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The HMV vouchers saga just makes me wanna shout, and throw my hands up, in frustration

There have been many developments today in the HMV vouchers saga about which I blogged yesterday. I argued that HMV’s vouchers, tokens, gift cards, and the like, were valid, and that National Consumer Agency (the NCA) should have been vocal and active in support of consumers in possession of vouchers which HMV had been refusing to honour. Having monitored the situation yesterday, the NCA sprang into action this morning. They questioned the basis upon which gift vouchers, tokens, gift cards, and the like, were not honoured in HMV’s Irish shops yesterday; and they met with representatives of HMV. However, it was too late, and it was all for naught. HMV’s Irish shops did not open their doors this morning (the notice, right, was on the front door of HMV’s Grafton Street shop this morning). This meant – among other things – that it was not practically possible to redeem vouchers, whatever the legal position as to their validity. Then, it emerged during the day that the Irish operation was going into receivership (and not Examinership, the Irish equivalent of the Administration regime to which the UK operation is subject). This definitively means that vouchers are now effectively worthless, just like the claims of other contractual creditors (including the claim to the proceeds of a charity single). Worse, the Consumers’ Association of Ireland called yesterday for legislation to protect consumers with gift vouchers which had been issued by now-insolvent retailers, but the Government has today ruled that out.

Many of HMV’s UK shops have been displaying notices saying that they were unable to issue refunds or exhanges, or sell or redeem gift cards, or take trade-ins of dvds, games, etc (though in practice, they seem to be honouring their statutory obligations to refund or replace in the case of faulty goods). Passions have been running understandably high over the decision taken on Tuesday by the Administrators of the UK operation not to honour vouchers (which had been for sale up until the previous day). A UK politician and consumer advocate have likened the refusal to honour vouchers to theft. Police were called to a HMV store in Oxford after a “minor dispute” broke out when two customers were told they could not use their gift cards. A grandfather walked out of the HMV shop in Henry Street in Dublin with three computer games after staff refuse to accept a gift voucher presented by his grandson to purchase the games. Good for him, but I wouldn’t recommend this. I can understand that irate customers wanna scream and shout and let it all out, but I think it unfair to make the staff on the ground (whose jobs are in jeopardy) to bear the brunt of consumers’ ire over decisions taken by Administrators. You shouldn’t have to shout, shout, let it all out – which is why prompt action by the NCA (and the OFT in the UK) is much the preferable route to resolve such issues.

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I can’t believe the news today: if Administration fails, then HMV might go away

The photo on the left, by Cian Ginty on Flickr, shows the HMV store on Grafton Street, Dublin, closed up on a Saturday night. I read the news today, oh boy, about how 300 Irish jobs are at risk as HMV enters Administration in the UK. None of the Irish media coverage that I have seen or heard contains anything on the formal fate of the Irish operation. It could be put into Examinership (which is the equivalent of the UK’s Administration regime); or, since it is a relatively small part of the total operation, and it is tightly bound to the UK business, the Irish operation might be left to trade normally while the UK administrators get on with things. In both the UK Administration regime and the Irish Examinership regime, the business seeks the protection of the court in a bid to put in place a scheme to allow the business to continue trading. If the bid is not successful, then HMV will cease trading, and the shutters will come down more permanently not only on the Grafton Street store but on all 236 of its stores after 92 years of trading.

It is being reported that

HMV’s administration means it can legally declare gift vouchers worthless, a blow for those who received one as a Christmas gift.

At least as a matter of Irish law, I don’t think that the matter is quite so clear cut. The National Consumer Agency has a very useful page on the general consumer law issues surrounding vouchers, tokens, and gift cards, and provides good advice to consumers thinking of purchasing them, as does Tina Leonard on her site (for the UK, have a look at this BBC article). But the uncertainty now is not so much about the validity of vouchers, tokens, and gift cards in general, but rather as to whether, if they are valid, HMV can nevertheless repudiate them because it is in Administration in the UK or in Examinership in Ireland.
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The spirit of Madison, and not his ghost

Rights matter when their exercise is unpopular. It is easy to exercise a right when no-one else objects. It is when some-one else objects, and seeks to prevent its exercise, that the right to do so becomes crucial. This is particular so when the majority object, and seek to rely on the force of numbers to prevent its exercise. That is precisely when the right is at its most important, and most necessary. As Kearns P (Carney and Hogan JJ concurring) put it in Fleming v Ireland [2013] IEHC 2 (10 January 2013),

51. … If, accordingly, the plaintiff’s constitutional rights extend as far as the manner claimed, then the fact that she is exercising those rights in a manner and for a purpose which some might consider contrary to their own ethical, moral or religious beliefs – or even the prevailing mores of the majority – is irrelevant.

