Paul McMahon on Ex Tempore has an excellent post this morning musing on the use of paragraph numbers in judgments in the Supreme Court. He thinks they’re rather unattractive, but useful. I think his aesthetic objections are misplaced, but I agree with him that they are useful, and I think that the sooner Irish judgments come into line with this best practice elsewhere, the better.

I’m not sure that the absence of paragraph numbers in US judicial opinions is for reasons of sytle. There is much that is ugly about formal US opinion writing, some (much?) of it driven by the Bluebook, some simply a matter of history. The absence of paragraph numbers reflects the assumption that the judgment will be reported very quickly by West in an appropriate volume of their national reporter system, so that the page number will provide the appropriate pin cite.

However, the rise of the paragraph number in judgments outside the US is a function of the rise of medium-neutral reporting and citation. The Austlii/ Bailii/ Canlii (etc) style of citation – [year] court (case no) [para] – makes it easy to pinpoint the relevant citation whatever the medium of publication: html, pdf, or traditional dead-tree law report. In my view, it is elegant both in functional terms and in aesthetic terms. Paragraph numbers allow pinpoint citations (beloved of the Bluebook, but in this case understandably so), which Paul finds useful precisely because they are. Indeed, Canlii have gone further, putting html anchors into the paragraph numbers, to allow html deep linking for pinpoint citation online. However, it is a non-US development of the last 10-15 years, and imperial US practice is not going to retrofit to accommodate it.

Irish practice is inconsistent, and it has long annoyed me that Irish judges have not fully come into line with the rest of the Bailii-etc family. Admittedly, some now use Bailii-style paragraph numbers in their judgments. As Paul points out, Fennelly J’s adoption of a straightforward paragraph numbering style may be as a result of his time at the ECJ – however, two of his Supreme Court colleagues also spent time in Luxembourg but without the same effect. But Fennelly J is very much in the minority in this regard. Many Irish judges continue to use idiosyncratic numbering styles or none at all. Worse, the Irish Reports add paragraph numbers to their official paper reports, and those paragraph numbers are often inconsistent with those provided by the judges in their own judgments. To my mind, this undercuts the entire rationale for paragraph numbering in the first place.

I think it’s time the Chief Justice issued a practice direction requiring all of the judges (including himself) to conform to the paragraph number format for neutral citation. It will make life better for all of us in the long run.

In Watters v Independent Star [2010] IECC 1 (03 November 2010), the first reported judgment on the Defamation Act, 2009 (also here), Matthews J granted the plaintiff a declaratory order pursuant to section 28 of the Act (also here) that an article published by the defendant was defamatory, and he made a further order pursuant to section 33 of the Act (also here) prohibiting the newspaper from re-publishing the defamation.

In an earlier post (also here), I have already looked at some issues arising from this decision. Another critical aspect of Matthew J’s judgment was that, although the plaintiff was a convicted criminal, he nevertheless possessed a residual reputation which was damaged by the newspaper’s allegations. Of course, evidence of a plaintiff’s general bad reputation is admissible in evidence in mitigation of damages (see section 31(4)(g) and section 31(6)(a) of the Act (also here); see also Hill v Cork Examiner Publications [2001] 4 IR 219, [2001] IESC 95 (14 November 2001) and the recent decision of Tugendhat J in Hunt v Evening Standard [2011] EWHC 272 (QB) (18 February 2011)). However, this is a long way from saying that such a general bad reputation renders a plaintiff libel-proof. Moreover, the plaintiff in Watters did not seek damages, but rather sought and obtained a declaratory order and an injunction.

Section 33 of the 2009 Act allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made, and it was on foot of that section that Matthews J granted a permanent injunction restraining re-publication of the defamation. In my earlier post, I considered its applicability in the context of interim and interlocutory applications; and I argued that, in much the same way as the previous common law had been, section 33 had to be interpreted in the light of the protections of freedom of expression by the Constitution and the European Convention on Human Rights. In particular, since such a temporary injunction constitutes a prior restraint upon speech, applications for interim or interlocutory injunctions in defamation cases must be scrutinised with particular care.

