Categories
Law

Lunching With Sharks

I blundered into a lunchtime place the other day where I came upon not one, but two lawyers.

One was Gonad the Ballbearian, my regular Rottweiler, and the other was an unknown, morose individual, glowering savagely at me over a meagre sandwich.

Do you know Attila? asked Gonad, pleasantly enough as he took 10% of my coffee and 15% of my food.

Is that normal? I inquired.

What? he smiled.

Taking 10% of my coffee and 15% of my food.

It’s a reduced rate, he nodded. You assented to the agreement by sitting down beside me.

I did?

You did. It’s an unspoken contract.

All I did was sit down.

Yes.  And by so doing, you agreed that henceforth, all your beverages are subject to a 10% levy and all food to a 15% refresher.

You’re some prick, I growled.

That will be another 5% for personal abuse, Gonad smirked.  Plus a 33% surcharge for abuse-processing.  

What?

And an 18% query fee.

Query fee?  What the fuck is that?

And a 28% fee-querying fee.  That comes to 99% of your lunch.  Thanks very much.

Are you trying to tell me that I’m left with one fucking chip?

No, said Gonad’s colleague, Attila, swallowing my final French fry.  I’ll be imposing my overhearing fee on top of that.  You owe me three more lunches.  Would you like to pay now in advance?

___________

More from Gonad

 

 

 

Categories
Law

Judges Issue Statement on Proposed Amendment of Article 35.5

The Irish judiciary has taken the unprecedented step of publishing a statement about the proposed constitutional amendment clearing the way for a reduction in their salaries in the same way as the wages of other public-sector workers have been cut.

I read it and I have to confess, I was astounded.  Some of it is reasonable enough, but some is plain, old-fashioned special pleading based, apparently, on a sense of entitlement.

It only seems fair to publish the entire text of the judges’ statement here, with my personal translation into plain English where I consider it necessary. If I think any of the judges’ comments are waffle, I won’t offer an interpretation.

Judge for yourself how I get on.

Re:  Proposed  Referendum  on  Article  35.5  of The  Constitution

Memorandum  on the  Proposed  Amendment

Original Translation 

1.  No  one doubts for a moment the  seriousness  of  the  economic  crisis facing  the  country.  The judiciary has not opposed the proposal for amendment of Article 35, section 5 of the Constitution. The  ultimate  decision  on  would,  of course,  be  entirely  a  matter  for  Oireachtas  and  the  People.  The issue here is not whether judges’ pay should be reduced, but rather how that reduction should be achieved, while effecting the least interference with the principle of independence of the Judiciary which that provision of the  Constitution is designed to protect. 

 

We’re not standing for for this.
2.  If judicial pay is cut, this will be the first time that this has occurred in the legal history of these islands since the Act of Settlement 1701. 

 

Blah blah blah
3.  Article  68  of  the  1922  Constitution  provided  that  the remuneration  of judges  “may  not  be  diminished  during  their  continuance  in  office”.  Writing in  1932  in  his  seminal  text, Professor  Kohn  observed  that  “The  independence  of  the  judges  has  been  further  safeguarded  by  the provisions  of  Article  68  of  the  Constitution  that  their  remuneration may  not  be  diminished  during  their  continuance  in  office.” 

 

Blah blah blah
4.  Article  35.5  of  the Constitution provides  that:- 

“The  remuneration  of  a  judge  shall  not  be  reduced  during  his continuance  in  office.”

5.  During  the  debate  on  the  Constitution,  Deputy  Norton  (then  leader  of  the Labour Party)  observed  with  regard  to  Article  35.5:-

“I  take  it  that  [Article 35.5]  is  intended  to  establish  the  independence of  the judiciary which  function through  [the  High  Court and the Supreme Court]  and  it  is  probably  intended  to demonstrate  to the community as a whole and to judges in particular that judges are not  liable to have their salaries reduced if for any reason they do things which incur the displeasure of the [Government].”

 

An opposition  politician in the 30s said we shouldn’t have a pay cut.
The  rationale  for  the  present  rule 

6.  Article  35.5  of our Constitution is designed  to  protect  judicial  independence

As  one  of  the  great  US  Founding  Fathers,  Alexander  Hamilton,  put  it  in The  Federalist  Papers, No.  79 at the time of the enactment of the US constitution:-

“Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. In the general course of human nature, a  power  over  a  Man’s  Subsistence amounts  to  a  power  over  his  Will.”

 

Judges should be paid big money.
7.  This principle is internationally acknowledged and cherished today.  The  words of  Hamilton  were  quoted  with  approval  by  a  majority  of  our  Supreme  Court in  O’Byrne  v. Minister  for  Finance  in  holding  that  Article  35.5  did  not exempt  judges  from  the  necessity  to  pay  income  tax: 

“The  purpose  of  the  Article  is  to  safeguard  the  independence  of judges. To  require  a  judge  to  pay  taxes  on  his  income  on  the  same basis  as  other  citizens  and  thus  to  contribute  to  the  expenses  of Government  cannot  be  said  to  be  an  attack  on  his  independence.”

 

 

Judges have to pay tax.
8.  Article III of the US Constitution provides that judicial compensation “shall not be diminished during their Continuation  in Office”,  words  which  clearly inspired  Article  68  of  the  1922  Constitution  and  Article  35.5  of  the Constitution. 

 

Blah blah blah
9.  The European Charter on the Statute for Judges, adopted at Strasbourg, 8 – 10 July  1998 under the auspices of the Council of Europe provides at Article  6.1: 

“Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality.”

 

Europe says judges should be paid big money.
10.  On 23rd November 2001, the Consultative Council of European Judges (CCJE) adopted Opinion No 1, which included reference to Recommendation No. R (94) 12, which provided that judges’ remuneration should be guaranteed by law and commensurate with the dignity of their profession and burden of responsibilities and that that it was generally important (and especially so in relation to the new democracies) to make specific legal provision guaranteeing judicial salaries against reduction 

 

Europe says you shouldn’t cut our money.
11. The  underlying issue of principle is more complex. 

 

Mere  knowledge  that the  Oireachtas  has  the power to legislate  to  reduce  salaries  may be perceived, even if it is not so in fact, as having the  potential  either  to  pressurise  judges  on the  one  hand  or,  alternatively, make  them  liable  to  view  the  other  branches of  government  with  suspicion  or  even  hostility.  In  the  words  of  one  of  the most internationally respected judges  in  recent  times,  the  late  Lord  Bingham:-

 

“There is also, perhaps, another and subtler link between independence and remuneration.  In most societies, and subject to obvious exceptions, there is some perceived relationship between what someone earns and the status or prestige which he enjoys.  Financial rewards are not, of course, everything, but nor are they nothing.  Unless, therefore, the rewards of judicial office (with or without other benefits) are sufficient to attract the ablest candidates to accept appointment, albeit with some financial sacrifice, the ranks of the Judiciary must be filled by the second best, those who (under our system) have failed to make it in private practice, and there would be an inevitable lowering in the standing and reputation of the Judiciary and a sea change in the relationship between advocate and judge.”

 

If you don’t pay the judges big money, you’ll get fools.
12.  In O’Byrne v Minister for Finance Lavery J. observed that from a consideration of the  1922 Constitution and  the  corresponding provisions of Article  35 of  the  Constitution that:- 

 

“The idea emerges – that the judicial power of the State should be vested in judges set apart in many important ways from the life of the community and denied important civil rights in order that they should be independent in the exercise of their functions.”

 

One of our guys agreed with us.
13. A number of significant restrictions on a member of the Judiciary are explicit in the Constitution: 

 

disqualification from membership of the Oireachtas, and prohibition on the holding of any other officer of emolument:  Article  35.3.

 

Some of the constraints on the judiciary are regarded as implicit in the concept of independence, and  observed by convention since the foundation of the State : the fact that judges do not speak or engage on matters of public controversy; the convention that judicial appointment is normally for full service until retirement, and that, even on retirement, a retired judge should not pursue any vocation or employment either public or private, which is inappropriate for a judge.  Nor do the  judges  organise  collectively. All these are understood to be components of an independent judiciary.  In return, the Constitution provides for fixity of tenure, that a judge cannot be removed save for stated misbehaviour and then by separate resolutions of the Dáil and Seanad  (Article  35.4.1), and by a guarantee that remuneration will not be reduced (Article  35.5).

 

We have to follow the same rules as civil servants.
14.  It is clear that these matters are themselves essential requirements of the independence of the judiciary which is an essential component in the concept of separation of powers.  This  is why the guarantee  against  reduction  in  salaries is  deeply  embedded  not  only  in  the  Constitution, but  one  finds  it  throughout  the  constitutions  and  fundamental  laws  throughout  the  common  law  world. 

 

Blah blah blah
15. In  Canada, The  Provincial  Judges  Reference  held  that  the  reduction  in pay  of  provincial  court  judges  in order to  help  address  a budget deficit  was unconstitutional,  as  being  inconsistent  with  the  guarantee  of  judicial independence  contained  in  the  Canadian  Charter of Rights and Freedoms.  A majority  of  the  Canadian  Supreme  Court   held  that independent compensation commissions are required to enable salaries to be set free of political influence. 

The Court  pointed  out  that, if remuneration of provincial judges is to be raised, lowered or kept the same, this may be done along with the remuneration of other government employees or with the judges’ alone. The continued independence of judges, however, will be kept apparent in any of these circumstances if it involves review by an “independent, effective, and objective” body, i.e., the salary commissions. What is involved in such circumstances is that, because what is being done is to the financial disadvantage of judges, it is important that the extent of discretionary power of the government of the day be kept to a minimum.

 

Furthermore,  judges  of  the  High  Court  and  Supreme  Court  are effectively debarred  by  the  Rules  of  the  Bar  Council  from  returning  to  legal practice  following  resignation  or  retirement.

As  Kennedy  C.J.  put  it  in James  O’Connor’s  case, these  principles:

“reflect  a  common  understanding  underlying  these  [judicial] appointments, that, with  security  of tenure and  fixed  and  adequate  remuneration and  pension, the  practice  of  the  profession  of  the  law  is abandoned for  ever  by  the  person appointed.”

