Well, I mean, yes idealism, yes the dignity of pure research, yes the pursuit of truth in all its forms, but there comes a point I’m afraid where you begin to suspect that if there’s any real truth, it’s that the entire multi-dimensional infinity of the Universe is almost certainly being run by a bunch of maniacs. And if it comes to a choice between spending yet another 10 million years finding that out, and on the other hand just taking the money and running, then I for one could do with the exercise.

Frankie, one of the white mice in Chapter 31 of The Hitchhikers’ Guide to the Galaxy by Douglas Adams

It seems that a New Zealand couple, faced with a bank error in their favour of NZ$10m (€4.5m), similarly decided that they could do with the exercise: they, too, took the money, and ran; David Randall brings the story up to date in today’s Independent on Sunday (substantially reprinted in today’s Sunday Tribune:

On the trail of the 10 million dollar runaways

A month ago, Leo Gao and his girlfriend Kara were like millions of couples around the world as they struggled to pay their bills and keep their business [a filling station] afloat. Today, they are the subject of an international hue and cry, leaving lawsuits, huffing and puffing private detectives and puzzled police on two continents in their wake. And all because of a mark on a computer screen one fortieth of an inch across …

They were ticketed through to Hong Kong, and had landed and cleared the usual channels before Westpac realised their error. … They moved on to Macau, and started spending like there was no tomorrow, which, in their case, was a plausible assumption. … These days, when taking money off a bank is regarded not so much as a crime as a service to the community, Mr Gao has his admirers. Hundreds have signed up to three Facebook groups, including one with an authentically Down-Under title: “Go Leo Gao – Go You Good Thing”.

But this is not an entirely victimless caper. A family has been divided by greed, poor father of three Mr Antony has lost his job at the filling station, tenants don’t know if they’ll still have a home, and, back in Christchurch, the woman who forgot the decimal point is undergoing trauma counselling. Meanwhile, somewhere in Asia, the spending goes on.

This is a much more frequent occurrence than might be thought. For example, in December of last year, a bank informed a customer that they would advance her an overdraft of St84m, though – unlike the New Zealand couple – in the event the overdraft wasn’t activated! The following month, The Register reported the best excuse given by a customer in receipt of a bank overpayment:

US couple leg it with ‘gift from God’ bank error

A Pennsylvania man is languishing in county jail after he and his wife withdrew more than $175,000 erroneously credited to their bank account and legged it to Florida, … He described the money as “a gift from God”, … A judge was less than impressed with the divine intervention defence, and refused to demonstrate Christian charity by lowering Randy Pratt’s $100,000 bail. His wife, though, is out on unsecured bail, having told the court she’s “estranged from her husband”.

How stupid were they? Let Sean Carter count the ways.

There have even been Irish examples. In February, Eoin Butler of the Irish Times lightheartedly shared his experiences of being made temporarily richer by his bank. Rather more seriously, in 2001, a Bank of Ireland customer intending to emigrate to Spain had asked for St£1,500 to be converted into pesetas and lodged into his Spanish account. However, instead of lodging 316,900 pesetas, the cashier wrote 316,900 euros on the slip and lodged that amount to the customer’s account. According to various news reports at the time, the customer declined to return the money to the bank.

This is a dangerous attitude to take, as retaining money in such circumstances amounts to theft. So, in February 2008, a New Yorker who discovered that millions of dollars had mysteriously appeared in his bank account, and who withdrew more than US$2 million, was charged with grand larceny for doing so; and in August 2007, a woman from Blackburn in Lancashire whose bank balance went from St£6.59 to St£135,000 and who spent the money, was convicted of theft. Moreover, the relevant legislation contains a provision allowing the court to order the recipient to return the money.

However, even if no criminal proceedings are commenced, the recipient will still be liable to return the money. As Skepticlawyer points out, this is staple fare for restitution lawyers, and, in a forthcoming post, I’ll tease through some of the restitution issues that arise. In the meantime, if you have are aware of equivalent stories, please let me know about them in the comments.

