By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In the classic triangular fact pattern, it arises where a creditor has rights against a debtor, and the claimant is subrogated to the rights of the creditor against the debtor. It is a doctrine which admits of many possible explanations. For example, on the view taken by Meagher, Gummow & Lehane, subrogation largely follows a similar pattern in a series of otherwise unconnected islands: they are content to set out the categories, which, for them, are not closed, and to conclude that there are no universally applicable criteria for the intervention of equity in such cases. On another view of subrogation, taken by Hedley, and by Lord Salmon in Orakpo v Manson Investments [1978] AC 95 (HL), there are some relatively loose connections between the specific contexts but only at an abstract level: Hedley argues for a broad general principle that (subject to defences) the claimant can exercise whatever rights the creditor would, but for the claimant’s payment, have had against the debtor; whilst Lord Salmon argued for an “entirely empirical … principle … that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be”. A third view of subrogation, exemplified by Blayney J in Highland Finance v Sacred Heart College of Agriculture [1998] 2 IR 180 (Ir SC), holds that the claimant can be subrogated to the third-party’s claims against the defendant because this was the presumed or actual intention of the parties.

Finally, a fourth view of subrogation has recently emerged: for Mitchell and Watterson, there are tight connections and similarities where the specific contexts are united and explained by the principle against unjust enrichment; and this explanation was adopted by Lord Hoffmann in Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, 223; [1998] UKHL 7 (26 February 1998). Now, in Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009), the High Court of Australia has confirmed that, as a matter of Australian law, the doctrine of unjust enrichment does not explain the doctrine of subrogation. Their honours do not explain which of the other three explanations, if any, might explain the doctrine; but they are clear that it is not within the bailiwick of unjust enrichment. For what it’s worth, I think that Banque Financière is unsustainable, and that the best of the other three explanations is that based upon the presumed or actual intention of the parties. So, I welcome the rejection of the unjust enrichment explanation in Bofinger v Kingsway. Read the rest of this entry »

Shane Coleman has a fascinating piece in today’s Sunday Tribune (with added links):

Ban on corporate donations could face legal action

A key part of the newly revised programme for government [scribd, see pp34-35] to end corporate donations to individual politicians and political parties could be open to constitutional challenge … [there is] “definitely a freedom of expression issue” about such a move and that it was “not straightforward”.

… however … the Supreme Court here has previously upheld restrictions on political advertising for reasons that “could sustain the validity” of a ban on donations to individual politicians and parties. … legislation attempting to regulate expenditure in US elections had been struck down by the US Supreme Court on freedom of expression grounds and that the European Court of Human Rights had also raised questions about such restrictions. Emphasising again the broadcast ban on political advertising, … [it is] “open question” as to whether the arguments made in the US on freedom of expression were “as strong in an Irish context” … [especially because] the Irish constitutional protection of freedom of expression was “not a particularly strong one”.

[On the other hand], speaking to the Sunday Tribune, environment minister and Green Party leader John Gormley [pictured top left] said he was confident the ban would be legally sound: … “If you have a situation as in the United States, where you have the best democracy money can buy, that is not conducive to a fairer, more equal society”.

Patents encourage innovation – an inventor who is awarded a patent over an invention can exploit it and profit from it, at least according to the Irish Patents Office. Innovation therefore matters, and Innovation Dublin 2009, a week long festival of public events aimed at promoting and stimulating innovation and creativity in the city, begins today. The festival, co-ordinated by Dublin City Council, is a key project of the Creative Dublin Alliance (press release | Ferdinand | Karlin), a collaborative group made up of Dublin local authorities, universities, state agencies, businesses and the not-for-profit sector, which was launched in Trinity’s Science Gallery earlier this year. According to a TCD Communications Office press release:

As part of Innovation Dublin 2009 Trinity College has planned a range of seminars, showcases, discussions, workshops and exhibitions promoting both Dublin and Trinity College as an energetic, diverse and innovative place to learn, live, work and create. Events within Trinity will range from interactive technology showcases to the analysis of medieval manuscripts; from virtual exhibitions documenting living histories of older Dubliners to a forum on the generation of ideas.

Doubtless, some of this innovation will lead to patents, especially in the universities. In my earlier post on Universities and Patents, I referred to the decision of French J in Federal Court of Australia in University of Western Australia v Gray (No 20) [2008] FCA 498 (17 April 2008) in which UWA failed to assert a patent over anti-cancer technologies developed by the defendant, who had been a member of its academic staff. UWA appealed, and in University of Western Australia v Gray [2009] FCAFC 116 (3 September 2009), the Full Court of the Federal Court upheld the decision of French J (unsurprisingly, the UWA has sought leave to appeal to the High Court of Australia).

It is an important judgment, covering a wide range of issues relating to innovation, universities and patents. Read the rest of this entry »

Legal Eagle on SkepticLawyer writes:

Fawlty Towers fights back

My parents just came back from a holiday in Europe, and were telling me about one of the less salubrious hotel rooms they experienced. … [They] were contemplating writing a review for a travel website to warn other travellers that this purportedly “four star” hotel was not all it was cracked up to be.

Still, it seems that, as this piece suggests, it’s worth thinking hard before you write a review which is critical:

Travellers who post scathing reviews or comments about hotels or restaurants could be exposing themselves to long and costly legal battles …

You think this is far-fetched? Well, read my post about what happened when Sydney restaurant Coco Roco got an unfavourable review… A majority of the High Court found that the review was defamatory (and overturned the conclusion of the jury on that point).

I think this is a dangerous precedent. If you serve up food which is not to a reviewer’s taste, or your hotel was not to your guest’s liking, what you need to do is listen to the criticism, and see if there is any merit in it.

