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The Constituency Commission

The High Court enjoined the Oireachtas to URGENTLY revise the constituencies.

By that time the Minister for the Environment, Hertiage and Local Government had established the usual Constituency Commission to furnish a report on the necessary changes to be made to some constituencies.

Presumably it URGENTLY asked for submissions from interested parties. Presumably they URGENTLY delivered those submissions.

Now the Commission will URGENTLY submit a report to the Minister.

In the middle of all this urgency we can see that there is no urgency in fact. The Commission has six months to do its work, and presumably, following form, will use all of the time to do that.

Where is it written that the world of politics stands still for this kind of process?

Irish Class Actions?

Ireland is beginning to seriously deviate from the legal procedures available in Britain.

If the foot and mouth outbreak arose from the Pirbright laboratory site there will be litigation. That litigation will, according to all accounts, be a “class actionâ€?.

In the UK, the procedure to bring that about is a Group Litigation Order. The procedure is detailed at paragraph 19.11 of Section A of the UK Civil Procedure Rules.

The Irish legal system lacks this procedure. It is a procedure economical in time and money and it is difficult to know why it has not been adopted here.

Muslim Marriages in Ireland

1. This post is a tentative, partial, review of the legal status of some Muslim marriages in Ireland.

2. The civil and religious laws of some (indeed many) Muslim countries permit polygamy.

3. Under common law polygamy is not lawful in Ireland. That is to say, a marriage contracted in Ireland is monogamous or it is not a valid marriage. A person so married who partakes in a valid ceremony of marriage while the first marriage is still subsisting, will commit the crime of bigamy.

4. Irish law on polygamy is, reputedly, as set out by Lord Penzance in Hyde v Hyde and Woodmansee [1886] LR 1 P&D 130 where marriage was defined in these terms (at 133):

I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

And at p. 138 he said..

This court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons which people living under the sanction of such unions may have created for themselves. All that is intended to be here decided is that as between each other they are not entitled to the remedies, the adjudication or the relief of the matrimonial law of England.

5. In that case the husband had petitioned for the dissolution of a Mormon marriage (permitting him to take more than one wife). His claim for matrimonial relief was rejected. (Neither party had contracted a second marriage; the objection was to the fact that the marriage was potentially polygamous).

6. Of course there have been very significant changes in the law of Britain and Ireland since the judgment in Hyde v Hyde. Each jurisdiction has made provision for divorce. Thus, a modern marriage in either jurisdiction does not conform to Lord Penzance’s definition of a marriage. It is very likely, on a proper interpretation of Hyde v Hyde that it cannot, by that token alone, be declaratory of the law in Ireland.

7. The UK, however, recognising the serious difficulties that the law as framed by Hyde v Hyde caused to some Muslims, particularly women, took steps to reduce those difficulties and expressly varied its law with Section 47 (1) of the Matrimonial Causes Act 1973 (amending the Matrimonial Proceedings (Polygamous Marriages) Act 1972), subsequently, again, changing the law with Section 5 of the Private International Law (Miscellaneous Provision) Act 1995. The Section reads:

Validity in English law of potentially polygamous marriages.

5. -(1)A marriage entered into outside England and Wales between parties neither of whom is already married is not void under the law of England and Wales on the ground that it is entered into under a law which permits polygamy and that either party is domiciled in England and Wales.

(2) This section does not affect the determination of the validity of marriage by reference to the law of another country to the extent that it falls to be so determined in accordance with the rules of private international law.

8. In Ireland, under Irish conflict of laws, the law of the place of celebration prescribes the nature and incidents of a marriage. (Brook v Brook 9 H.L.C. 193) However, the law of domicile determines the capacity to marry. If under the law of domicile polygamy is not permitted, the polygamous marriage, valid under the law of the place of celebration will not be valid under the law of domicile.

9. In the case of a marriage where the law of domicile and the law of the place of celebration are the same and polygamy is permitted in that jurisdiction, the marriage will be polygamous and valid in Irish law. If the parties then change their domicile by choice and gain a domicile where monogamy only is permitted, the marriage will, in the absence of any further marriage on the part of either person, be deemed to be monogamous.
Nevertheless, as seen in Bibi v. Chief Adjudication Officer [1997] EWCA Civ 1957 (25th June, 1997) difficulties remained. A widow of a deceased Bangladeshi man was denied Widowed Mother’s Allowance under section 25 of the Social Security Act 1975. She was the deceased’s first wife, having married him in Bangladesh in 1966. Her husband had been born in Bangladesh and registered as a British citizen on 20 September 1961 after working in the United Kingdom. The deceased married again, in 1969, in Bangladesh, lawfully so, in accordance with the law of that place. The applicant and the deceased travelled together to Britain and had a child or children there. The husband died in 1988. The court, applying Regulation 2 (1) of the Social Security and Family Allowances (Polygamous Marriage) Regulations 1975 upheld the refusal of the allowance to the widow. The law of his domicile was deemed to be Pakistan rather than Britain. (If Britain had been his deemed domicile the marriage would have been presumed to be monogamous regardless of the law of the place of celebration, i.e. Pakistan). See (Hussain v Hussain [1983] Fam. 26)

