Law reports from today’s Irish Times:

O’Keeffe v Hickey [2008] IESC 72 Supreme Court, Judgments were delivered on December 19th, 2008 by Fennelly J (Murray CJ and Denham J concurring) and Hardiman J; Geoghegan J dissenting.

Fennelly J Minister not liable for abuse by principal:

There was no employment relationship between school principal Mr Hickey and the second-named defendant, the Minister for Education and Science. On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school, and there is no legal basis for the imposition on the State of vicarious liability in this case.

Hardiman J Minister and State were distanced from management of the school:

… the Minister’s absence of direct control over the first-named defendant prevented a finding against him.

Geoghegan J (dissenting) Exemption from vicarious liability by State is not just and appeal should be allowed:

Applying “the general modern principles underlying vicarious liability”, he allowed the appeal.

In Short: Conference to mark life of Pat Finucane [html | pdf]; Carney lecture in Maynooth; Book on company insolvency; O’Brien -v- Piab solicitors

From the New Yorker, via Slaw:

The question of the return of university fees has been a concern of this blog for some time (see, eg, here, here, here). Via the invaluable Ninth Level Ireland, I learn of three stories this morning on the issue. Cumulatively, they seem to suggest that university fees are looking inevitable (which, I suspect, means that the Minister for Education has managed this debate very well indeed, initially trailing an idea for discussion, then preparing the public for them, and now sitting back while the debate is broadly about what form they should take). Read the rest of this entry »

The national Holocaust Memorial Day commemoration takes place on the Sunday nearest to 27 January every year (that is the anniversary of the liberation of the concentration camp at Auschwitz-Berkenau, and has been designated as Holocaust Memorial Day by the UN General Assembly). This year, it is Sunday 25 January next.

As part of that commemoration, my Trinity colleagues in the Department of History and the Herzog Centre for the Study of Jewish and Near Eastern Religion, along with the Holocaust Educational Trust of Ireland (HETI), will host this year’s annual Holocaust Memorial Lecture this evening.

Dr Nicholas Stargardt, Magdalen College Oxford, author of (among many other publications) Witnesses of War. Children’s Lives Under the Nazis (Random House, 2007; amazon) will speak about

Jewish Children in Hiding

It is in the Thomas Davis Lecture Theatre (Room 2043), in the Arts Block, Trinity College Dublin, at 7:30pm (college maps and directions here). All are welcome to attend. Further information is available here and here.

Update (26 January 2009): Holocaust survivors remember victims with moving Mansion House ceremony

Nate Oman, on Concurring Opinions, writes that he has just finished Simon Schama’s Rough Crossings: Britain, Slaves, and the American Revolution (cover left) (Harper Collins, 2007). He is not sparing in his praise for the book, and then comments:

As a contract geek, however, the most fascinating part of the book was the story of The Zong, an episode that surely must stand as the most hideous example of perverse incentives in the history of contract drafting.

The case is Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, [1783] EngR 85 (22 May 1783) (pdf). It related to a claim against an insurer for the value of cargo thrown overboard from The Zong as a matter of necessity to survive an emergency. The claim succeeded at first instance, but on appeal, Lord Mansfield and Willis and Buller JJ ordered a retrial on the grounds that the evidence as adduced was unsatisfactory. So far, so ordinary. What makes this case extraordinary is that the ship’s cargo consisted of slaves, and the emergency consisted of a lack of water for them to drink when the ship’s captain’s navigation skills failed him and he missed landfall in Jamaica. Read the rest of this entry »

With pending decisions relating to the protection of journalists’ sources in the Supreme Courts in Ireland and Canada, to say nothing of a new movie inspired by the travails of Judith Miller (pictured above left), a student note in the current Columbia Law Review (December 2008, Vol 108, No 8,) is very timely (notwithstanding Ghandi’s quip, above). Here’s the abstract:

David Abramowicz “Calculating the Public Interest in Protecting Journalists’ Confidential Sources”

Most federal circuits recognize a qualified journalist’s privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. They treat it as fixed, an approach that overlooks the reality that certain uses of confidential sources benefit the public more than others. Some judges and commentators have called for a flexible approach toward measuring the newsgathering interest, but their proposals, which rely on an analysis of the value of a confidential source’s information, would yield unpredictable results. These proposals have not gained traction.

