cearta.ie – the Irish for rights

Women in plain sight in the law: Síofra O’Leary, Catherine McGuinness, Frances Kyle & Averil Deverell

19 September, 2022

Síofra O’Leary (pictured right) has been elected President of the European Court of Human Rights (press release), and will take up office on 1 November 2022. She has been a judge of the Court since 2 July 2015, a President of a Section since 1 January 2020, and Vice-President of the Court since 2 January 2022. She will be the first female President of the Court. Congratulations, Judge O’Leary!

On this blog, I’ve already noted female-majority panels in the Irish Supreme Court. Since then – and as well as from Judge O’Leary’s elevation – there have been three interesting similar developments.

First, the Court of Appeal has made history as the first court in the Republic to have a majority of female judges: it now has has nine women and eight men. More generally, women comprise 42 per cent of the judiciary.

Second, a portrait by Miseon Lee, of former Supreme Court judge Catherine McGuinness, has been unveiled at the National Gallery of Ireland.

Third, a portrait (pictured left) by Emma Stroude, of Frances Kyle and Averil Deverell, the first female barristers to be called to the Bar in Ireland, has been unveiled at the Honorable Society of Kings Inns (RTÉ news, via YouTube).…

Restitution of mistaken payments, again: Chase quickly recovers $50billion; while Citibank eventually recovers (a mere) $500million, defeating defences of “discharge for value”

13 September, 202214 September, 2022

| No Comments

| Mistaken payments, Restitution, Restitution, Subrogation

In my previous post, I looked at Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 (26 August 2022), in which cryptocurrency trading platform Crypto.com accidentally transferred Aus$10.5m [€7.35m; US$7m; St£6.3m] to an Australian customer when processing an Aus$100 [€70; US$67; St£60] refund, by mistakenly entering her account number into the “payment amount” field. Elliott J held that part of the proceeds could be traced into a property gifted by the customer to her sister, who held the property on trust for the payor.

In this post, I want to look at two other computer-enhanced mistakes. The first is almost unbelievable:

Dad becomes 25th richest man in world after €45 billion lands in account after bank error

A family were made multi billionaires when a banking mishap saw [US$50 billion] €45 billion deposited into one lucky dad’s account, momentarily making him the 25th richest man in the world. … [He] was alerted to the huge sum by his staggered wife, …

The dad-of-two, from Louisiana in the US, … admitted to what had happened and arranged for the money to go back to its rightful owner. … When he alerted [his bank] Chase, they immediately began work to get the funds back, but never said where the money came from, or how the error came about.

…

Fortune favours the brave, but not the foolhardy – recipients of mistaken payments must make restitution, or face the consequences

8 September, 202214 September, 2022

| 1 Comment

| Mistaken payments, Restitution

To err is human, but to really foul things up requires a computer, so we are told. And it gets really dreadful indeed when computer buzzwords like “crypto” get included. And so it is with cryptocurrency trading platform, Crypto.com. In May 2021, it accidentally transferred Aus$10.5m [€7.35m; US$7m; St£6.3m] to an Australian woman, Thevamanogari Manivel, when processing an Aus$100 [€70; US$67; St£60] refund. Although computers were involved, the problem was plain old human error: Manivel’s account number had been accidentally entered into the “payment amount” field. Worse, they failed to notice the error until the following December, seven months later, by which time much of the money had already been given away to six other family members or spent on various luxury purchases, including an Aus$1.35m [€945,000; US$900,000; St£810,000] home in Craigieburn, Melbourne, for her sister, Thilagavathy Gangadory. [Update: Crypto has company – a Texas bank made the same mistake to deposit US$37m in a customer’s account; but, unlike here, the Texas customer alerted the bank and returned the money].

This sounds like a classic exam question, but it is in fact the scenario faced by Elliott J in the Supreme Court of Victoria, Australia, in Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 (26 August 2022).…

Of Schrödinger’s contract and ambiguous terms: when a website mistakenly lists designer trainers for €10, do their ambiguous terms and conditions apply?

5 September, 2022

| No Comments

| Contract, Mistaken offers

In the famous thought experiment proposed by Erwin Schrödinger, a hypothetical cat in a box may be considered simultaneously to be both alive and dead as a result of its fate being linked to a random subatomic event that may or may not have occurred. For reasons that will become obvious a little later in this post, I was reminded of this as I pondered an article by Conor Pope in the Irish Times last week, in which he reported that the upmarket Irish retail store Brown Thomas [BTs] cancelled online orders after it had mis-priced designer trainers at €10 instead of the usual €150. This is a common scenario. To take only two examples, in 2010, Arnotts, which is now part of the BT group, offered an online deal for €98 televisions which also turned out to be too good to be true; and, earlier this year, Morrison’s supermarket website mistakenly listed premium whisky for £2.50. In any event, this is how BTs responded on twitter to their mistaken overpricing:

To our customers, please note we experienced a pricing error on our website this morning. Orders sold at an incorrect price will be cancelled as per our terms and conditions.

