Month: December 2010

From the Carbolic Smoke Ball Company:

The text of the Legal Requirements of Christmas Cheer card pictured above provides: (more…)

A little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.

At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works. The fundamental (even if increasingly questioned) justification for this development is that the copyright monopoly encourages the creation of original works.

This development of copyright has been a very slow process, but two current issues are putting significant pressure on this slow pace. The first is the evolution beyond the static to the plastic described by Johnny Ryan; the second is that the rate of this change is exponentially faster than heretofore. Copyright rules rules created for static texts which at best change slowly are rules that are ill-adapted to faster change and inappropriate to the modern reality of plastic texts. (more…)

Last month on this site, I posed the question: why do we need a Censorship of Publications Board? It was a rhetorical question; in my view, we don’t need one at all.

The Censorship of Publications Board was established by section 3 of the Censorship of Publications Act, 1929 (also here), with the power (under section 6 (also here)) to prohibit the sale of any book which

… is indecent or obscene or advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or such procurement …

Its procedures are governed by the Censorship of Publications Regulations, 1980 (SI No 292 of 1980), and the Department of Justice website contains the Register of Prohibited Publications of December 2009 (here: pdf). A piece by John Byrne in today’s Irish Times (with added links) not only reinforces my view that we no longer have need for such paternalism, but also gives grounds for optimism that we will soon no longer be subject to it:

What a shocker: no more books to ban

After 80 years of censorship from a board once internationally notorious for its prurience, the last remaining book to be banned in Ireland on the grounds of obscenity will have its prohibition lifted this year, …

On May 9th, 1930, a year after the passing of the initial Censorship of Publications Act, [Aldous] Huxley’s novel [Point Counter Point, above left] became the Act’s first casualty. Banned on the grounds that it was “indecent and obscene”, it earned the dubious historical honour of being recorded as the first entry in the first volume of the Register of Prohibited Publications. Sixty-eight years and 12,491 prohibitions later, The Base Guide [to London] remains the final entry in the register’s final volume. …

In the 12 years since this last prohibition, the Censorship of Publications Board – at one time internationally notorious for its prurience and moral conservatism – has not banned a single title. … Under the terms of the 1967 Censorship of Publications Act, books deemed “indecent or obscene” have their prohibitions revoked after 12 years. With The Base Guide removed from the banned list along with 14 other titles likewise prohibited in 1998, the board’s long war against indecent and obscene books will, effectively, be over. For the first time since formal censorship began, not a single title banned on these grounds will remain on the register.

… the register will not, come December 31st, be entirely cleared of its backlog of prohibitions. There are, for instance, 279 periodicals still listed … [which will] remain banned until their prohibition is successfully appealed, … As far as books are concerned, eight lonely titles stand exempt from the 12-year amnesty that will shortly release The Base Guide et al. This group … will remain prohibited under current legislation that prohibits publications deemed to “advocate or promote” the procurement of abortion, waiting with faint hope for the unlikely day when a qualified party might launch an appeal on their behalf. …

It is very difficult to find official information online about this censorship regime (apart from short entries on the Department of Justice and Citizens Information websites – there is no official website or independent home for the Board, which now resides c/o the Irish Film Classification Office). Our current censorship regime is hidden in the shadows, and is being allowed to decline in obscurity:

Dust in sunlight and memory in corners
Wait for the wind that chills towards the dead land.

Perhaps this neglect is because it embarrasses our lords and masters. It certainly embarrasses me. But instead of letting it wither quietly into oblivion, we should have the courage publicly to abolish it. The sooner Fine Gael’s Bonfire of the Quangos does away with this monument to our forefathers’ self-consciousness, the better.

In Watters v Independent Star [2010] IECC 1 (3 November 2010) Matthews J in the Circuit Court handed down the first reserved decision under the Defamation Act, 2009 (also here). We will soon have the second. The politician Michael Lowry TD (pictured left) has taken a defamation action against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. I’ve already blogged about an earlier procedural skirmish in the case. The full action was heard today. According to the RTÉ news website (with links added by me to the relevant sections of the 2009 Act):

Mr Lowry says that Mr Smyth’s assertions portrayed him as corrupt, dishonest and untrustworthy and both unfit and unsuitable to be a minister or a TD. He said that other people had taken this same meaning from Mr Smyth’s comments. Mr Lowry says the comments were false and as such were deeply offensive and defamatory.

Mr Lowry is seeking that the court make a number of orders including that Mr Smyth apologise, publish a correction and refrain from making such public comments in the future. However, Mr Smyth is arguing that the comments made by him were true and represented his honest opinion. He said that they were fair and reasonable comments on a matter of public interest.

Judgment has been reserved, and is expected early next term.

Update (18 December 2010): From the Irish Times: Journalist says he called TD a tax cheat not a thief

In yesterday’s Sunday Business Post, I argued that the IMF deal can change the Irish legal system for the better, reflecting arguments I have already made here and here.

IMF deal can change the Irish legal system for the better

The IMF deal has provoked a great deal of discussion, from its impact on our political and economic sovereignty, through the details of tax increases, state spending cuts and the implementation timetable, to the question of whether it needs to be ratified by Dáil resolution or even referendum. But there is a lot more to it than that.