This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest. The new guidelines govern the process by which journalists obtain and report information from confidential sources. The Note argues that courts should afford more or less weight to the newsgathering interest based on whether a journalist’s use of information from a confidential source adhered to the guidelines. This approach would align the journalist’s privilege with the public interest without requiring a subjective assessment of information’s news value. Furthermore, focusing the relevant inquiry on the process by which information flowed from a confidential source to the public would solve the problem of defining who is a “journalist” entitled to invoke the privilege.

On the general issue of newsgatherers’ public interest responsibilities, see also Janice Brabyn “Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers’ Confidential Sources in Common Law Jurisdictions” (2006) 69 Modern Law Review 895 (SSRN). And on that last question of who, exactly, is a journalist, there is a growing literature on the extent to which bloggers (self-describing as “citizen journalists” in this context) can properly be described as journalists (Concurring Opinions | EFF | Findlaw); see, eg, Anne M. Macrander “Bloggers as Newsmen: Expanding the Testimonial Privilege” (2008) 88 Boston University Law Review 1075 (BULR (pdf) | SSRN).

Law reports from today’s Irish Times:

Contract based on undermining planning code cannot be enforced
Kelly -v- Simpson: High Court. Judgment delivered by Mr Justice Charleton on December 1st, 2008

A contract based on a price that would not have been achieved but for representations designed to undermine the planning code should not be enforced. [see [2008] IEHC 374 (01 December 2008)].


Permission required for quarry development
Meath County Council -v- Sheils: High Court. Judgment delivered by Mr Justice Hedigan on November 13th, 2008

The intensification of quarrying at a quarry in Co Meath, including the use of blasting, constituted unauthorised development within the meaning of the Planning and Development Act, 2000 and the applicant, Meath County Council, was entitled to orders restraining the respondent from continuing, prohibiting any intensification of the work, and directing the removal of machinery from the site. [see [2008] IEHC 355 (13 November 2008)].


Personal Injuries Assessment Board must deal with solicitors
O’Brien -v- Personal Injuries Assessment Board: Supreme Court, Judgment delivered by Mrs Justice Denham on December 19th, 2008, Mr Justice Murray concurring.

If an applicant to the Personal Injuries Assessment Board (PIAB) wishes to have a legal representative, he or she is entitled to have one. However, PIAB is entitled to send the claimant copies of correspondence with the solicitor, in order to keep the claimant informed. [see [2008] IESC 71 (19 December 2008)].

From John Naughton’s column in today’s Observer

By reading this, you agree to stop adding useless disclaimers

… consider the curious legalese that is increasingly appended at the foot of emails dispatched from corporate email servers. … A friend sends you an email saying “How about lunch?” and it comes with this implicit threat that if you so much as breathe a word of it to any living being the massed litigators of Messrs Sue, Grabbit and Runne will descend upon you. The practice is now so widespread that most of us have become inured to it. …

The funny thing is that the practice is, at best, legally dubious. “The value of disclaimers is limited,” writes Simon Halberstam (of Sprecher Grier Halberstam) in an article on weblaw.co.uk, “since the courts normally attach more weight to the substantive content of the communication and the circumstances in which it is made than to any disclaimer. Having said that, disclaimers may possibly be helpful if an issue ends up in court in various respects … and, since disclaimers cost (almost) nothing, it is worthwhile to use them.”

But don’t forget that, in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, [1963] UKHL 4 (28 May 1963), the case that established liability in principle for negligent misrepresentation, a disclaimer was effective!