…

Some of #RushdiesWords on free speech from Joseph Anton

12 August, 2022

| No Comments

| Censorship, Censorship, Freedom of Expression, Freedom of Expression

Joseph Anton. A Memoir (London, 2012) (cover left) is a memoir by Salman Rushdie.

On Valentine’s Day, 14 February 1989, Ayatollah Ruhollah Khomeini, the Supreme Leader of Iran, issued a legal edict (a fatwa) against Rushdie on the grounds that his novel The Satanic Verses (London, 1988) blasphemed against the Prophet Muhammad. Rushdie spent several years in hiding, using the pseudonym Joseph Anton (a name he chose to honour the writers Joseph Conrad and Anton Chekhov). Joseph Anton. A Memoir is his account of his life in hiding; but it is described as a memoir rather than autobiography because it is written in the third (rather than the first) person.

In the Autumn of 1989, he was invited by the Institute of Contemporary Arts (ICA) in London to deliver the 1990 Herbert Reade Memorial Lecture. Joseph Anton takes up the story:

He knew at once that he wanted to write about iconoclasm, to say that in an open society no ideas or beliefs could be ring-fenced or given immunity from challenges of all sorts, philosophical, satirical, profound, superficial, gleeful, irreverent or smart. All liberty required was that the space for discourse itself be protected.

…

Some practical perspective on the recovery of misdirected payments

2 August, 20222 August, 2022

| No Comments

| Mistake, Mistaken payments, Restitution

I’ve written quite a bit on this blog about payors’ rights to recover mistaken payments from recipients. However, a column in today’s Irish Times makes an important practical point about it. A client of bank who had sought to make a payment of €20,000 into his daughter’s account in a different bank. He had the right details, but the payment never arrived in his daughter’s account. Dominic Coyle dispensed his usual sage, common sense, advice, and the banks are now being helpful, so the enquirer and his daughter will probably track down the money. Meanwhile, Dominic added, almost en passant:

By the way, not that it is relevant here, in cases where there has been an Iban error on the part of the person making the payment, repayment will be requested from the inadvertent recipient. However, I am told, somewhat surprisingly, that that depends on the recipient agreeing to the repatriation of the funds. Otherwise you’re apparently looking at legal action which could make your €20,000 look like chips.

So, he’s right that, where there is a mistake, the recipient of the mistaken payment must make restitution of the mistaken payment. However, he’s also right that, if the matter has to be vindicated in court, the costs could be prohibitive (even if, in principle, the costs should follow the event, so that the plaintiff would recover the mistaken payment and also be entitled to costs).…

It’s good to TalkTalk – Part 2: negligence claims for data breaches

18 July, 202225 July, 2022

| No Comments

| Data Protection, Privacy, Privacy, Tort

1. Introduction

Two recent cases demonstrate two very different privacy issues arising out data breaches suffered by the telecommunications company TalkTalk in 2014 and 2015. Smith v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB) (27 May 2022) concerned claims for damages for both breaches; whilst Sterritt v Telegraph Media Group Ltd [2022] NIQB 43 (09 June 2022) concerned the privacy of one of the hackers involved in the second breach. In my previous post, I looked at the limits of claims for misuse of private information for both breaches in Smith. In this post, I want to look at Smith (again) and at Sterritt, to consider the limits of a claim in negligence in such cases.

2. Negligence claims in Smith

The main problem in Smith is that TalkTalk did not take steps to secure the data involved in the 2014 breach and the 2015 hack. This sounds like a failure to take reasonable care. But a negligence claim in such circumstances was not pleaded, as it was probably precluded by authority.

In Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, [1996] EWCA Civ 1322 (22 March 1996), the plaintiff saw a car which had hit and killed a police officer, and provided that information to the police.…

It’s good to TalkTalk – Part 1: misuse of private information claims for data breaches

15 July, 202218 July, 2022

| 5 Comments

| Data Protection, Privacy, Privacy

1. Introduction

Two recent cases demonstrate two very different privacy issues arising out data breaches suffered by the telecommunications company TalkTalk in 2014 and 2015. Smith v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB) (27 May 2022) concerned claims for damages for both breaches; whilst Sterritt v Telegraph Media Group Ltd [2022] NIQB 43 (09 June 2022) concerned the privacy of one of the hackers involved in the second breach. In this post, I want to look at the limits of claims for misuse of private information for both breaches in Smith. In the next post, I will look at Smith (again) and at Sterritt, to consider the limits of a claim in negligence in such cases.

2. Smith and the 2014 TalkTalk breach: no misuse of private information

In Smith v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB) (27 May 2022) (noted on Panopticon), in September 2014, TalkTalk customers began to receive scam calls purporting to be from TalkTalk, which were ultimately traced to data obtained by users of Wipro, a third party providing network services to TalkTalk. However, Wipro put no adequate controls in place to prevent unauthorised access by its users to the data supplied by TalkTalk.…