IMF packages typically require structural reform to open the labour market and encourage competition in goods and services. The memorandum of understanding between the IMF and our government is no different. It requires the government to introduce legislation to remove restrictions on trade and competition in professions such as law, medicine and pharmacy. …

The IMF memorandum made it clear that all of the necessary legislation must be enacted by the end of the third quarter of 2011. This is probably not an impossible target, as these recommendations were not new in 2005 and 2006: many of them had been made in a report in 1990. Moreover, many other jurisdictions have already been down the same road. .. There are, therefore, many precedents to aid the Department of Justice in drafting the necessary legislation. It is unfortunate that successive governments have not implemented these reports.

Read the full piece here. Picking up on this, Rossa McMahon has rather dryly observed that the Government could help bring down legal costs overnight, but won’t. He concluded that if the IMF reforms “are implemented in the relatively short timeframe of the programme, they would represent something of a Big Bang for the professions”.

Following on from my post on the impact of the IMF bailout on Irish legal education, I see from today’s Irish Times that the Bar Council (logo left) is not happy with some of the proposals, in particular those directed to the establishment of an independent statutory Legal Services Commission:

Parts of legal sector reform ‘not in public interest’

CAROL COULTER, Legal Affairs Editor

THE BAR Council has criticised proposals concerning the legal professions in the Government’s four-year plan and in the EU-International Monetary Fund (IMF) programme of financial support. … Responding to queries from The Irish Times, the Bar Council said it welcomed aspects of the plan and the programme:

However, there are other aspects which have come as some surprise to the Bar Council, and which cause it concern, not because of any sectional or selfish interest but because they do not appear to be in the public interest.

… Bar Council chairman Paul O’Higgins SC said the Council had not been made aware of any detailed proposal to give effect to the establishment of an agency described as an “independent regulator” and it awaited details:

The Bar Council notes that the position of legal services ombudsman has recently been advertised in the national press. It is not clear how that position will interact with what may be a further State agency, namely, the ‘independent regulator’. …

Well, they would say that, wouldn’t they? The article finished with a quote from me:

the single most effective reform of the legal system would be the establishment of an independent regulator and the introduction of genuinely competitive tendering.

I don’t agree with the Bar Council’s point about there being a potential conflict between the Legal Services Commission and the Legal Services Ombudsman. The role of that office (which I welcomed when the current legislation was initially published) is to oversee the handling by the Law Society and Bar Council of complaints by clients of solicitors and barristers. The Ombudsman is independent in the performance of the functions of the office. There is no reason why this function could not simply be folded into the more general Legal Services Commission. For example, the Ombudsman could be a member of the Commission, and the Ombudsman’s office could be a division within the broader functions of the Commission. Moreover, there is no reason why the Ombudsman should not be given greater powers in respect of disciplinary matters relating to both branches of the profession: in particular, that office could be the first port of call for parties seeking to complain about a solicitor or barrister, and not simply be an appeal body from an internal complaints system.

Other divisions within the Legal Services Commission can take up the other functions recommended by the Legal Costs Working Group in 2005 and the Competition Authority in 2006. One of these concerns extending the provision of professional legal education beyond the monopolies currently enjoyed by the Law Society in training solicitors and the King’s Inns in training barristers. Most other common law countries have gone this route. In my view, it is long past time for Ireland to do the same. My only regret is that is has taken the IMF to make us do it!

It’s being reported that Andrew Croskery has failed in his bid to review the 2:2 engineering degree he was awarded by Queen’s University Belfast. According to the BBC:

Judge rules no judicial review over disputed degree

A judge refuses leave for a judicial review of decisions made by Queen’s University over a graduate’s disputed degree classification.

Andrew Croskery, from County Down, was seeking leave for a review of decisions made by the university’s Board of Examiners. But a High Court judge ruled the case should remain exclusively within the jurisdiction of Queen’s appeals body. …

Mr Justice Treacy said that even if this confirmed the existing classification, two further rights of appeal were open to Mr Croskery. He can take his challenge to the University’s Central Students Appeals Committee, and to a Board of Visitors. …

According to the UTV news website, Mr Justice Treacy concluded: “The matter in dispute remains exclusively within the jurisdiction of the Board of Visitors.” And, according to the RTÉ news website, Queen’s has said it will convene a further hearing of the Board of Examiners to study the case. When the judgment is available on the NI Courts & Tribunals website or Bailii, I’ll return to this case. In the meantime, it seems to be a welcome endorsement of the view that the courts should be slow to become embroiled in matters of purely academic judgment.

Updates (9 December 2010): Belfast Telegraph | Irish Times

Updates (10 December 2010): Education Law Blog | iLawBlog

Yesterday, as Scrooge announced a take-away budget, Santa produced give-away bank machines. Bank of Ireland experienced “an unforeseen technical issue” with its computers. This meant that some of its customers were able to make ATM withdrawals of amounts greater than their available funds or credit. However, the bank said that all money withdrawn by customers in excess of their balances yesterday will have to be repaid, and that ATMs are working normally now.

