cearta.ie – the Irish for rights

A little while ago, I read Claire North’s 84K (Orbit; Little, Brown Book Group, London, 2018) (cover left). It is a stunning novel, vividly conceived and brilliantly executed, and I cannot recommend it highly enough. But my reasons for mentioning the novel here concern not so much its literary merits, but also how best to describe the world so chillingly realized within its pages.

Published after the Brexit referendum, but before the UK had left the EU, it is set in a post-Brexit England of the very-near future, where (a man called) Theo Miller works in the Criminal Audit Office. His job is to assess crimes and calculate the indemnity that the perpetrators must pay to ensure their debts to society are paid in full. Those unable to pay the indemnity are set to forced-labour in prison. The indemnity system is regularly described in the book as much more efficient than the alternatives. Moreover, everything is run by a company that’s owned by a company that’s owned by THE Company. In the ultimate example of business efficiency taking over from creaking public authorities, the government has licensed the Company to collect taxes: the Company pays the government £400b and keeps any profit above and beyond that.…

If Equity can develop new orders when necessary, can it develop anti-SLAPP orders? Part 1: new equitable orders

12 August, 202118 August, 2021

| 1 Comment

| Defamation

In a tweet a little while ago, I wondered:

If Equity can develop new orders/injunctions when necessary (eg Cartier v BT [2018] UKSC 28 [15] (Sumption)), can it develop anti-SLAPP orders?

The answer to this question falls into two stages. The first, which I will consider in this post, is the extent to which equity can generate a new order or injunction. If it can, then the second stage, which I will consider in a future post, is whether it can develop a new order or injunction to prevent strategic lawsuits against public participation (anti-SLAPP orders).

The answer to question whether equity can generate a new order or injunction, and the background to Cartier, begins with section 25(8) of the Judicature Act, 1873, which provided that a “mandamus or an injunction may be granted or a received appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just and convenient”. In Beddow v Beddow (1879) 9 Ch D 89 (pdf), Jessel MR held that if “this can be done on by interlocutory application a fortiori it can be done at the trial of the action”.…

A short note on the quantification of enrichment in HKR Middle East Architects Engineering LC v English

28 July, 20213 September, 2021

| 1 Comment

| Restitution

In two previous posts (here and here), I have looked at issues arising out of McDonald J’s judgments in HKR Middle East Architects Engineering LC v English (No 1) [2019] IEHC 306 (10 May 2019); (No 2) [2021] IEHC 142 (3 March 2021); (No 3) [2021] IEHC 376 (31 May 2021). In HKR v English (No 1) McDonald J held that English had been unjustly enriched at the expense of HKRME. However, he valued that enrichment, not as the full US$8,094,873 ultimately paid to English, but as limited to the (probably substantially smaller) amount of HKRME’s unpaid and lawful liabilities. And he directed that an account should be taken of those liabilities. In both HKR v English (No 2) and HKR v English (No 2), McDonald J affirmed this conclusion.

In my first post, I pointed out that a cause of action for restitution of unjust enrichment is complete when the payment is made by the plaintiff and received by the defendant, so that the defendant’s enrichment is the amount paid by the plaintiff. This is because, where the enrichment is the payment of money, complex questions seldom arise (Dublin Corporation v Building and Allied Trade Union (the Bricklayers’ Hall case) [1996] 2 IR 468, 483; [1996] 2 ILRM 547, 558 (html) (Keane J; Hamilton CJ, O’Flaherty, Blayney and Barrington JJ concurring); Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs (No 3) [2021] UKSC 31 (23 July 2021) [FII (No 3)] [170] (Lords Reed and Hodge (in a joint judgment; Lords Briggs, Sales and Hamblen concurring)).…

Who will come first, Godot, or an Irish Minister for Justice bearing defamation reform? – updated

20 July, 202129 July, 2021

| 2 Comments

| 2016-17 Reform, Defamation

Two years ago, the EU established the European Rule of Law Mechanism as a process of dialogue on rule of law issues between the EU institutions, the Member States, and civil society. 2020 saw the first of the annual reports. One of the issues highlighted in the report for Ireland related to the long-stalled process of defamation reform. In the intervening year, nothing has happened on the issue (understandably: there’s been a pandemic). However. it does feature in the Department of Justice Action Plan for this year, so the Commission, regarding the glass as half-full, has chosen to accept that at face value, and to welcome the prospect of reform before the end of the year:

… Amendments to the Defamation Act, foreseen for adoption in the coming months, are expected to have a positive impact on the operation of journalists. … Following the announcement of the plans to revise the 2009 Defamation Act¹¹¹, the Irish Government is finalising a statutory review. A new Scheme of Defamation could be presented by the end of 2021. As highlighted by stakeholders¹¹², the current regime enables to impose a disproportionately high amount of damages for defamation, which can have a negative impact on journalistic freedom.