In principle, such considerations derived from the Constitution and the Convention should also be in play when – as in Watters – an application is made under section 33 for a permanent injunction as a remedy for defamation. In the US, it has been argued that a permanent injunction imposed after trial nevertheless amounts to a prior restraint upon any subsequent speech. However, the courts have held that injunctions against certain statements based on a finding on the merits that those particular statements are defamatory effectively do not amount to prior restraints and are therefore not presumptively unconstitutional (see Balboa Island Village Inn v Lemen 156 P 3d 339 (Supreme Court of California, 2007); St James Healthcare v Cole 2008 MT 453 (Supreme Court of Montana, 2008); Hill v Petrotech Resources Corp (Supreme Court of Kentucky, 21 October 2010) (blogged here on the Volokh Conspiracy)). These cases demonstrate the confusing doctrinal consequences of the US rule against prior restraints. A final order prohibiting future publication is indeed a prior restraint upon that future speech; it would be better if the US cases accepted that rather than denying it; but they would then have to go on and hold that the full trial establishing the defamatory nature of the publication overcomes the presumption against prior restraint.

By contrast, the approach to prior restraints in Ireland, influenced by the Convention, is much more nuanced, and it does not run into the same doctrinal problems justifying a section 33 permanent injunction as a remedy after trial in defamation cases. Even if a permanent injunction does indeed constitute a prior restraint upon future speech, and thus a restriction upon the right to freedom of expression protected by the Constitution and the Convention, the question would not be whether the constitutional presumption against prior restraint has been overcome, but whether, after a close and penetrating examination of the facts, the permanent injunction is a necessary and proportionate restriction upon that right. In the circumstances of Watters v Independent Star, this test would almost certainly have been satisfied, but it may nevertheless be worth a future defendant’s while taking the point. However, given the recent demise of the Star on Sunday, it won’t be that defendant.

During the property boom, lots of banks made lots of loans to lots of property developers. Then, as the market began to tighten, many of the banks made alternative arrangements with some of their developer clients. Now that the property market has collapsed, banks are seeking to enforce the terms of loans as against developers, and the developers are relying on the alternative arrangements by way of defence. An Cumann Peile Boitheimeach Teorenta v Albion Properties Ltd & Ors [2008] IEHC 447 (07 November 2008) is one such case (see also the legal issues in Helsingor Ltd v Walsh [2010] IEHC 54 (05 March 2010)).

I learn via the very helpful new blog Stare Decisis Hibernia – a blog concerned with recent decisions of the Irish Superior Courts – that another such case has recently been decided by the High Court. ACC Bank plc v Kelly [2011] IEHC 7 (10 January 2011) turned largely on its facts, and Clarke J held that there was no binding agreement in place or clear understanding between the parties that the bank would not call in the loan. The defendants had argued that the alternative arrangement could be relied upon on the basis of an estoppel or enforced as a contract supported by consideration, but, in the course of holding that those claims failed on the facts, Clarke J made some important observations about when forbearance to sue constitutes good consideration (the underlined words are his emphasis):

7.9 So far as the case in promissory estoppel is concerned, I have already indicated that I am not satisfied that any concluded arrangement (even if it be short of a contract) had been come to between the parties such as could have grounded a case in promissory estoppel. The factual basis for promissory estoppel does not, therefore, arise.