10. In Imam Din v National Assistance Board [1967] 2 QB 213. this view of matters was shown to be a one way street. The appellant was ordered to pay maintenance to his spouse and children. His spouse was his second wife, they having married in a polygamous marriage valid according to Muslim law. The first spouse was still living. On marrying the second time he traveled with his new spouse and their children to the UK where he deserted them, leaving them destitute. Under Section 42 of the National Assistance Act 1948 he was required to maintain his wife and his children. The fact that the marriage was polygamous did not prevent the court construing the Act that the ‘wife’ was to include the wife of the polygamous marriage.

11. Despite the changes in the UK there are still difficulties for Muslims seeking matrimonial and certainly Social Welfare benefits from the UK State.

13. Given that Ireland has not made any effort to adapt to the social needs of Muslims, some of them, particularly women, will find their position unenviable and considerably more difficult relative even to the UK.

Beating up Burglars

This post is for readers who missed my interview on Radio Q 102 on 7th August 2007.(Like Cicero, I take the oppourtunity to say what I would like to have said, as opposed to what I said).

Q. WHAT RIGHT OF SELF DEFENCE HAS A HOUSEHOLDER WHEN CONFRONTED BY A BURGLAR?

A. The right is found in Section 18 of the Non-Fatal Offences against the Person Act 1997.

Q. WHAT DO YOU SAY TO THE PROPOSAL OF MR. McDOWELL THAT THE PROSECUTION HAVE THE BURDEN OF PROVING USE OF EXCESSIVE FORCE BY A HOUSEHOLDER?

A. That is the burden on a prosecutor currently. Generally, a prosecutor must prove everything; a defendant need prove nothing. The Court of Criminal Appeal, in DPP v Barnes (December 2006) stipulated that, whatever the law in Ireland prior to the adoption of the Constitution, it is not lawful, in Ireland, to kill a burglar qua burglar.

Q. WHAT IF THE HOUSEHOLDER SETS HIS DOG ON THE BURGLAR AND THE DOG KILLS THE BURGLAR?

A. Some dog! If it qualifies for criminal legal aid I will represent it. Generally speaking it is not sensible to talk of attacking burglars, especially in cases of old people encountering them. By analogy, we have an unarmed police force because if the police were armed more police would be injured accidentally in the locker room than by criminals.

The Tort of Negligence

The history of the tort of Negligence in Ireland and Britain is long.

The decision of Lord Atkins, in Donoghue v Stevenson [1932] AC 562, settled the principles for a very long time.

The most recent re-statement, in Ireland, of the principles to be applied by a court in determining whether liability in negligence should lie, occurred in Glencar Exploration Ltd, v Mayo County Council [2002] ILRM 481

As the Supreme Court noted in Glencar, it did not see it as desirable to establish liability in negligence for pure economic loss in the absence of a liability in contract. It noted the specific exception to this principle; where economic loss occurs due to negligent misstatement. (This principle was first established in Hedley Byrne & Co. Ltd. v Heller and Partners Ltd. [1964] AC 465).

In Glencar, the defendant local authority granted exploration rights for gold in County Mayo to the plaintiff. After the plaintiff expended a considerable sum on exploration the defendant decided not to grant any mining rights in Mayo. The court found that the defendant’s decision was unreasonable but declined to find the defendant liable to the plaintiff. (The plaintiff’s loss was money only. The plaintiff could not point to a contract or other source of entitlement whereby it could claim, other than in negligence, against the defendant. In these circumstances the chances of the plaintiff being successful were always very remote. The claim in negligence was a case of clutching at straws).

The Supreme Court went on add the somewhat redundant requirement that the court should find a liability where it “is just and reasonableâ€? to do so.

See Keogh v ESB & Eircom Ltd. IEHC [2005] for an example of a finding of negligence post Glencar.

