As with the first set of parallel sessions, the second set of parallel sessions in the third Legal Education Symposium also covered a diverse range of interesting topics, including experiential learning, web 2.0 and teaching law in a global context. Read the rest of this entry »

The first set of parallel sessions in the third Legal Education Symposium covered a wide range of fascinating topics, including experiential learning, assessment, and interdisciplinary law degrees. Read the rest of this entry »

The theme of the morning plenary session of the third Legal Education Symposium was

Teaching experiences in legal education

It was chaired by UCD School of Law’s new Dean, Prof John Jackson, and the session examined the various ways in which the traditional legal curriculum could develop, including the integration of clinical education and interdisciplinary perspectives. Read the rest of this entry »

Following the first symposium in Trinity College Dublin and the second in University College Cork, third Legal Research Symposium is ongoing today, hosted by University College Dublin’s School of Law in the Quinn School of Business (pictured left). The theme for this year’s symposium is Legal Education in Context and In Practice. Organised this year by Prof Blanaid Clarke and Dr Marie-Luce Paris-Dobozy, this year’s symposium is sponsored by UCD’s Law School, whose generosity is all the greater in these more straitened financial climes.

Irish legal education faces many challenges, some shared with the rest of the university sector (the impending re-introduction of fees, government policy favouring ever greater co-operation (integration?) by universities especially at the graduate level, all in a difficult financial climate), some specific to Law Schools (the peculiar problems faced by academic law schools faced with professional obligations, whilst seeking to facilitate international research in a small jurisdiction). This symposium is a significant annual contribution to these important ongoing debates.

Caption: Hey boss. I’m not sure our covert surveillance is real covert any more

In general, the public interest in the proper administration of justice requires that people called as witnesses before courts must answer all questions put to them, on pain of being held in contempt of court. However, the common law has recognised some exceptions, such as the privilege of the police to be able to refuse to identify their sources, or that of lawyers or doctors to refuse to answer questions about conversations with clients. In such cases, there is a countervailing public interest in favour of encouraging full disclosure between the parties to the relationship. The categories of relationship which attract such privilege are controversial; it has been claimed to cover the relationship between journalists and their sources, or that between priests and their penitents – some jurisdictions recognise these extensions, some don’t (in Ireland – exceptionally in both cases – the former is an open question, and the latter is recognised).

In the way of these things, I have come across two interesting contributions to the deabte about the nature of such evidential privileges. In the first, In re McE [2009] UKHL 15 (11 March 2009) (also here) the House of Lords (Lord Hope, Baroness Hale, Lord Carswell and Lord Neuberger for the majority; Lord Phillips dissenting) held that that the the Regulation of Investigatory Powers Act 2000 (RIPA) allows for covert surveillance of communications between lawyers and their clients, even where these are covered by legal professional privilege. The case has significant implications for the malign impact of RIPA upon privacy rights, but it also contains some important discussions of the nature of legal professional privilege.

First, Lord Hope and Baroness Hale (in the majority) treated legal professional privilege as a procedural and evidential matter, whereas Lord Phillips (dissenting) thought that it had went further and extended into a substantive fundamental right. Lord Nueberger (also in the majority) referred to the very closely connected “right of a person to consult a lawyer in private, and the right to legal professional privilege in connection with communications with one’s lawyer”. Lord Carswell (delivering the main speech for the majority) acknowledged that legal professional privilege is now being spoken of in terms of substantive rights, but did not feel it necessary to decide whether the evolution postulated by Lord Phillips (and, it seems, assumed by Lord Nueberger) had in fact taken place. This distinction matters: if legal professional privilege is seen in procedural evidential terms, it is easily displaced by a countervailing public interest; on the other hand, if it is seen as a substantive and fundamental human right, it is much harder to displace, except by express legislative enactment. In other words, the status, strength and limits of legal professional privilege as a privilege or a right are still being tested.

Second, there was much discussion of the principle that there is no privilege in iniquity, so that communications between a lawyer and client that are in furtherance of crime or fraud are not protected by legal professional privilege; but all were agreed that this applied to the privilege whether it is a procedural and evidential issue, or a matter of substantive right. In the Yale Law Journal Pocket Part (an online companion to the Yale Law Journal) Colin Miller (profile | blog) has just published a piece on evidential privileges which argues that all such privileges must serve competing interests which are not undercut by such crime-fraud exceptions; see Colin Miller “A Public Privilege” 118 Yale LJ Pocket Part 166 (2009) (mp3 podcast). On the nature of legal professional privilege (or, in US terms, attorney-client privilege) he says

… no privilege is an island, entire of itself, and, as the Supreme Court announced in Jaffee v. Redmond, all privileges must further both private interests and public ends. The attorney-client privilege is no exception. As the Supreme Court articulated in Upjohn Co. v. United States, the purpose of the privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Indeed, the core premise of the privilege is “that sound legal advice or advocacy serves public ends.”

He then argues that these public ends are bolstered by the crime-fraud exception. The aim of the piece is to reason by analogy from that conclusion to the context of a statutory journalist source privilege (or, in US terms, “shield law”) to support the argument that the latter statutory privilege should also be subject to the crime-fraud exception, despite a recent state court decision to the contrary.

From an Irish perspective, we must await the decision of the Supreme Court on the existence (and, if it exists, the extent) of a journalists source privilege, so we must put that aspect of Miller’s analysis aside for a while. Similarly, not being blessed or cursed (yet?) with an equivalent of RIPA, we can also (and quite happily) put that aspect of the decision of the House of Lords in In re McE to one side. What remains in both cases is a revealing discussion of the nature and limits of legal professional privilege. For my own part, I would be slow to make too much of the analogy from one form of evidential privilege to another. If legal professional privilege is evolving into a substantive right, then its contours will be informed by considerations that do not necessarily apply in other contexts – in particular, arguments that it can be displaced simply by countervailing public interests (which might be sufficient in the context of other privileges) will be much harder to sustain. Again, it is perfectly plausible that the rationale in favour of the crime-fraud exception could be much stronger in the context of one privilege than of another.

Suppose you see a runaway truck, and seek to stop its progress before it does real damage – what legal claims arise? In an earlier post, I referred to two of the possible claims: first, if you stop it from injuring others, but are yourself injured in the process, you can sue the tortfeasor who released the truck in the first place. Second, if you are negligent in the process, you might yourself be liable in negligence to anyone you injure. But there is a third; if your rescue confers a benefit upon someone, such as the owner of the truck, then you might have an action in restitution for unjust enrichment against the owner of the truck.

This all sounds like a classic exam question, but it has recently happened. Yesterday’s Times has an interesting story raising all of these issues:

Robert Moore snubbed by Royal Mail after he stopped runaway post van

The Royal Mail is being accused of ingratitude after criticising a man who stopped a 2-tonne runaway post van from careering over a busy main road. Robert Moore, 63, an artist, cracked a rib and injured a knee as he tried to stop the Transit van rolling down a hill when the driver forgot to apply the handbrake. But, instead of thanking him for his quick thinking, Royal Mail’s lawyers accused him of recklessness and putting his life in danger. …

The incident occurred in September when Mr Moore saw the Royal Mail van rolling backwards towards a junction in Bristol. He ran alongside and opened the driver’s door but was unable to reach the handbrake. Despite injuries to his legs, which were scraped along the road, he helped to stop the van before it reached the main road. He suffered a cracked rib and injured knee and instructed his solicitor, Metcalfes, of Bristol, to inquire if he was entitled to compensation. …

It seems from this that Moore sought to take a negligence action against the Royal Mail. As the propositions above demonstrate, his negligence action is against the tortfeasor who allowed the runaway truck to escape and there is nothing in the article to suggest that the Royal Mail was negligent in that respect. On the other hand, he could very well have an action in restitution for unjust enrichment against the Royal Mail, since his actions conferred an obvious and incontrovertible benefit upon them. Indeed, they have changed their tune; the article concluded:

Royal Mail apologised yesterday for the letter and promised to investigate. A spokesman said: “We would like to apologise to Mr Moore for the handling of this case and we are discussing the matter with him and his legal representatives.”

More coverage: here (Bristol Evening Post), here (Bristol Evening Post again), here (Daily Telegraph), and here (The Register).

The English Court of Appeal recently considered two interesting issues in Furmans Electrical Contractors v Elecref Ltd [2009] EWCA Civ 170 (10 March 2009). Furmans were subcontractors installing electrical cabling on jobs on which Elecref were electrical contractors. In early September 2007, a dispute arose as to the basis on which Furmans were remunerated; in particular, Elecref claimed that they had been overcharged. In early October, Elecref made one further payment on foot of an invoice from Furmans, but thereafter declined to make any further payments on foot of invoices covering various periods from August to October. Furmans sued to recover those amounts, and Elecref counterclaimed for the overpayments.

Waller LJ (Arden and Moore-Bick LJJ concurring) effectively allowed Furmans’ claim but dismissed Elecref’s counterclaim, and in doing so made two interesting comments. Read the rest of this entry »

William VIII, Duke of Brunswick (pictured left; 1806-1884) was ruling duke of the Duchy of Brunswick from 1830 until his death. A famous eccentric, he bequeathed at least two interesting events to history. First, he lost a famous chess game to Paul Morphy (the Bobby Fischer of his era). Second, he won an infamous libel appeal which now governs internet publication at English and Irish law.

The rule in Duke of Brunswick v Harmer (1849) 14 QB 185 is that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period; it has been followed at the highest levels (Berezovsky v Michaels [2000] UKHL 25 (11 May 2000); Dow Jones v Gutnick (2002) 210 CLR 575, [2002] HCA 56 (10 December 2002)) and in the online context (Godfrey v Demon Internet Ltd [2001] QB 201, [1999] EWHC QB 244 (26 March 1999); Dow Jones v Gutnick again). US law is different: a defamatory publication gives rise to a single cause of action for libel, which accrues at the time of the original publication, and that the statute of limitations runs from that date (see, eg, Gregoire v GP Putnam’s Sons 81 NE 2d 45 (1948)).

In Loutchansky v Times Newspapers [2002] QB 783, [2001] EWCA Civ 1805 (05 December 2001) the Court of Appeal declined to follow the US rule and instead reaffirmed Duke of Brunswick v Harmer. The Court declined to “accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression”, and held that it applies to internet archives. In effect, every time a newspaper’s online archive is accessed, there is a new publication and the limitation period starts to run from that date, and not from the date of the original publication. This proposition has significant consequences for freedom of expression (see Amanda Russell and Margaret Smillie [2005] JILT 3). In the European Court of Human Rights, the Times therefore argued that the rule in Duke of Brunswick v Hamer exposes publishers to potential litigation without time limit, and therefore infringes Article 10 of the European Convention on Human Rights.

In Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom (Applications 3002/03 and 23676/03, 10 March 2009) the ECHR (fourth section) unanimously held that there had been no violation of Article 10 on the facts of Loutchansky: Read the rest of this entry »