 

 

The Canadian judges didn’t want a pay cut either.
16.  If,  however,  the  constitutional  principle  that there be no  reduction  in judicial  remuneration  is  altered,  then the  basis  for  the permanent abandonment by a judge of the practice of his profession is undermined.  The proposition that it is undesirable that  a  judge  to  return  to practice was explained by  Kennedy C.J.:- 

“There  is  good  and  powerful  reason in  support  of  such a  rule, for  it  is beyond  doubt that  if  a  man  should  step  down from the  privileged position  of  the  Bench and  throw  off  what  is a sacred  office  to  engage in the  rough-and-tumble  of  litigious  contest, and  compete  with practitioners for  the  feed  business  of  the  Court, perhaps  challenge the decisions  which  he  pronounced, or  even  fail  to  support  them  in argument, he  will  shake  the  authority of  the  judicial  limb  of government and  mar  the  prestige  and  dignity  of  the  Courts  of  Justice upon  which  the  whole  structure  of  the  State  must  always  lean.”

 

We can’t go back working as barristers because, if you paid us, we’d disagree with our own decisions.
17.  There is here a question of perception and fairness. If, for example, a High Court or Supreme Court judge  returned to practice and appeared before the High Court, then either the opposing counsel (and, more importantly, their clients) might feel that they were at an unfair disadvantage. But no one would be prepared to give up the right to practice a profession permanently if they did not have the assurance of fixity of salary and tenure of office. 

 

An ex-judge couldn’t go back working as a lawyer because everyone else would think he had the inside track with the judge, just like in real life.
18. The same is true with respect to Article 35.3. Thus, for example, a member of the Oireachtas (with whom,  as we shall see, judges may be expressly compared under the terms of the suggested wording at present available) who is unhappy with reduction in his or her salary can, for instance, supplement that by holding an office or position of emolument. There are numerous instances where Oireachtas members quite properly derive income as academics, lawyers, doctors, architects, teachers, company directors and so forth. 

 

19.  Why, then, should this rule be maintained in such circumstances if the quid pro quo – no reduction in pay – is being abandoned? Many continental judges (including, for example, judges of the Court of Justice and the German Constitutional Court) hold offices of emolument for example as Professors in universities.  Other continental judges  engage in part-time arbitration and mediation work.

20.  Yet in a small jurisdiction such as ours, any relaxation of this rule might have unfortunate  consequences. Could, for example, a judge who engaged in part-time arbitration work continue to hear arbitration cases in his or her judicial capacity?

Fundamental flaws associated  with  the  existing suggested  wording

 

German judges hold down part-time jobs but we’re better than the Germans.
21.  According to press reports, the approach to the amendment seems to be grounded on the following  wording, attributed to the Department of Justice:- 

“The remuneration of judges shall not be reduced during their continuance in office save as may be regulated by law on the basis of reductions that are made by law, in the public interest, in the remuneration of persons generally or a class of such persons in the public service, including the Oireachtas and other office holders.”

 

22 .  It is fundamental that in any proposed amendment, which seeks to protect the independence of the judiciary, wide discretion is not left to the government of the day (and, by extension, the Oireachtas of the day which would be empowered to enact the appropriate legislation giving effect to the pay reductions) as to the circumstances in which and extent to which reductions in pay are implemented .  Otherwise, there is a risk of perception that the judiciary may be influenced by the government.

 

We don’t want the parliament passing any laws about our pay.
23.  The suggested draft wording invites a number of comments.  First, the language is extremely loose.  It would provide no limitation on the circumstances in which a reduction should be made; the government’s view of the “public interest” (as reflected in the legislation enacted by the Oireachtas) would suffice.  There is no method of calculating the reduction identified.  The only figure by reference to which such a reduction should be effected is contained in a phrase of very broad potential application, namely, “in the public interest”.  But perhaps most significantly, the bodies which are to be charged with deciding the reduction, both as to whether it is required and by reference to what comparator such reduction should be calculated, are the other branches of government, i.e., the Executive and Legislative branches.  At a minimum it might be thought that any amendment should closely and specifically identify the circumstances in which any deviation from the historic principles set out in Article 35.5 could be contemplated such as a financial crisis involving the public finances accompanied by the mechanism by which any salary reduction should be calculated, which should itself be independent of government. 

 

We’re better than the other civil servants.
24.   There would be furthermore nothing to stop the Oireachtas enacting legislation cutting the pay of any other office holder(s) and applying that particular pay cut to the judiciary.  There is nothing in the suggested wording of the proposed amendment to prevent a series of “tactical” cuts being applied to different classes of public servants, but each of whom can be applied to the judiciary. 

 

They might cut our money again.
25.  The proposed wording would also provide less safeguards than that previously proposed during the last Dáil in the 29th Amendment of the Constitution Bill, 2009:- 

“The remuneration of a judge shall not be reduced during his continuance in office, save where it is necessary to address a serious threat to the State’s economy, there is a compelling need to stabilise the State’s finances and as a consequence it is necessary to effect a reduction in public service remuneration. In such circumstances, any reduction in the remuneration of all public servants or in the remuneration of a class of public servants may be applied to effect a comparable reduction in the remuneration of all members of the judiciary

 

They’re getting harder on us.
26. Even then, however, that Bill would have been open to the fundamental objection that it did not provide for an in-built mechanism for an independent review of the levels of the reduction of judicial pay. 