I think Legal Eagle is vastly overstating the problem here. First, in the High Court case to which she refers (John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291, [2007] HCA 28 (14 June 2007)), the Court held that the review could in principle bear a defamatory meaning, but the case turned on a matter of procedure by which the proceedings were being conducted ahead of any consideration of the newspaper’s defences. In such cases, even if reviews are in principle capable of being defamatory, they will almost always attract the benefit of the defence of fair comment. In Ireland, section 20(1) of the Defamation Act, 2009 has rebadged fair comment as honest opinion and defined it as follows:

It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.

So, if you honestly hold your opinion that the hotel was terrible, then you will be able to establish the defence. Just don’t mention the war.

“Better that ten guilty persons escape than that one innocent suffer”

William Blackstone Commentaries on the Laws of England (vol 4) 358

With very little coverage (Day 1: Irish Times here and here | RTÉ; Day 2: Irish Times), a case which had the capacity to make a fundamental change to Irish defamation law was decided in the Supreme Court at the end of last week. Two members of the Birmingham Six have taken defamation proceedings against leading English human rights barrister Sir Louis Blom-Cooper QC (pictured left). Blom-Cooper sought to have the case struck out on the basis that his expression of opinion was constitutionally protected. However, the Supreme Court allowed the case to proceed, and (if the press reports are accurate) ducked the constitutional question, at least for the time being.

The story begins with the presumption of innocence, embodied in the quote from Blackstone, above. In Woolmington v DPP [1935] AC 462, [1935] UKHL 1 (23 May 1935) Viscount Sankey held that “the presumption of innocence in a criminal case is strong”, and emphasised, that throughout the web of the criminal law,

… one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law … and no attempt to whittle it down can be entertained.

Furthermore, it is now clear that the presumption of innocence does not merely apply during the course of a trial. In R v Hickey [1997] EWCA Crim 2028 (30 July 1997) the Court of Appeal in England held that, where an appeal court quashes convictions, the presumption of innocence in respect the appellant is re-established. In J O’C v DPP [2000] IESC 58 (19 May 2000), Hardiman J referred to Hickey and other cases to conclude that

… the presumption of innocence applies to all unconvicted persons. This is so whether they are unconvicted because the trial has not yet taken place or because a conviction has been quashed.

The whole issue is brilliantly treated in Claire Hamilton’s superb book The Presumption of Innocence in Irish Criminal Law. ‘Whittling the Golden Thread’ (Irish Academic Press, Dublin, 2007). However, at least in the context of convictions set aside on appeal, this was not an incontestable view of the law. In 1997, Blom-Cooper, argued that the Court of Appeal got it wrong in the Hickey case, and that the presumption of innocence persists until a conviction, but once it is gone, it is not revived by the quashing of the conviction on appeal.

Commentators disagree with judges all the time. Indeed, I have done so regularly on this blog. And Blom-Cooper is an outspoken commentator who regularly argues for alternative views of the law. However, in this case, he may have gone too far. He made this argument in a pamphlet called The Birmingham Six and Other Cases. Victims of Circumstances (Duckworth, 1997). In it, he examined recent miscarriages of justice, such as the case of the Birmingham Six (pictured left), to raise once again his longstanding objections to the current system of trial by jury and to explore the consequences of the professional failure to explain the function of the Court of Appeal. Two of the Birmingham Six, Gerry Hunter and Hugh Callaghan, sued Blom-Cooper and his publisher, Duckworth, for defamation, alleging that various comments made by Blom-Cooper in the pamphlet constituted both an overt and a covert attack upon their innocence.

Once the Irish High Court had held that the case could be brought in Dublin, Blom-Cooper sought to have the case struck out on the basis that he had done no more than to express an opinion, which was a right absolutely protected by the Irish Constitution. It was an extraordinary claim – the right to freedom of expression protected by Article 40.6.1(i) of the Irish Constitution is still under-developed, and was considerably more anaemic ten years ago – but the argument held out the prospect of improving this state of affairs. Read the rest of this entry »

In the 21st century, the power to censor is not just a matter of state action, and 21st century censorship requires 21st century responses. From the Index on Censorship Free Speech Blog, John Kampfner, CEO of Index on Censorship, writes about their day of action against 21st Century censorship (some links in original, some added):

The new free expression debates

On the morning of Monday 12 October, Index on Censorship will be teaming up with Policy Exchange and Google to discuss free expression and the Internet. Later that day, Liberty and Index on Censorship will stage Protest! an exciting event encouraging students to exercise their right to free speech, with special guest Sir Hugh Orde, head of the Association of Chief Police Officers.

Why, people might sensibly ask, is Index on Censorship engaging with one of the world’s leading technology corporations and one of Britain’s top police chiefs? The answer is because we no longer see free expression only through the traditional prism of outright state censorship of or violence against writers and journalists.

The issue is more complex than that now. …

More here.

The recently renegotiated Programme For Government (doc | pdf | scribd) between the Green Party and Fianna Fáil contains the following clause:

Conscious of the economic pressures on parents today, this Government will not proceed with any new scheme of student contribution for Third Level education.

So, that’s it then, the reintroduction of third-level fees is off the agenda for the lifetime of the current government.

Update: Ferdinand von Prondzynski writes that the decision

… will come back to haunt us. It is a bad decision, made for the wrong reasons. … As the taxpayer is in no position to increase funding, or even maintain the existing totally inadequate levels, we are now facing a situation where the increasingly scarce resources will be concentrated on the wealthier sections of the population and the disadvantaged will be neglected. In addition, the sector as a whole will be asset stripped and will be unable to compete. … I have been at the coalface now for a decade of trying to maintain a world class system of education with the resources that increasingly reflect the aspirations of a developing country. This decision may save votes, but will do long term damage to the sector. It is a bad day for higher education.

From PhD, an observation of universal resonance: