cearta.ie – the Irish for rights

… and pretty soon, you’re talking real money (to rework Senator Everett McKinley Dirksen’s apocryphal remark).

The last time I blogged about Citibank, it had made a mistaken overpayment of nearly US$1 billion (their restitution claim was successful on appeal). The same post noted another bank’s mistaken overpayment of US$50 billion (the payee co-operated in the reversal of the transaction). These are staggering numbers. But they pale into insignificance beside a Citibank overpayment in the Irish Times today:

Citigroup erroneously credited client account with $81tn in ‘near miss’

Citigroup credited a client’s account with [US]$81 trillion (€77 trillion) when it meant to send only [US]$280, … The erroneous internal transfer, which occurred last April and has not been previously reported, was missed by both a payments employee and a second official assigned to check the transaction before it was approved to be processed at the start of business the following day.

A third employee detected a problem with the bank’s account balances, catching the payment 90 minutes after it was posted. The payment was reversed several hours later, … No funds left Citi, …

The Guardian put the figure in context:

Citigroup credited client’s account with $81tn before error spotted

US bank meant to send $280 but no funds were transferred despite ‘fat finger’ mistake

… A transaction of [US]$81tn (£64tn) would be so huge that it would be unlikely to go through any bank’s systems.

…

A New Look at vouchers in liquidations

25 February, 202513 March, 2025

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| Consumer

The saga of the Administration of HMV in 2013 made headlines not only for the sorry state into which a once-great business had fallen, but also for the mess it made of deciding whether or not to accept vouchers during the Administration. I blogged about this here, here, here, and here. The legal issues were not entirely straightforward, and those posts tell a tale of me working them out in real time. I concluded that, for so long as the shops were trading normally, there was no legal basis for them to refuse to honour vouchers. On the one hand, Examiners (in Ireland) (but not Administrators, in England) have a limited power to get out of contracts, but only with the approval of the court. However, on the other hand, in a liquidation, liquidators can disclaim contracts – including vouchers; and even if they don’t disclaim them but decline to honour them, they would rank as unsecured creditors in the insolvency, leaving little practical redress.

Many of the issues with vouchers have been clarified by the Consumer Protection (Gift Vouchers) Act 2019 (also here), inserting a new Part 4A in to the Consumer Protection Act 2007 (also here), which effectively brings the issue within the remit of the Competition and Consumer Protection Commission (CCPC).…

Defamation reform – one step backward, one step forward, and a mis-step

21 February, 202521 February, 2025

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| Defamation, Defamation, Defamation (Amendment) Bill 2024

In my previous post, I noted that the Defamation (Amendment) Bill 2024 has been restored to the Dáil Order Paper, and will therefore continue its journey through the Oireachtas.

Anois teacht an Earraigh, beidh an lá dul chun síneadh, and the Government will publish a Spring Legislation Programme. It has duly done so, and it lists the Bill among the Bills restored to the Dáil and Seanad Order Papers, to recommence at Committee Stage.

However, no Oireachtas committees have yet been established, because the row over Dáil speaking rights has not yet been resolved. The earliest this is likely to be achieved is at a meeting of the Dáil Reform Committee next Wednesday, but unless the Government amends its proposals, that meeting is unlikely to settle the matter. Meanwhile, the long delayed Defamation Bill has taken another step back.

As I noted in the post before that on Defamation in the Programme for Government, the Minister for Justice having carriage of the Bill is Jim O’Callaghan. As a backbencher speaking on the Second Stage of the Bill in the Dáil (noted on this blog here), he characterised the decision to abolish juries in the High Court as “short-sighted”, raising question as to whether he would amend the Bill.…

As I was saying before I was so rudely interrupted … the Defamation (Amendment) Bill, 2024 has been restored to the Order Paper

6 February, 2025

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| Defamation (Amendment) Bill 2024

As I was saying before I was so rudely interrupted …

An old teacher of mine told a good story about that phrase. When Éamon de Valera was making a campaign appearance in Ennis, Co Clare, in the 1923 General Election on 15 August 2023, he was arrested on the platform. He topped the poll two weeks later. He was released on 17 July 1924. When he returned to Ennis to campaign for re-election in the subsequent General Election in June 1927, he began his speech from the same platform with the immortal words “As I was saying before I was so rudely interrupted …”. (This Clare Herald video, on Facebook makes the same claim).

It’s a great story. And it’s all over the internet. I’d be grateful if someone could point me to a credible contemporary source.

There are many other apocryphal uses of the phrase. I particularly like this one:

As Europe teetered perilously on the edge of cataclysmic conflict, BBC television was still in its infancy. The service could not continue in war time – its transmitter at Alexandra Palace would have been a powerful beacon for enemy planes. So, with only days to go until the declaration of war, the television signal was cut off on 1 September 1939 half way through a Mickey Mouse’s Gala Premiere.