 

We’re better than other civil servants.
Conclusions 

27.  In our view, the suggested  wording as published in the press is fundamentally deficient and would compromise the substance of judicial independence in the manner indicated.  The principles of judicial independence require that any decision regarding judicial remuneration and the reduction in judicial pay must be taken by an independent body.

 

Blah blah blah
28.  If it were otherwise, one of the essential features of a constitutional democracy and the rule of law would be compromised. Many judges dealing with asylum and immigration cases have encountered country of origin information dealing with the position of judges in developing countries where the independence of the judiciary is parlous and where such judges have limited institutional independence. 

 

Blah blah blah
29.  A finding by a reputable international court or observations by an international organisation that these fundamental guarantees of constitutional independence had been – even unwittingly – compromised, were the suggested wording for the amendment to be adopted, would have huge reputational implications for Ireland and for confidence in our legal system. 

That confidence is not only a bulwark of the Constitution’s freedoms which we as citizens enjoy in a free society, but is an essential bedrock of economic confidence on which our recovery from the ordeal to which the State is at present subject is completely premised

 

Blah blah blah
30.  This memorandum is not prepared in opposition to an amendment of the Constitution so as to ensure that judges bear a fair share of the burden of pay reductions, but rather proposes that, if this is to be achieved, the essence of constitutional independence must be safeguarded by means of an independent adjudication on what these reductions should be. 

 

Don’t you dare cut our pay.


Categories
Law

Reducing Judges’ Pay

Section 35.5 of the Constitution is very specific.

It says The remuneration of a judge shall not be reduced during his continuance in office.

We know what it’s there for — to make sure that a judge can’t be victimised if his decisions are upsetting the politicians.  It protects the independence of the judiciary by guaranteeing that judges can’t be singled out for unfair treatment.

That’s fair.

We know what it’s not there for as well, though.  It’s not there to protect judges from pay cuts imposed across the entire public service.  It’s not there to single judges out for preferential treatment.

Now that the government has decided to hold a referendum on judges’ pay, their Lordships are not happy, and I suppose it’s hard to blame them, but it’s also hard to have sympathy for them. These people are doing all right financially, apart from the ones who might have got themselves involved in shaky property deals during the boom.

A referendum to reduce judges’ pay will certainly succeed, but then we might find ourselves faced with a tricky problem.  If some judge decides to fight his case in the courts, who will decide if he’s right or wrong??

Leaving all that aside, I think this proposal will be hugely popular, but politicians are politicians and this government has to make some savagely unpopular decisions.  So just watch out for the announcement of the cuts in judges’ pay and scan the papers the same day for the cuts that will affect you.  You can be sure they’ll use it to hide the nasty bits.

Categories
Law

Workers threaten to obstruct M7 motorway

A report in today’s paper caught my eye because it seemed like a perfect example of something I’ve been talking about for a long time now: the need for clear thinking.

The final section of the Limerick-Dublin motorway is close to completion and the builder is Bowen Somague Joint Venture.  This company has a contract with the State to construct the road, and whatever arrangements it has with its sub-contractors is nobody’s business.

Bowen Somague, an Irish-Portuguese consortium, is claiming €26 million in extra money for work it claims to have carried out, and the State is contesting this claim because it doesn’t think the company is entitled to receive this public money.  Bowen Somague in turn, has declined to pay one of its subcontractors, KC Civil Engineering, and this company has not paid its workers since the 1st  November.

KC Civil Engineering apparently negotiated a back-to-back deal with the main contractor.   This means that they get paid when the money comes through.   Everybody knew that right from the start, and presumably it was on this basis that KC Civil Engineering expected to make a handsome profit.

Unfortunately, it seems their workers, who didn’t have a back-to-back contract, were unaware that their employers would hold their wages if there was a problem, and they’re understandably annoyed.  They’ve blocked access to compounds along the length of the new road and they say they’ll continue to do so until they get their money.

Who could blame them?  After all, they have families to feed, and their employer hasn’t paid them. They even want Biffo to intervene, because the road happens to pass through his constituency.

Now here’s the strange bit.

According to the Irish Times report, the workers have the support of their employer, KC Civil Engineering.

Hang on a minute.  Isn’t KC Civil Engineering the company that refuses to pay the wages?

Aren’t they the people who owe the money?  In what sense are they supporting the workers? How about paying them?

A national newspaper let this pass without a critical word.

KC Civil Engineering has no contract whatever with the State.   Its contract is with Bowen Somague Joint Venture, who are claiming money that the State doesn’t think they’re owed. They took the decision not to pay their sub-contractors and this decision had nothing at all to do with the Irish government. It was a private matter between two civil engineering companies.

Managing director of KC Civil Engineering Chris Wholey said he had “a lot of sympathy” for the workers.

Imagine that.  I have a lot of sympathy for the people I didn’t pay.

