearing before a judge. The solicitor will frequently, in occupational injuries cases, arrange an inspection and report by an expert (such as an engineer). The evidence to be given by this expert may well determine the outcome of the case.

More about Pleadings

In order to fully define the ISSUES between the parties, PLEADINGS are exchanged between the parties. These pleadings concisely set out, in the case of the plaintiff, the wrong alleged to have been done by the defendant to the plaintiff; the loss alleged to have been suffered through that wrong; and the consequences thereof.

In the case of the defendant, his pleadings are intended to show what part of the claim of the plaintiff he admits or denies. What he does not deny is taken to be admitted, so frequently plaintiffs are shocked and surprised to see certain denials in defendants’ pleadings. They sometimes deny the undeniable! However, these are for the purpose of putting the plaintiff on full proof of those matters in court when the case comes for hearing. Even where the plaintiff will have no problem establishing the defendant’s liability, this issue is, often, still left to be proved by the plaintiff as a tactic of negotiation.

Statute of Limitations

There is a two year time limit within which proceedings for personal injury actions must (usually) be issued. The time begins to run from the date the injury was suffered. Thereafter the claim is barred under the Statute of Limitations 1957, as amended, and effectively lost. No lay person should ever make an uninformed decision on a question involving the Statute of Limitations. No lawyer should do so without considerable investigation of the matter. There are exceptions for infants and persons who do not, and cannot reasonably, know either that they have been injured and/or the identity of the person who injured them.

Damages

Damages is another name for the compensation you may be entitled to in order to make good your losses.You are in law obliged to minimise your loss. If you are injured you will only be allowed your loss of wages or income for the minimum period you would have been entitled to remain off work, i.e. for as long a period as your doctor so certifies.

Damage is divided into two categories: GENERAL DAMAGES, which is a sum of money given to a plaintiff which in the estimate of a judge represents – insofar as money can – the proper compensation for the plaintiff’s personal injury. SPECIAL DAMAGE is all other damage flowing from the defendant’s wrongdoing and normally and in principle fully ascertainable. Hospital expenses and loss of wages come under this heading. COMPENSATION is the total of general and special damage. The intended principle is that you should be put in the same position, insofar as money can, as you were before the wrong was suffered. Interest on the compensation only runs from the time proceedings are issued. In practice, such interest will only be quantified if the case goes to a hearing.

Settlement

Most claims are settled, generally before setting down. Of those that go to court, most are settled about the time the defendant should or has filed his/her Defence. The majority of the rest settle “at the door of the court”. There are a number of reasons for this. Part of the pleadings may have involved the making of a LODGEMENT by the defendant. This may be accepted by the victim and that is the end of the dispute.

The court system could not deal with a situation where every case needed a hearing. It is cheaper for a defendant to settle before costs of a hearing are incurred.

If, in the opinion of the defendant, you are making too much of your loss or injury the defendant may calculate that the stress and pressure of an imminent court appearance can make the defendant’s offers appear more reasonable or attractive. Conversely, the defendant and his advisers may themselves increase the offer under the same stress and pressure.

(TO BE CONTINUED)…

Locus Standi (2)

Locus Standi (“standingâ€?) expresses the obligation on a litigant to show (s)he has an interest in the subject matter of the dispute in legal proceedings.

The rules as to standing vary from jurisdiction to jurisdiction and from issue to issue. The rules may be defined by statute or may be found in the case law.

The parties to a dispute arising from a road traffic accident or a contract will normally have no difficulty showing standing.

The difficulties arise in areas such as planning law, environmental law, or constitutional law.

In The State (Lynch) v Cooney [1982] IR 337 at page 369 Walsh J, stated in the Supreme Court:

The question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is a greater importance to be attached to the facts because it is only by examination of the facts that the Court can come to a decision as to whether there is a sufficient interest in the matter to which the application relates.

In planning matters the leading case is Lancefort Ltd. v. An Bord Pleanala (No.2) [1999] 2 IR 270. There, the Supreme Court, following an examination of the merits of the applicant’s case against the respondent, declined to accord locus standi to the applicant.

In Ireland there is a broad approach to standing in constitutional law cases, exemplified in Horgan v An Taoiseach [2003] 2 ILRM 357, where the court described the Plaintiff’s case on standing thus;

At the outset, counsel on behalf of the plaintiff submits that the plaintiff have (sic) locus standi to seek the relief sought in these proceedings as a citizen of Ireland, relying on the approach adopted by the High Court and Supreme Court in Crotty v. An Taoiseach [1987] I.R. 713, McKenna v. An Taoiseach (No. 2) [1995] I.R. 10 and McGimpsey v. Ireland [1988] I.R. 567.

In Mulcreevy v the Minister for Environment, Heritage and Local Government and Dun Laoghaire-Rathdown County Council [2004] 1 IR 72, the Chief Justice said in the Supreme Court:

While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.

…I would, accordingly, agree with the conclusion of the learned trial judge that the applicant had locus standi to institute the present proceedings.

In Mulcreevy, the Defendants were constructing a motorway partially on the site of some archeological remains of importance. Effectively, the courts acknowledge that there will be no challenges to such threats to the fabric of Ireland’s history if the standing of public interest parties is not recognized and consequent protection to the historical residue is secured thereby. (The High Court declined to permit the application for judicial review on the grounds of delay; the Supreme Court reversed in circumstances where he applicant had shown a high probability of success if his application went ahead.)

O’Higgins C.J. said in Cahill v. Sutton [1980] I.R. 269 at p. 276:-.

This Court’s jurisdiction, and that of the High Court, to decide questions concerning the validity of laws passed by the Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without the exercise of such a jurisdiction, the checks and balances of the Constitution would cease to operate and those rights and liberties which are both the heritage and the mark of free men would be endangered. However, the jurisdiction should be exercised for the purpose for which it was conferred- in protection of the Constitution and of the rights and liberties thereby conferred. Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busybody and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizen’s shield and protection becoming debased and devalued.

There are limits to the Irish broad approach to standing. In Incorporated Law Society of Ireland v Carroll [1995] 3 IR 145, the Plaintiff (a solicitors’ representative body) was denied standing in an application to restrain the Defendant from holding himself out as a solicitor.

In Construction Industry Federation v Dublin City Council [2005] 2 ILRM 256,
the Supreme Court refused locus standi to the applicant, remarking

Unlike many of the cases in which parties with no personal or direct interest have been granted locus standi there is no evidence before the Court that, in the absence of the purported challenge by the Appellant, there would have been no other challenger. Indeed the evidence appears to be to the contrary.

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