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Over 100 International IP Academics Sign An Open Academic Letter in Support of the TRIPS Waiver

13 July, 202113 July, 2021

| 1 Comment

| Intellectual property

Over 100 international IP academics have supported an open academic statement co-authored by Dr Hyo Yoon Kang (Kent Law School), Dr Siva Thambisetty (London School of Economics), Dr Aisling Macmahon (Maynooth), Dr Luke McDonagh (London School of Economics) and Prof Graham Dutfield (Leeds) which provides academic justification and support for the TRIPS Waiver proposal that is currently being negotiated at the World Trade Organisation.

The Irish signatories include Prof Susi Geiger (University College Dublin), Dr Cliona Kelly (University College Dublin), and myself.

From the page announcing the letter:

The letter calls on the governments of the United Kingdom of Great Britain and Northern Ireland, Australia, Brazil, Japan, Norway, Switzerland and the European Union to drop their opposition to the TRIPS Waiver proposal at the World Trade Organisation and to support the waiver.

The letter states that the TRIPS waiver is a necessary and proportionate legal measure towards the clearing of existing intellectual property barriers in order to scale up of production of COVID-19 vaccines and therapeutics. It provides concise legal, political and moral justifications for the need for the Waiver as an integral part of a multi-pronged approach that must also include: global co-ordination of supply chains; streamlining regulatory approval processes and sharing exclusive data from regulatory dossiers; and investment in the WHO’s C-TAP and the mRNA technology transfer hub in South Africa.

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Was there an automatic resulting trust HKR Middle East Architects Engineering LC v English?

21 June, 202121 June, 2021

| 2 Comments

| Restitution, Trusts

In my previous post, I discussed the unjust enrichment claim that was at least partially successful in in HKR Middle East Architects Engineering LC v English (No 1) [2019] IEHC 306 (10 May 2019); (No 2) [2021] IEHC 142 (3 March 2021); (No 3) [2021] IEHC 376 (31 May 2021). In this post, I want briefly to discuss a trust point that was not taken in the case that may have availed HKRME. In HKR v English (No 3) [2}, McDonald J recorded that, in the first stage of the case, HKRME claimed

… that the monies transferred from HKRME to the BVI entity [Sunvit] were held on trust for the children of Mr Ryan under a trust known as the Ryan Children’s Trust (“the RCT”). For reasons which are explained in the principal judgment, I came to the conclusion that, at least insofar as it purported to relate to the monies transferred to the BVI entity, the alleged trust was a sham and that the intended beneficiary of the transfers (subject to the unpaid liabilities of HKRME) was not any such trust but was instead Mr Ryan himself who had put the relevant arrangements in place with a view to concealing assets from his creditors.

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Unjust enrichment by failure of consideration: HKR Middle East Architects Engineering LC v English

17 June, 202127 July, 2021

| 3 Comments

| Restitution

The Abu Dhabi Plaza (pictured left), in Nur-Sultan (formerly Astana), the capital city of Kazakhstan, is the highest building in Kazakhstan and Central Asia. It was designed by HKR Middle East (HKRME) Architects in the United Arab Emirates, whose principal was Dublin architect Jeremiah Ryan. To keep his UAE receipts beyond the reach of his Dublin creditors, between April 2012 and March 2013, Ryan directed HKRME to pay US$8,094,873 to Sunvit, an entity in the British Virgin Islands controlled by the defendant, Barry English, a Director of one of Ireland’s leading engineering companies. While the monies were notionally received by Sunvit, McDonald J held that English was in fact the real beneficiary, and that Sunvit was no more than a vehicle to receive funds on his behalf. HKRME sued English for the return of the monies. In a series of judgments, in HKR Middle East Architects Engineering LC v English (No 1) [2019] IEHC 306 (10 May 2019); (No 2) [2021] IEHC 142 (3 March 2021); (No 3) [2021] IEHC 376 (31 May 2021), HKRME’s claims in trust, contract, and breach of UEA law, failed. However, McDonald J held that the consideration for the payments to Sunvit had failed, such that the defendant had been unjustly enriched at the plaintiff’s expense.…