7.10 Likewise, as I am satisfied that no agreement was reached, the question as to whether any agreement might not have amounted to a contract by virtue of the absence of consideration does not arise. However, I should note that I agree with the submissions made by counsel for ACC that an agreement, whereby the only thing being agreed to on one side is a forbearance to exercise its legal rights without obtaining anything else in return, cannot amount to a contract, although such an arrangement might give rise to a promissory estoppel if the other factual requirements for a promissory estoppel were found to exist. A number of cases (Cooke v Wright (1861) 1 B&S 559, Re Montgomery, a Bankrupt (1876) IR 10 Eq 479, and Fullerton v Provincial Bank of Ireland [1903] AC 309) were referred to by the Kellys in the course of argument as authority for the proposition that forbearance can amount to consideration. That is, of course, the case. However, forbearance is consideration given by the person forbearing, it is not consideration given to that person. In other words, where someone agrees to forebear in return for getting something else, then a binding contract exists, so that if the person does forebear they can insist on getting their side of the bargain and have whatever was promised (for example, extra security) delivered. However, none of those cases are authority for the proposition that someone who gives nothing can enforce a forbearance agreed by the other side.

7.11 For all of those reasons, I am satisfied at the level of principle that ACC was entitled to call in the full principal sum …

This is a clear and straightforward holding that the essence of the doctrine of consideration is an exchange of something for something. If I give something to you, I have effectively paid for your promise to give something to me and can therefore enforce it. But if I have given nothing to you, I have not given anything in exchange for a promise from you to give something to me; your promise is gratuitous, unsupported by consideration, and thus unenforceable. According to Dire Straits, in rock’n'roll, you might get money for nothing, but not according to the doctrine of consideration. The bank had not forborne anything, but if they had, then they would have given good consideration for any reciprocal promise made by the plaintiff; conversely, on the facts, the plaintiff had not given the bank anything, and thus had given no consideration any promise to forbear made by the bank. The classic treatment of forbearance as consideration is Samuel Stoljar “The Consideration of Forbearance” (1965-1967) 5 Melb U L Rev 3; see also Melvin Aron Eisenberg “The Principles of Consideration” 67 Cornell L Rev 640 (1981-82); and it continues to appear with regularity in the case-law (see, eg, Haines v Hill [2008] 2 All ER 901, [2007] EWCA Civ 1284 (05 December 2007), Robinson v Lane [2010] EWCA Civ 384 (03 March 2010); update: see also Mackin v Mc Cann [2011] IEHC 30 (21 January 2011)); but, in the end, it is not a difficult legal issue, even if cases like ACC v Kelly demonstrate that establishing it on the facts can be quite a complicated matter. I expect to see many more of these cases as disputes between banks and developers reach the courts.

Thanks, Stare Decisis Hibernia for bringing this interesting case to my attention. But one minor grumble: could you please put a deep link to the case itself into your note on it? It was a tiny bit annoying having to check BAILII and Courts.ie for it.

After Andrew Croskery comes Tony Chinedu Wogu. According to the Daily Telegraph and The Register, Tony Chinedu Wogu has failed in his bid to sue the University of Bradford for £5m compensation, alleging that a 2:2 and not a First in Computing Science was the result of discrimination and breach of contract. Judge Andrew Collender QC struck out his case, saying academics had a much better understanding of the quality of a student’s work than lawyers did. As Treacy J had done in Croskery, Collender QC pointed out that Mr Wogu he could seek judicial review of the university’s decision to award him a 2:2, but only after he had exhausted his internal appeals. Moreover, he reasserted the principle of judicial deference to matters of purely academic judgment (as opposed to breaches of procedure):

This court has the most limited of powers to interfere in such a decision. This court has not the power or expertise to simply examine or to determine the proper degree grade to which the claimant would have been entitled from the University of Bradford. That is a decision particularly within the scope of an academic institution. It would not be for this court to apply its judgment as to the degree level reached and substitute that for the university’s … and the defendants’ application to strike out is successful.