…

Defamation in the Programme for Government – Updates

18 January, 20256 February, 2025

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| Defamation, Defamation (Amendment) Bill 2024

Following the recent general election, Fianna Fáil and Fine Gael, the two main parties likely to lead the next government, have published an agreed draft Programme for Government (here, and here (pdf); update: final version here). It pledges to “tackle the practice of ‘retail defamation'” (p122), and to

Restore the Defamation Bill 2024 to the order paper and make passing the legislation a priority. (p122)

This is welcome, but hardly surprising. Each of these parties had made similar promises in their general election manifestos. Fianna Fáil (pdf) promised to

Address shoplifting, by providing retailers with a statutory defence in cases where shoppers claim they have been defamed when asked whether they have paid for a product and/or for proof of purchase [p18]; and
Restore the Defamation Bill to the Order paper at its current advanced stage, maintain its
current approach and implement it within three months [p116].

And Fine Gael (pdf) promised to

Enact the Defamation (Amendment) Bill 2024:
This legislation will reform and modernise defamation laws, including a new statutory defence for ‘retail defamation’ cases to address the rise in claims made against retail businesses [p64].
Enact the Defamation Bill within 100 days:
Pass the Defamation Bill to balance freedom of expression with protections for individuals’
good name and reputation.

…

Properly distributing the burden of a debt, and the actual and presumed intentions of the parties: non-theories, theories and meta-theories of subrogation

13 January, 202518 January, 2025

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| Restitution, Subrogation

By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In an oft-repeated (if not always apt) metaphor, the person receiving the benefit of subrogation is said to stand in the shoes of the other as against the third party (eg, Patten v Bond (1889) 60 LT 583 (Ch) 585 (Kay J); In re Bell Lines Ltd [2006] IEHC 188 (28 April 2006) (Dunne J); Lowick Rose LLP v Swynson Ltd [2018] AC 313, [2017] UKSC 32 (11 April 2017) [62] (Lord Mance)). However, the shoes are sometimes an imperfect, even an uncomfortable, fit. So, in Banque Financière de la Cité v Parc (Battersea) Ltd [1999] AC 221, [1998] UKHL 7 (26 February 1998) Lord Hoffmann commented that “the subject of subrogation is bedevilled by problems of terminology and classification which are calculated to cause confusion”, and a great many academic and judicial computer screens have been filled in seeking to allay that confusion. Now comes news of another labourer in the vineyard: Rory Gregson Subrogation and Marshalling (Hart Publishing, 2024); and a very welcome addition to the literature it is too. I am grateful to Hart Publishing for providing me with a pdf download to review here.…

Open Justice and the GDPR: GDPRubbish, the Courts Service, and the Defence Forces

19 December, 2024

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| Data Protection, Open Justice

Last June, Tánaiste and Minister for Defence Micheál Martin announced the appointment of Peter Ward SC (pictured right) to examine the administration of cases involving Defence Forces personnel charged or convicted of criminal offences. The Report (pdf) was published this week. One of the headlines about it caught my eye:

Soldier jailed for sexual assault was able to remain in Army due to ‘data protection’ concerns

A soldier was able remain in the Defence Forces while in prison for sexual assault after the court authorities refused to hand over details of his offences to the military due to “data protection” concerns.
… The report, by senior counsel Peter Ward, found various instances of information on criminal convictions held by civilian authorities not being shared with the Defence Forces. In some cases, this significantly delayed the discharge process. …

In a post on Twitter (I still can’t call it X), Mark Hennessy (Ireland and Britain Editor of the Irish Times) commented that this was a

… scandalous misuse of the GDPR legislation, displaying a complete lack of common sense, amongst other failings. Court documents are public documents, unless there are legitimate grounds for them not being so, and this is clearly not the case her

On the basis simply of the above press report, I was inclined to agree.…

Winner, Berkowitz, Snepp, Blake & Bissonette – stripping the profits of authors who breach national security pre-clearance agreements

5 December, 2024

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| 1A

In an article in today’s Guardian, I read that the punishment of US whistleblower Reality Winner (pictured right) was not only a conviction and sentence to 63 months in prison, but also a prohibition that she “can never be paid for telling her life story – whether in a book or through the several movies that have been made about her”. This rings three bells for me.

First, in the summer of 1977, New York was terrorized by a serial killer calling himself Son of Sam, who was identified as David Berkowitz and apprehended. Given his notoriety, the rights to his story were worth a great deal of money. As a consequence, New York enacted legislation requiring a publisher contracting with a person “accused or convicted of a crime” for the production of a book describing the crime to pay to the Crime Victims Board any money owed to that person under the contract. The Board would then use that money to compensate victims of crime. Simon & Schuster contracted to publish Wiseguy: Life in a Mafia Family (1985), a book about the life of admitted organized crime figure Henry Hill, written by Nicholas Pileggi, with paid assistance from Hill.…