In this case, I completely agree with the NRA who said  “The Local Authority (not to mention the NRA) has no power to intervene in the commercial relationship between the Contractor and his subcontractors, and is not involved in the argument.”

Mr  Wholey accused the NRA of “hiding behind the contract” even though he has no contract with them.

It seems everyone is turning to the State for money these days.

Since this company has a contract with the main contractor and not with the State, can anyone explain to me why Biffo should be asked to intervene?  Is this not just another example of the way we Irish assume everything can be handled by the back door?  Is this not precisely what’s wrong with this country?

Categories
Law

Petition: That the Irish President unyoke the Nation’s Welfare from Private Banking Interests

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That the Irish President unyoke the Nation’s Welfare from Private Banking Interests

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To:  Ms Mary McAleese, President of Ireland

We, the undersigned citizens of Ireland, hold that the Government of Ireland, by means of the following actions, laws and agreements, underwritten by the wealth of the citizens of Ireland, has unlawfully and immorally yoked the welfare of the nation of Ireland and of its people to the commercial interests of certain private banks and private bank investors:

1) The enactment of the Credit Institutions (Financial Support) Scheme 2008 and the Credit Institutions (Eligible Liabilities Guarantee) Scheme 2009, as amended, through which instruments the citizens of Ireland pledged their public treasury and national assets as surety for various debts and risks knowingly incurred by private banks and private investors.

2) The various disbursements from the public treasury, pursuant to the above legal instruments and others, of sums aimed at shoring up the balance sheets of private banks and obviating with public monies the risks knowingly undertaken by private investors.

3) The enactment of successive punitive public budgets, constrained by loss of public sums so disbursed, eroding the services, public investments and entitlements due to the citizens of Ireland, threatening the well-being of the poor, sick and disabled, and directly removing from circulation in the general economy monies by means of which the citizens might once again thrive and contribute a net gain to the public purse.

4) The negotiations conducted with unelected parties representing the EU, the ECB and the IMF, and concluded on 28th November, 2010, with an agreement to undertake yet further debt, underwritten by the wealth of the citizens of Ireland, the terms of which have yet to be fully disclosed in public, but which have as their aim the further open-ended support of private banks and private bank investors from the public purse, and which put at grave risk the nation’s assets and cash reserves.

We, the undersigned, believe that the Government of Ireland, in so yoking the well-being of the nation to the commercial fortunes of private risk-taking institutions, has acted in direct contravention of the Irish Constitution, in particular of the provisions cited below, to the harm and detriment of both living and unborn Irish generations.

Bunreacht na hEireann, Article 45.2
iii. That, especially, the operation of free competition shall not be allowed so to develop as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment.
iv. That in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole.

Bunreacht na hEireann, Article 45.3.2
The State shall endeavour to secure that private enterprise shall be so
conducted as to ensure reasonable efficiency in the production and distribution
of goods and as to protect the public against unjust exploitation.

Bunreacht na hEireann, Article 45.4.1
The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged.

We, the undersigned, call on Mary McAleese, President of Ireland, by virtue of her office, to be mindful of her moral duty of care to the nation, to shield the interests and welfare of the people of Ireland from the hostile commercial powers ranged against them, and, in accordance with her sacred oath given to the people of Ireland as follows:

“In the presence of Almighty God, I, Mary McAleese, do solemnly and sincerely promise and declare that I will maintain the Constitution of Ireland and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Ireland. May God direct and sustain me.”

and, in accordance with the privileges and responsibilities of her office, we petition her to seek constitutional redress for her people and to take all actions necessary to unyoke the nation of Ireland from the commercial and private interests of certain private banks and their private investors.

Sincerely,

The Undersigned

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The That the Irish President unyoke the Nation’s Welfare from Private Banking Interests Petition to Ms Mary McAleese, President of Ireland was created by and written by Scotlyn Sabean (scotlyn@imagine.ie).  This petition is hosted here atwww.PetitionOnline.com as a public service. There is no endorsement of this petition, express or implied, by Artifice, Inc. or our sponsors. For technical support please use our simple Petition Help form.


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Categories
Law

Legal Earthquake : Donal Kinsella, Sleepwalking Former Kenmare Resources Board Member Wins Record €10 million Damages in Libel Case

Kenmare Resources is a mining company and as such, might have considered employing a barrister more acquainted with its core activities to defend it against libel claims by its former deputy chairman, Donal Kinsella.  Displaying a lamentably poor understanding of geology, Bill Shipsey, Senior Counsel for the company, complained that the damages award of €10 million to Mr Kinsella was “off the Richter scale”.

Somebody should explain to Mr Shipsey that the Richter scale, which measures the strength of earthquakes, doesn’t have an upper limit, in much the same way that barristers’ flights of hyperbole, and their fees, are untrammelled by artificial boundaries.

To be charitable to Mr Shipsey, who is a lawyer and therefore, almost by definition, entirely ignorant of all things practical, maybe he was knocked off his feet by the legal earthquake of today’s finding and not thinking straight.

What happened?

Back in 2007, the people who run Kenmare Resources were in Mozambique inspecting their Moma titanium minerals mine.  During the night, Kinsella went sleepwalking three times, turning up at the room of secretary Deirdre Corcoran who was not amused.  On returning to Ireland, Ms Corcoran made a formal complaint about the matter.

A lawyer was appointed to investigate, and found that Kinsella had not sexually harassed Ms Corcoran but was simply sleepwalking.

So far so good.

That wasn’t what the case was about.  The thing that caused the trouble was a press release issued by the company referring to an “incident” involving Mr Kinsella and the secretary.

Kinsella argued that the release created the impression he had made inappropriate sexual overtures to the woman.   He said it had made him a laughing stock.  He had been called a pervert at business meetings, even though the independent inquiry had exonerated him.  He claimed that the press release libelled him, and the jury of seven men and four women agreed.  History does not record, however, why it was so difficult for him to put on pyjamas after he had been sent back to his room the first two times.  Perhaps it has something to do with his Fianna Fáil connections: the sleepwalking party with no clothes.

The jury awarded him €9 million damages, and a further €1 million in punitive damages for the rough treatment he had experienced under cross-examination.

It seems Mr Shipsey’s questioning was on the robust end of the Richter Scale.

Categories
Law

Commercial Vehicle Tax – Green Party Attacks Travelling Community

John Gormley has announced stringent new rules for the registration of commercial vehicles.

To avail of the lower commercial rate of road tax, a person must now sign a statement attesting that the vehicle will be used exclusively for commercial use.  This requirement will place great strain on hard-pressed Traveller families who have traditionally used their vans to scrape a meagre living and also for domestic and recreational purposes, pulling caravans, with the entire family in the van.

As a consequence of this new directive from John Gormley’s department, Travellers will either have to purchase new cars for family use, register their vans as private vehicles and pay up to €1000 more in road tax, or cease trading.

Furthermore, they will have to supply the local authority with a Revenue reference number to prove that they are making annual tax returns and if they fail to do this, they won’t be allowed to register their vehicles as commercial.

The whole thing could be viewed as a naked attack on the traditions of the travelling community.

The alternative is to exempt the travelling community from this law, but if the government did that, they’d be discriminating against non-Travellers, wouldn’t they?

I wonder what attitude an Garda Síochána will take to the enforcement of this law?

Categories
Favourites Law

Lawyers Withdraw Appeal Against Taxing Master’s Decision

A firm of solicitors whose claim for fees against the State was reduced has withdrawn its High Court appeal of the decision.

PV Boland and Co, of Newbridge, County Kildare, submitted a bill for €2.14 million after winning a case against the Personal Injuries Assessment Board, but the Taxing Master rejected their claim, describing it as revolting in the extreme.  He reduced the combined barrister’s and solicitor’s fees to less than one fifth of the amount claimed.

I have never encountered such grossly excessive fees, said Mr Moran, the Taxing Master.  I can hardly find the words strong enough to describe my disgust and bewilderment at the level of these costs being claimed.

PV Boland’s share of these fees was €1,050,000, but the taxing Master reduced this to €106,000, a reduction of 90%.

A claim of €10,000 for postage, photocopying, and sundries was cut to €1,000.

PV Boland issued a statement in which it said that it had withdrawn its objection due to the distracting  publicity generated by the case.

“Patrick V Boland and Son took this decision reluctantly. It acted in good faith throughout this process, and submitted its bill of costs through normal channels to an established taxing process,” the statement said.

“Due to the level of commentary which prevailed from the preliminary findings, we felt the interests of our clients were best served by focusing on our work rather than on a distracting appeal process.”

“The firm does not agree with the findings of the Taxing Master, yet believed that the level of public commentary surrounding the publication of his preliminary findings was sufficient to be distracting to our responsibilities as a small local firm of serving our clients to the best of our ability.”

So there you have it.  In this difficult financial climate, a firm which did work to the value of a million euros settled for a tenth of the figure it believes it’s owed.  And even though it spent ten thousand euros on photocopying, it settled for one thousand.

It tolerated what must surely amount to a gross insult by the Taxing Master who said that the costs were devoid of all reality, and bore no relationship to the issues involved or the nature or extent of the work undertaken.

This is tantamount to calling them liars.   A bill devoid of reality is a false bill, and therefore the Taxing Master has levelled a very grave charge against PV Boland — a charge that goes to the very heart of their professional reputation.

I simply cannot understand how any firm that values its good name could walk away from a case in which its integrity and honesty was questioned so publicly by a very senior court official.

Quite apart from the loss of a million euros — a sum that no firm could possibly do without  — the damage to its reputation must be even more costly.

Therefore, distraction or not, I can’t see how withdrawing from this appeal was an option, given the reputational damage caused to this company.  If they don’t defend themselves against the Taxing Master’s comments, they’ll end up with no credibility.  It will almost look as if they’re agreeing with the Taxing Master’s accusation that their fees have no basis in reality.

A claim for fees which has no basis in reality is a fraudulent claim, and surely PV Boland cannot allow themselves to stand accused of fraud.  That would leave them open to prosecution by the Gardai for inventing costs which they did not incur and seeking to defraud the tax-payer of a million euros.  Such a thing would be unthinkable.  They must act to protect their good name.