Some orders have been made on foot of the Defamation Act, 2009 (also here) – see, for example, Lowry v Smyth (background here and here; coverage of the order here), Mellon v Associated Newspapers (coverage here), and Meegan v Associated Newspapers (coverage here) – but Watters v Independent Star [2010] IECC 1 (03 November 2010) remains the only reported judgment on provisions of the Act. In that case, the newspaper had published an article headlined Larry’s Secret Shower Buddy, purporting to expose a a “seedy”, “weird”, “bizarre” and “secretive” homosexual relationship in prison between the plaintiff Barry Watters and Larry Murphy, a notorious criminal who had been convicted of rape and attempted murder. Matthews J held that the plaintiff had a residual reputation which was damaged by the newspaper’s allegations. He therefore granted the plaintiff a declaratory order pursuant to section 28 of the 2009 Act (also here) that the article was defamatory, and he made a further order pursuant to section 33 of the 2009 Act (also here) prohibiting the newspaper from re-publishing the defamation. Nevertheless, the newspaper repeated the defamation: in an article alongside a photograph of Watters the newspaper had stated:

We may have to apologise to this revolting pervert but will we mean it? Hell no.

As a consquence, the newspaper was fined 40,000 euros for contempt of court (can anyone tell me whether this fine was paid before the Irish Daily Star on Sunday is to ceased publication?). Moreover, the judge ordered that a fair summary of the earlier judgment in which he found that the applicant had been defamed be published by the newspaper with equal prominence to the layout of the original defamatory article. The facts are sensationalist, but they raise an important issue of legal principle relating to section 33 of the 2009 Act, which allows the court to make interim, interlocutory or permanent orders prohibiting the publication or further publication of the defamatory statement in respect of which the application was made.

The issue of injunctions in defamation cases is a fraught and controversial one. This is particularly so in the context of interim and interlocutory injunctions. However, as recent US cases have demonstrated, difficult issues can also arise in the context of permanent injunctions to restrain the republication of defamatory comments of the kind sought, awarded and breached in Watters. In this post, I want to look at interim and interlocutory injunctions; and I will return to the question of permanent injunctions in a future post. Read the rest of this entry »

If you trespass on my land, and make a profit from that trespass, what should the measure of damages be? It is a very important question, but the answer is disputed, and it had not been directly discussed at Irish law, so far as I know, until it was recently addressed by McMahon J in Victory v Galhoy Inns [2010] IEHC 459 (16 December 2010).

Trespass is a civil wrong (a tort), and the aim of damages for such wrongs is to compensate the plaintiff for the loss caused by the wrong: to put the plaintiff “in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation” (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn); Smith New Court Securities v Scrimgeour Vickers [1997] AC 254, [1996] UKHL 3 (21 November 1996); Carey v Independent Newspapers [2003] IEHC 67 (7 August 2003)). However, the law has recognised that where a defendant has made a profit from a civil wrong, the damages can be directed instead to stripping the damages from the defendant. For example, in Hickey v Roches Stores (High Court, unreported, 14 July 1976) Finlay P held

Where a wrongdoer has calculated and intended by his wrongdoing to achieve a gain or profit which he could not otherwise achieve and has in that way acted mala fide then irrespective of whether the form of his wrongdoing constitutes a tort or a breach of contract the Court should in assessing damages look not only to the loss suffered by the injured party but also to the profit or gain unjustly or wrongly obtained by the wrongdoer.

Read the rest of this entry »

I enjoy political debate; and I particularly enjoy political debates on television between political party leaders. I will therefore be a happy spectator tomorrow night when TV3 host the first such leaders’ debate of the current election campaign. But, as things now stand, Enda Kenny, the leader of Fine Gael, the party which is leading in all of the polls, will not participate. One of the consequences of his refusal to do is that he has made the broadcaster part of the story, and not simply the means by which the political story reaches us, the viewing public. (It’s not the only example of the broadcaster being the story this week: there was a spat between Newstalk and RTÉ; and there were calls for a deputy leaders’ debate and a women’s debate). As a general rule, it’s not a good thing when the broadcaster becomes part of the story; it means something has gone awry with the normal functioning of the political process. When that happens, people often reach for their lawyers. Last week, a leading member of Kenny’s party suggested that having the debate without Kenny (perhaps with an empty chair to symbolize his absence) would breach TV3’s statutory duty of impartiality. I’m surprised I haven’t heard more of this since, but it would not amaze me at all if someone attempts to make this canard fly again over the next few days.