The bank’s first port of call to enforce their repayments will be the terms and conditions of the contracts they have with their customers. For example, clause 3.2 and clause 10 of the Terms & Conditions relating to Personal Current Accounts in the Standard Current Account Terms & Conditions (PDF) allow the bank to recover unauthorised overdrafts incurred “without the bank’s prior written agreement”; and clause 2.9 of the Terms and Conditions of Use relating to ATM Cards and Laser Cards in the same Standard Terms and Conditions permits the bank to restore an account to the state it would have been in had “an incorrectly executed transation not taken place”. However, reliance on these terms and conditions may be displaced if the term is unfair having regard to the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995), or if a strict interpretation of the relevant terms excluded their applicability (for example, the argument might run that the terms and conditions apply to the ordinary running of the account and not to these kinds of extraordinary circumstances where the bank simply allowed the transactions to go ahead with the risk that some customers at least would not have the relevant available funds).

Even if the contract doesn’t apply, there may a non-contractual claim to restitution of the over-payments on the grounds that the customers were unjustly enriched. As I have had occasion to remark on this blog, a bank error in your favour is not a gift from God; neither is it a gift from Santa, despite the time of year. The starting point for a restitution claim in these circumstances is that many such payments are mistaken payments (see Nolan v Enniscorthy UDC (1955) 89 ILTR 12; National Bank v O’Connor & Bowmaker (1969) 103 ILTR 73 (Budd J); Barclays Bank v Simms [1980] QB 677 (Goff J); Australia and New Zealand Banking v Westpac Banking (1987-1988) 164 CLR 662, [1988] HCA 17 (21 April 1988); David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353, [1992] HCA 48 (7 October 1992); Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, [1998] UKHL 38 (29 Oct 1998); Dextra Bank & Trust Company Ltd v Bank of Jamaica (Jamaica) [2001] UKPC 50 (26 November 2001); Fielding v Royal Bank of Scotland [2004] EWCA Civ 64 (11 February 2004); Donal Rigney Ltd v Empresa De Construcoes Amandio Carvalho SA [2009] IEHC 572 (27 November 2009); Deutsche Bank Ag v Vik [2010] EWHC 551 (Comm) (19 March 2010)). So, the question is whether the bank is mistaken in making these payments. On the one hand, they knew that the central computer was down, and decided to allow the ATMs to operate in offline mode without reference to the central computer, so how could they be mistaken generally? On the other hand, since they had no way of checking balances in respect of each individual customer, they could argue that they (or at least their ATMs) made mistakes when making the overpayments.

Update: A similar way of putting the same enquiry is to ask whether the bank made mistakes about a state of present fact, or whether they made mispredictions about future events (seethe cases above, especially Kleinwort Benson and Dextra Bank; see also Royal Bank of Ireland v Pentony [1941] IR 523 (SC) and Deutsche Morgan Grenfell v Inland Revenue [2007] 1 AC 558, [2006] UKHL 49 (25 October 2006)). If they made a mistake about the way the computers were operating, then that is mistake about present facts, and gives rise to a cause of action. On the other hand, if they made a misprediction about the way the computers would operate in the future, then that is a misprediction about future events and does not give rise to a cause of action.

Assuming that the bank has causes of action against overpaid customers, the customers might claim that they have defences. First, they could claim that the bank made the payments at all events, accepting the risk that the payments might be mistaken or invalid (see the cases above, especially O’Connor, Simms, David Securities, Kleinwort Benson, and Deutsche Morgan Grenfell). There are fine questions of degree as to the bank’s knowledge and acceptance of the risk they were taking. In principle, however, if they were negligent in creating the circumstances of the overpayments, this negligence does not preclude their reliance on any mistake (see again the above cases; and see also Kelly v Solari (1841) 9 M&W 54, 152 ER 24, [1841] EngR 1087 (18 November 1841) (PDF), Banque Financière de la Cité v Parc (Battersea) Ltd [1999] AC 221, [1998] UKHL 7 (26 February 1998); Derby v Scottish Equitable [2001] EWCA Civ 369 (16 March 2001)) though of course it might found a counter-claim by the customers in the tort of neglience. But any such negligence might be relevant in that it may provide the factual foundation for the finding that they assumed the risk of overpayment.

Some customers might be able to argue that they received the overpayments in good faith, and in reliance on those receipts, expended the money (as well as the above cases, especially Derby, see also Murphy v AG [1982] IR 241 (SC); National Bank of New Zealand v Waitaki International Processing [1999] 2 NZLR 211 (NZ CA)). This will be difficult to sustain for many of the customers who had knowledge of the bank’s computer problems. However, just as there are degrees of knowledge on the part of the bank as to whether they had assumed risk, there are questions of degrees of knowledge on the part of the customers as to their good faith. And there must be some customers who did not know about these issues, and whose withdrawals were indeed in good faith. They might therefore able to rely on this defence of change of position.

All of this means that the route to reclaiming overpayments from customers is not entirely straightforward. In doing so, the bank, briefly Santa, will no doubt be cast as Scrooge.

Update: that last paragraph was quoted in a piece by Paul Cullen in the Irish Times: Bank of Ireland to waive penalty on customers who overdrew ATM accounts