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Previously on Bock


Categories
Law

Justifiable Force and the Bazooka in the Wardrobe

New legislation has just been published, allowing you to shoot the worthless, lowlife shitbag who breaks into your home, but I’m afraid it just doesn’t go far enough.

Yes, it’s true that you have a valid defence if you honestly believed you had to riddle the bastard with a machine-gun, but you’ll still have to appear in front of a court, for no good reason.  And yes, it’s also true that you no longer have to run away if some dirtbag attacks you in your home.  You can stand your ground and resist, but crucially, you can’t pursue the motherfucker to the ends of the earth, dismember him and dissolve him in a bath of sulphuric acid.  This is considered unjustified.

Now look.   Let’s be reasonable.  What would be wrong with keeping a double-barrelled bazooka in your wardrobe, or planting land-mines in your garden?  What would be wrong with firing a guided missile at an approaching van if you think it contains burglars?  I see little wrong with this, and I don’t know why householders are still prevented from taking pre-emptive measures to make sure that the scumbag stays outside the door, preferably in as many pieces as possible.

What kind of a country is this?  You can’t shoot a flame-thrower at intruders, you can’t hunt down and exterminate their entire family, you can’t pursue them across the globe and kill them like a screaming dog.

That’s the problem with all this namby-pamby, touchy-feely, nanny-state liberalism.

How the hell can we protect our homes if we can’t even feed a burglar feet-first through the gearbox of our tractor?

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Criminal Law (Defence and Dwelling) Bill 2010

Categories
Favourites Law

Lawyers’ Fees Reduced by 80%

There was this fellow by the name of O’Brien, and he was boning a cow when it fell on him.

That can happen sometimes, as you might imagine, and it can cause serious injuries.  After all, a cow is heavy — even a dead one such as Mr O’Brien was boning.  He was injured and so he went to see a solicitor: one Mr Denis Boland, of PV Boland, Newbridge, County Kildare who duly contacted the Personal Injuries Assessment Board (PIAB) on behalf of his client.

It’s not surprising that Mr O’Brien went to see Mr Boland.

Mr Boland is the eminent lawyer who, together with his barrister colleague, Mr Alan Mahon, later the judge who took over the Planning Tribunal, successfully sued the State for many millions on behalf of his clients in the Army deafness cases.  For his efforts, Mr Boland earned €16 million from the State in addition to whatever money his clients were awarded.  Who wouldn’t recruit Mr Boland to fight their case?  I would, if a cow I was boning fell on me.

In passing, I might mention that, of the €300 million paid out by the State, about €100 million went to the lawyers involved.  I don’t know what PV Moran’s policy was, but I do know that some solicitors, having been paid by the State, also billed their clients for the work done on their behalf.

Legal costs have always been a huge problem and you might remember that the PIAB was set up as a means of reducing the penal levels of insurance premiums we had to pay.  The idea was that, instead of enduring a protracted, tedious and expensive legal process, you could go to them and they would adjudicate on the rights and wrongs of your case with little or no legal whataboutery.  Clearly, lawyers would not be happy with such an arrangement.   I can understand why lawyers would be unhappy with something that reduced their income.  If something caused me to have less cash, I’d be deeply peeved too, but such is life.  Less money for the lawyers, faster results, reasonable awards, smaller premiums for the rest of us.

The idea was to get the expensive lawyers out of the system so that more money was available for the injured parties.

Needless to mention, you could use a lawyer if you wished, in making your claim, but an over-helpful employee of the PIAB failed to appreciate this and contacted Mr O’Brien to tell him he didn’t need a solicitor.  All he needed was to send them a medical report.  This was true.  Furthermore, the case was not going to court and liability was admitted.  Mr O’Brien was going to get his money no matter what happened but he was still outraged at the suggestion that he didn’t need a solicitor — even though there was nothing for the solicitor to do.

Mr Boland, his lawyer, was — if such a thing could be possible — even more outraged than Mr O’Brien at the injustice inflicted on his client.  He understood quite clearly that everyone is entitled to legal representation.  Everyone is entitled to have a lawyer sitting beside them in a case that isn’t going to court and where everything is already agreed, so there will be no need for legal argument.  In Mr O’Brien he found a client who was absolutely ad idem with his philosophy. Mr O’Brien was prepared to fight the case on principle even though it might bankrupt him because he recognised the fundamental principle of justice that was at stake.

Fight away!  he told Mr Boland.  I’ll pay whatever it costsThe principle at stake here is too important to worry about money.

Proceedings were duly issued against the PIAB.  They went to the High Court and eventually the Supreme Court where, in the end, Mr O’Brien was vindicated.  The highest court in the land decided that he had the right to be represented by a lawyer in dealing with the PIAB if he so chose.

None of this is in doubt.

The PIAB lost and they had to pay Mr O’Brien’s substantial legal costs.  Mr O’Brien, being a disabled boner, is not a wealthy man, and it is no doubt to his credit that he recognised the great legal principle at stake and decided to take the case for the benefit of all future litigants, regardless of the personal cost to himself should he lose.