Section 39(1)(b) of the Broadcasting Act, 2009 (also here), requires that broadcasters ensure that their treatment of current affairs “is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of … [their] own views”. Clearly, if TV3 had excluded Kenny from a debate featuring other leaders, they would be in breach of this duty (Wilson v IBA 1979 SLT 279; R v BCC, ex parte Owen [1985] QB 1153; Lynch v BBC [1983] 6 NILB 1; Wilson v IBA (No 2) 1988 SLT 276; R v BBC, ex parte Referendum Party [1997] EMLR 605; SNP v Scottish TV (Court of Session, Outer House; 15 April 1997); Boyle [1986] Public Law 562; Munro (1995) 145 NLJ 518). Indeed, in such hypothetical circumstances, they may well be in breach of constitution (Coughlan v Broadcasting Complaints Commission [1998] IEHC 62 (24 April 1998); aff’d [2000] IESC 44 (26 January 2000); [2000] 3 IR 1 (HC, Carney J; SC); Kelly v Minister for the Environment [2002] IEHC 38 (16 May 2002)). But TV3 have not excluded Kenny; instead, they have invited him to participate, and he has chosen not to. This is simply the latest in a long and ignominious tradition of politicians declining to face (running away from?) uncomfortable questions on inhospitable programmes from disagreeable interrogators. It is plain common sense that a decision of a broadcaster to go ahead with a programme after a politican or representative of a political viewpoint has declined the opportunity to participate should not, for that reason, infringe the duty of fairness and impartiality. Otherwise, that refusal would give the refusenik a veto to stymie the broadcast.

Moreover, those cases demonstrate that compliance with s39 is not a formal or mechanical matter; instead, the broadcaster must take a realistic approach to their attempts to achieve balance. Indeed, even section 39 recognises that formal or mechanical compliance with its terms is often difficult, since it goes on to stipulate that if it is impracticable to comply with the duty of fairness and impartiality in relation to a single broadcast, then “two or more related broadcasts may be considered as a whole”, provided that the broadcasts “are transmitted within a reasonable period of each other”. For example, a series of one-on-one interviews with leading politicians would plainly satisfy these conditions. So, even if there are concerns about Kenny’s absence from the debate on Tuesday night, TV3 could counter that their overall election coverage more than makes up for them.

In short, even if Enda Kenny declines an invitation to participate in a leaders’ debate on TV3, and TV3 nevertheless go ahead with the debate without him (perhaps with an empty chair, or worse), there would be no substance to any objection from Fine Gael that this is in breach of their statutory duties of fairness and impartiality.

In the internet era, most Supreme Courts worth their salt have attracted high quality dedicated and independent commentary from the blawgosphere. The market leader is probably SCOTUSblog – which, as its name suggests, is a blog about the Supreme Court of the United States – but I also like the charm of Court Artist as well. The Supreme Court of Canada has The Court; the Court of Justice of the European Union has ECJblog; the European Court of Human Rights has Strasbourg Observers; and, right from the off, the UK’s new(ish) Supreme Court has had UKSC blog. Now, the Irish Supreme Court has taken its place amongst this premier league of courts of final appeal.

Paul MacMahon has just started Ex Tempore. He hopes that Ex Tempore will provide a resource for lawyers, academics, law students, and anyone seeking to understand what the Irish Supreme Court does and how it does it. The site provides weekly previews of upcoming cases, keeps watch on relevant High Court developments, and offers commentary on the Court’s decisions. More broadly, Ex Tempore explores the Court’s history, its place in the Irish system of government, and its relationships with other courts. I’m really excited about this development. It’s been a long time coming, and it joins the growing list of ardent and high-quality Irish law blawgs.

At this early stage, three things occur to me. Read the rest of this entry »