In Keogh, the plaintiff was electrocuted as she was talking on the telephone. The electricity supply company had sited a transformer near her house. Due to a fault in the transformer her house was made “liveâ€? with the consequence that she was injured. (The plaintiff herself had no knowledge or recollection of the incident in which she was injured; essentially the evidence came from her partner who witnessed the event and the plaintiff’s litigation engineer who investigated the site).

As an example of a successful claim for negligent misstatement it would be hard to find a better one, on the facts, than Walsh v Jones Lang Lasalle [2007] IEHC

The defendant auctioneers issued a brochure relating to a property in Dublin for which they were the selling agents. Unfortunately, they were inaccurate in the measurements they gave for the building. Having bought the building the defendant found it was of a smaller size than he had been led to believe and of lesser value than he had paid. (There was, of course, no basis for him making a claim in contract; there was no contract between the plaintiff and the defendant).

Compensation

What amount of compensation will a plaintiff get from a court in an Irish personal injury claim?

The amount depends on the individual case. Damages are usually assessed by reference to “General Damagesâ€? and “Special Damagesâ€?. The former is to compensate for pain and suffering and the latter is to cover expenses and actual losses.

A stockbroker with a substantial income would undoubtedly suffer considerable losses under the “Special Damagesâ€? head, absolutely and relatively. After all, if a claimant has suffered six months loss of earnings as a result of personal injury, a highly paid individual will have lost a greater sum in that six months than an individual of lesser earnings.

However, the pain and suffering of a stockbroker is not of greater “valueâ€? than the pain and suffering of a binman (a garbage collector).

Thus, where the injuries of the stockbroker and the binman are comparable, they will, in principle, receive compensation of equivalent sums for pain and suffering.

In Sinnott v Quinnsworth [1984] ILRM 523 the Irish Supreme Court established a ceiling on the amount a plaintiff could be awarded in General Damages, that is, for pain and suffering. It fixed the sum, in 1984 at IR£150,000.

That, inevitably, began to be eroded with the passage of time.

Thus, in McEneaney v Monaghan County Council [2001] IEHC the court adjusted the ceiling to IR£300,000.

There was an indication from the Supreme Court in Nolan v Murphy [2005] IESC that the judge in McEneaney had, indeed, been conservative in the ceiling he applied in that case and in Nolan the Supreme Court, while reducing the sum awarded by the jury in the High Court awarded €350,000.

Thus, currently, the most that a defendant will have to pay, in Ireland, for personal injury (including psychological injury), regardless of severity of the injury, is approximately €350,000.

Rumsfeld’s Holiday

Donald Rumsfeld lives in Illinois and the American Civil Liberties Union and Human Rights First issued civil proceedings to hold him to account for his responsibility for the torture inflicted on a number of his victims, including former detainees in Guantanamo.

Donald Rumsfeld asserted in the proceedings, successfully, that he was immune from being held responsible for the torture of the victims. He was successful because a US Federal judge agreed with his view of the applicability (or non-applicability) of the US Constitution and/or, international law, to the facts. He was not immune because he did not know, or could not reasonably have known of the torture; that issue was never reached. He was, he contended, immune because he was executing State policy.

Of course his submissions were on a very narrow point. The claim was in civil law and the victims were not US citizens.

Sgt Lawrence Hutchins found the results are different when the prosecution is criminal notwithstanding his victim was an Iraqi and the crime was committed in Iraq..

This suggests a double standard; many torture victims in US-controlled Iraq died as a consequence of their injuries. Why does Lawrence Hutchins not get the benefit of an asserted immunity if Donald is entitled to it?

That is, of course, the wrong question. The question is; why should Donald have an immunity if Lawrence Hutchins is not entitled to one?

The extra ingredient in a criminal prosecution is a prosecutor. For reasons of State there is no prosecution of Donald because there is no prosecutor.

What, however, if Donald goes on holiday?

In 1998, General Pinochet the former Chilean tyrant went to London for medical treatment. Judge Baltasar Garzon of Spain issued a warrant for his arrest and sent it to Interpol. It was backed by a London magistrate and Pinochet was arrested with a view to extradition to Spain.

The charge Pinochet was facing was torture. Spain, Britain and Chile were all signatories to and had ratified the UN Convention on Torture [1984]. The convention provides;

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.

The UK House of Lords confirmed the validity of the arrest of General Pinochet, identifying the breach of the UN Convention on Torture as the crime and recognising it as a valid ground for the Spanish and British judicial assumption of jurisdiction over him.

The House of Lords addressed the very point upon which Donald Rumsfeld successfully claimed to have an immunity The Lords found that it was State-backed torture that was the subject matter of the UN Convention on Torture. If Rumsfeld’s (and Pinochet’s) plea was correct it would mean the UN Convention on Torture was of no effect. Therefore, it could not be a defence to a charge of torture to plead State policy.

The USA, like Spain, Britain, Chile and many other countries has undertaken to comply with the UN Convention on Torture. The USA has subscribed to the Universal Declaration of Human Rights; Article 7 of the International Covenant on Civil and Political Rights; Article 5 (2) of the American Convention on Human Rights; Article 17 of Geneva Convention III [1949]; Article 32 of Geneva Convention IV and Geneva Protocol I [1977].

These all outlaw torture.

There is a connection between criminal and civil liability: one (criminal) implies the other (civil).

Donald, take your holidays in your back garden.

Holiday Hell?

Mount Etna has recently erupted and, currently, I do not know if there is a danger of pyroclastic flow onto the happy tourists of Catania in Sicily.

Holiday disappointments do not usually come in such dramatic form as pyroclastic flows, being generally confined to poor accommodation, missed flights, poor food or misrepresentations about the state of completion of the hotel etc.

(Of course, travel itself can be a revelation, as witnessed by an apochryphal traveller’s sour remark on his return from India, “Myrna doesn’t like povertyâ€? (Myrna being his spouse and travelling companion).

Myrna aside, the economic benefits of mass tourism (this post is ignoring environmental issues) has led to special legal provisions to protect some holiday consumers. (more…)

Cork Debs: Whose Agent?

It is reported that approximately €196,000 paid by Cork teenagers for their Debs’ dance or dances, has gone missing.

They paid the money to one individual and it appears he did not pay it to the relevant hotel.

It is clear that he was a middleman. He was not providing the facilities for the dance himself; the hotel was dong that. He was not funding the facilities; the teenagers were doing that.

The role of the hotel was fully known to the teenagers (they knew the location of the intended dance).

It is, therefore a pertinent question, as to whose agent the middleman was. If he was acting as an agent for the hotel, express or implied, or if he had ostensible (not to speak of actual) authority to act as agent for the hotel, then, of course he was the hotel’s agent.

If he was not held out as the agent of the hotel or permitted without contradiction (by the hotel) to represent himself as the agent of the hotel, then it would seem he was the agent of the teenagers.

The latter is, on the known facts, unlikely. They already had an agent or agents; some of the teenagers were themselves organising the dance. It is reported that, on approaching the hotel those teenager agents were directed by the hotel to the middleman.

On those facts, prima facie, he was the agent for the hotel.

A number of rules of agency law apply to these circumstances:

1. Where the money of a third party is received by an agent while acting within the scope of his authority or in respect of a transaction ratified by the principal, and misapplied by him, or is received by the principal and misapplied by the agent, the principal is liable to repay the third party.

2. Where money is paid to an agent for the use of his principal, and the circumstances are such that the person paying the money is entitled to recover it back, the agent is personally liable to repay such money in the following cases:

a. Where the agent contracts or acts personally, and the money is paid to him in respect or pursuant to that contract or transaction;

b. Where the money is obtained by duress or by means of any fraud or wrongful act to which the agent is party or privy.

c. Where the money is paid under a mistake of fact, or under duress or in consequence of some fraud or wrongful act to which the agent is not party, or generally under circumstances in which an immediate right of recovery arises, and repayment is demanded of the agent, or notice is given to him of the intention of the payer to demand repayment, before he has in good faith paid the money over to, or otherwise dealt to his detriment with, the principal in the belief that the payment was a good and valid payment.

d. Where the receipt of the money is outside the actual and apparent authority of the agent and is not ratified by the principal.

Rule 1 is straightforward: possession by the agent is possession by the principal. In short, if the money is misapplied, it is the money of the principal that is misapplied, not the money of the third party.

Rule 2 seems not to apply to the facts of the case.

NOTE; I am indebted to the author and publishers of “Bowstead & Reynolds on Agency” 18th Ed. [2006] Sweet & Maxwell for the law cited in this post.

Relevant Evidence

In a court of law the only admissible evidence is relevant evidence. Relevant evidence is pertinent evidence. Whether something is pertinent or not depends on the matters required to be proved (defined by the issues).

While making allowances for the more or less incoherence of any witness, it is the function of the court (and the advocates) to address only the issue or issues in the case and, for the advocates, to only adduce evidence directed to those issues. All other evidence is irrelevant.

If irrelevant evidence is admitted and received by the court, grounds for reversal on appeal exist.

The purpose of a trial is to do justice between the parties. This is especially so in a criminal prosecution. This overriding objective is so strong that the court will on occasion, exclude even relevant evidence (People (AG) v O’Brien [1965] IR 142)

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