The first one’s here. Today’s comes from this week’s New Yorker:

Perhaps rugby is replacing property as the Irish obsession du jour. There are many ways in which they overlap. For example, during the property boom, it was not uncommon for sports clubs to sell off some of their lands to developers, in return not only for the cash but also for improved facilities provided by the developers. Just such a transaction was at issue in Hannon v BQ Investments [2009] IEHC 191 (24 April 2009). A rugby club sold some of its property, and the special conditions of sale provided that the developers would grant the club a right of way over the lands being sold to access the club’s remaining property. In particular, special condition 10 provided

There will be reserved in favour of the [club] for the use of the … pitches and the clubhouse a right of way over the roadway having a width of six metres with a footpath on both sides and appropriate public lighting with the location of the said right of way to be decided upon by the [developer] who will consult with the [club] on the Planning Application with regard to the location of the said right of way.

The basic question for the court was whether the developer’s obligation to construct the road arose simply on the completion of the transfer of the property, or was in some sense conditional upon the club putting in “the … pitches and the clubhouse”. Read the rest of this entry »

The Law Reform Commission last night (pdf) launched its new Report on The Civil Liability of Good Samaritans and Volunteers (pdf), following up on its November 2007 Consultation Paper (pdf) on the issue.

The Common Law does not recognise a duty to attempt a rescue, even where the rescue would be relatively easy, and the Commission recommended against imposing one by statute. However, where a rescuer feels compelled to attempt a rescue, the Commission’s recommendations cover the duty of care owed by rescuers to those being rescued. Read the rest of this entry »

Two defamation stories from the Irish Times. The first concerns an interesting variation on the old defamtion saw, the sting of the libel:

An Irishman’s Diary

… In the Language of Flowers – a Victorian invention by which tortured lovers and the like used to send coded messages – nettles signified “cruelty” or “slander”. So in a sense, Shakespeare’s Cordelia is defaming the symbol of defamation when she lumps nettles (in King Lear Act IV) with “cuckoo flow’rs, darnel, and all the idle weeds that grow in our sustaining corn”. …

The second concerns what seems like an important development in the defence of public interest publication:

Quinn group loses action to limit ‘Tribune’ libel defence

Quinn Insurance Group has lost a High Court bid to strike out parts of the Sunday Tribune’s defence to forthcoming libel proceedings taken against it by the insurance company.

The libel action is over articles alleging the group recruited gardaí to approach solicitors to offer them bonuses on their fees to recommend reduced settlements to clients in cases against Quinn Direct.

Ms Justice Elizabeth Dunne yesterday ruled the defendants had provided adequate details of its plea of justification for the article and also sufficiently set out the nature of the public interest being relied upon to justify the article. …

The Quinn Group says that it fully intends to “prosecute its case to conclusion”, so we may yet learn just how stinging the Sunday Tribune’s allegations are. The judgment is not yet available on Bailii or the Courts’ Service judgments’ database (the time it takes to get judgments onto these websites is a source of ongoing frustration for me, and for others), but as soon as it is, I’ll come back to it.

From today’s Irish Times comes news of a pending claim for restitution of unjust enrichment:

Former Smart Telecom CEO sued for sum of €1.16m

SMART YUROE Broadband (SYB) and related companies have sued former Smart Telecom chief executive Oisin Fanning for more than €1.1 million over alleged unjust enrichment during his time as chief executive.

SYB, Switchcom Ltd and Smart Telecom Holdings Ltd claim Mr Fanning received some €1.16 million in sums allegedly due to the companies for their use while he was chief executive of Smart from September 2004 to September 2006. …

The action against Mr Fanning is the latest of several sets of proceedings involving the company, Mr Fanning and others to come before the Commercial Court following the October 2006 buyout of Smart by SYB, a company controlled by businessman Brendan Murtagh.Mr Justice Peter Kelly yesterday made orders consolidating all the actions and fixed a hearing date for November 3rd next. The proceedings are expected to run for more than four weeks. …

Read more here

Index on Censorship has published a short edited extract from Ideas That Matter: Key Concepts for the 21st Century (Weidenfeld & Nicolson, 2009) by AC Grayling, Professor of philosophy at Birkbeck College, University of London, in which he provides a compelling and pithy case in favour of free speech and against censorship:

It’s a surprise to learn how universal censorship is

While even the most tyrannical regime will pay lip service to free speech, it is a right that is constantly denied.

There are two bedrock civil liberties without which the very idea of civil liberty is empty. They are freedom of speech and due process of law. … The fundamental justifications for freedom of expression are as follows. First, it is an intrinsic right of every individual not to be forced to think, speak and believe at the dictate of others, but to do these things of their own free accord. Secondly, it is of the essence to the possession and protection of other liberties that individuals have this right. Thirdly, in the absence of the first two considerations, the full development of the human individual is vastly more difficult and in most cases not even possible, Fourthly, freedom of expression is essential to the interchange of ideas and views, and discussion of them, without which society cannot be healthy or mature. Fifthly, by means of the fourth point it promotes and aids the quest for truth or at very least sound and responsible knowledge. Sixthly, it is a vital check on government, which can too easily veer into tyranny without it. … the enemy of all that freedom of expression makes possible — the six points, at least, detailed above — is censorship. It comes as a surprise to most people to learn how universal censorship is, even in contemporary Western liberal democracies. … It is ubiquitous and constant. It does vastly more harm than good.

More here, here, here and here.

A little more than a month ago, I wondered why legislators are so loath to repeal criminal libel provisions. However, in a subsequent post, I acknowledged that section 34 of the Defamation Bill, 2006 as introduced provided for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. It now seems that I wrote too soon and that my original skepticism was justified. No sooner had my fingers left the keyboard on the second post than news came that the Bill had returned to the top of the legislative agenda. The Committee on Justice, Equality, Defence and Women’s Rights has begun the Committee Stage of the Bill. Several amendments (pdf) are being considered, almost all of which are retrenchments upon the advances made in earlier drafts of the Bill.

It seems to me that the longer it takes to enact the Bill, the more restrictive it becomes. Nowhere is this more true than in the case of criminal libel. Head 65(1) of the draft Bill appended to the Report of the Legal Advisory Group on Defamation (disclosure: I was a member of the Group) provided for the abolition of the common law offences of criminal, blasphemous, seditious and obscene libel. This would have been a good step forward. However, in the Bill as introduced, the step forward proposed in Head 65(1) had become a little more faltering. The equivalent provision, section 34, provided for the abolition of the common law offences of criminal libel, seditious libel and obscene libel. The reference to blasphemous libel had disappeared. It now seems that this conjouring trick was to make way for the introduction into the Bill of a new crime of blasphemy (see the new section 35 proposed by amendment 40 in the list of amendments currently being considered by the Committee, and to which I shall return on this blog). But, bad as this is, there’s worse. The faltering step forward represented by section 34 as introduced is now to be further amended, to provide:

The offence of defamatory libel is abolished.

The references to seditious and obscene libel have been removed, so they are no longer to be abolished. These are two regrettable, not to say retrograde, steps.

Although the last sentence of Article 40.6.1.(i) of the Constitution does require that blasphemy, sedition and indecency should be offences punishable by law, nevertheless, the first part of that provision guarantees liberty for the exercise of citizens’ rights to express freely their convictions and opinions. It is trite law that rights should be accorded the fullest possible protection and that restrictions should be as narrowly drawn as possible. If ever there was a case for the broad application of a right and a narrow ambit for a restriction, it is provided by the common law libel offences. They are ugly offences; together, they stand as a reproach to democracy, and an affront to the values of pluralism, tolerance and broad-mindedness. Let us have the original version of Head 65(1). Thereafter, we can have a debate about alternative legislation, which deals with blasphemy, sedition and indecency on their own terms rather than as aspects of criminal libel, and which sets them out within as narrow a compass as possible. This probably too much to hope for, though it is the least that the Minister should do.