Mr O’Brien did not lose, however, and now his legal team were entitled to be paid for their endeavours both in the High Court and in the Supreme Court.

They submitted a total fee of €2.143 million against the PIAB and this fee then went to be taxed, which is an archaic way of saying that it was assessed by the Taxing Master.  This is the fellow who decides if lawyers are simply taking the piss, or if they’re riding the arse off the opposition when they send in their bills.  Bills which are simply taking the piss are perfectly acceptable, but giving it up the arse is frowned upon.

Hence, when a man who routinely approves excessive charges expresses disgust and bewilderment, alarm bells are bound to go jangling.  When the Taxing Master says the the level of costs are revolting in the extreme, you know there’s going to be trouble.

But when the Taxing Master cuts fees to a fifth of the amount sought, you really have to start asking yourself questions.

I have never encountered such grossly excessive fees, said Mr Moran, the Taxing Master.  I can hardly find the words strong enough to describe my disgust and bewilderment at the level of these costs being claimed.

He reduced Boland’s fees from €1,025,000 to €132,000.  In other words, a reduction of 87%.

He cut a claim for postage, photocopying, paper and sundries from €10,000 to €1,000.

The Taxing Master said that the costs before him were devoid of all reality, and bore no relationship to the issues involved or the nature or extent of the work undertaken.

I had to think about that for a while to try and understand exactly what Mr Moran is suggesting.  If I submit a bill which is devoid of all reality, it must presumably have no basis in fact, a bit like a Senator’s travelling expenses.  A bill which has no basis in fact is a false bill.  If I submit a bill to you which bears no relationship to the nature or extent of the work I do for you, I’m billing you for something I didn’t do.  That would be fraud, would it not?

If you told me that my explanation for being late for work was devoid of all reality, I would assume you were calling me a liar.

Is that what the Taxing Master is suggesting?  If so, the implications are staggering.  If I were a partner in Bolands, I’d be defending our good name vigorously against Mr Moran’s assertions because what he has said could be very damaging to a firm’s reputation.

I’m afraid the barristers didn’t come well out of the Taxing Master’s decision either.

Mr Gardiner and Mr Whelehan each asked €110,000 for their High Court services but were awarded only €25,000 each.  In the Supreme Court case, Mr Gardiner asked for €110,000 but received only €30,000.

Mr Cormac McNamara sought €75,000 for his Supreme Court work and was awarded €25,000 but his High Court taxing stands out, even though his claim was by no means the highest.

For his efforts in the High Court, Mr McNamara claimed €75,000 but the Taxing Master saw fit to award him the sum of ZERO, presumably on the basis that Mr Moran thought Mr McNamara had done no work at all to support his claim.

Not a sausage.

It’s as if I handed you a bill.  That’ll be ten thousand please, for landscaping your garden.

You didn’t landscape my garden.

Yes I did.

No you didn’t.

Yes I did.  Ten grand please.

No, you didn’t.  I have no garden.

Yes you have.

No I haven’t.  I live in an apartment.

Oh.  Right.

As the Taxing Master put it, The reality is that no case can or could be made to support these fees or justify their level.

You would have to ask yourself why such enormous costs were submitted in this particular case above all others, and they certainly are unique when the Taxing Master himself tells us that he has never seen the like.

The case is under appeal and therefore I would encourage readers to exercise restraint in their comments as I don’t wish to be up all night deleting prejudicial comments.  Luckily,  I’m sure the members of the High Court are not unduly influenced by intemperate things said on Bock the Robber in the middle of the night by drunkards.

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UPDATE

2nd July

The Irish Times carries a report that the barristers won’t be appealing the decision of the Taxing Master.  According to the report, the barristers are saying their fees were submitted at the request of the solicitors PV Boland, on the advice of a legal cost accountant, Connolly Lowe.  The Taxing Master was highly uncomplimentary towards the work of this firm.  He said their efforts to make a case for such high costs had failed dismally.

Now, apparently, the barristers are saying that they never submitted detailed figures for fees but instead told the solicitor, PV Boland, that they would accept whatever the Taxing Master thought was fair.  One of them, Dan Boland, whose fee was reduced from €75,000 to €16,670, said that he would never submit a fee of that size, and that he wasn’t aware of the Taxing Master’s comments and didn’t even know his fees had been submitted for assessment.

I can’t imagine that any of the barristers are too pleased at the way this makes them look.

It appears that Mr Denis Boland, solicitor, will be on his own in appealing the reduction of his fees, when he tries to get the full €1,025,000 he believes he’s owed, as opposed to the paltry €132,000 the Taxing Master thinks he should have.

Let us not forget that this is taxpayers’ money we’re talking about.

I rarely find myself on the same page as IBEC, but I must say I agree with a comment from their director general Danny McCoy who said Where fees are grossly overstated there is a case for all entitlements to be forfeited.

In other words, Mr McCoy thinks Mr Boland should receive not a penny, and that’s a suggestion I would not argue with.

On the evidence before us, it’s hard to escape the suspicion that somebody decided to teach the PIAB a lesson for daring to exclude the lawyers from the lucrative world of personal injuries.  I hope an investigation is carried out to establish whether there’s any substance to this suspicion.