This is an extremely important holding as to the nature of constitutional rights. Fleming itself is a very sad and difficult case in which a Divisional Court of the High Court unanimously upheld the the ban on assisted suicide in section 2(2) of the Criminal Law (Suicide) Act, 1993 (also here) (see Paul McMahon on Ex Tempore | Conor O’Mahony on Constitution Project @ UCC).

Assume for a moment that the legislative ban on assisted suicide does indeed represent the prevailing mores of the majority; assume further that the court had gone the other way and struck it down. Questions of legitimacy can be raised against this kind of judicial action, insofar as it runs counter to the majority view. For example, the Daily Mail often criticises unelected judges for making such decisions, to such an extent that the UK Prime Minister recently announced plans to curb the “massive growth industry” of Judicial Review, at least in planning cases. Here, that word “unelected” carries a great deal of judgmental freight, seemingly demanding judicial passivity in the face of majority decisions expressed by elected legislatures. But this kind of criticism carries weight only if the views of the majority are the exclusive source of legitimacy; and, in a constitutional democracy, this is simply not the case. Constitutional structure provides necessary checks against the tyranny of the majority, and prime among them are the rights of the individual. When the courts hold that a statute is unconstitutional, there is no dilemma or crisis of legitimacy – there is, rather, a reaffirmation of the constitutional aspects of constitutional democracy.

In this respect, therefore, the quote above from Kearns P’s judgment for the Divisional Court in Fleming shows that the courts are not so much haunted by the ghost of James Madison (pictured) as channelling the spirit of his views – and it’s a good thing too!

Public domain and copyright terms

A little late for Public Domain Day (blogged here last year – and the issues there are updated here), here’s a list of written, artistic, and musical works which have now entered the public domain; and here’s a map of countries’ standard copyright terms, (created by Balfour Smith, Program Coordinator of the Center for the Study of the Public Domain, Duke University School of Law):

Santa’s Privacy Policy (via McSweeney’s)

On McSweeney’s:

Santa’s Privacy Policy

By Laurence Hughes [Originally published December 23, 2010.]

At Santa’s Workshop, your privacy is important to us. What follows is an explanation of how we collect and safeguard your personal information; the kind of information we collect; and your choices regarding our use and disclosure of this information.

Why Do We Need This Information?
Santa Claus requires your information in order to compile his annual list of Who is Naughty and Who is Nice, and to ensure accuracy when he checks it twice. …

What Information Do We Collect?
We obtain information from a variety of sources. Much of it comes from unsolicited letters sent to Santa by children all over the world listing specific items they would like to receive for Christmas. Often these letters convey additional information as well, such as the child’s hopes and dreams, how much they love Santa, and which of their siblings are doodyheads.

The letters also provide another important piece of information—fingerprints. We run these through databases maintained by the FBI, CIA, NSA, Interpol, MI6, and the Mossad. If we find a match, it goes straight on the Naughty List. …

There’s lots more detail where that came from; I suppose Santa had to introduce his privacy policy after the Federal Trade Commission imposed a record fine against him for violations of the Children’s Online Privacy Protection Act. Nor, as the Law and the Multiverse blog points out, are these not the only legal issues with which Santa has to contend, including whether someone can get a restraining order against Santa for stalking.

Anyway, here’s another McSweeney’s article of Letters to Santa Written by Shakespeare Characters; and here’s Foreign Policy magazine’s Daniel Drezner on pundits encountering Santa.

Finally, next year, don’t forget the NORAD Santa tracker.

The Contract in The Hobbit

Following on from my posts about the contract law issues in Shrek Forever After and The Muppets, another major movie brings us interesting contract law issues: The Hobbit – An Unexpected Journey (blog | facebook | imdb | official site | twitter | wikipedia).

Warning: plot spoilers Bilbo Baggins is a typical hobbit, enjoying his quiet life in the Shire, when he is manoeuvred by the wizard Gandalf the Grey into hosting dinner for a company of dwarves. They tell him the story of how they lost their kingdom of Erebor and its great treasure to the terrifying dragon Smaug, and how they are now on a quest to reclaim their kingdom and treasure under the leadership of the legendary warrior, Thorin Oakenshield. Moreover, since a company of thirteen (twelve dwarves, and Gandalf) invites bad luck, they tell him that Gandalf had proposed him as a fourteenth member, as a burglar. Bilbo and the dwarves are unconvinced, but Gandalf re-assures them that Bilbo will prove more than up to the task when the time comes (“Hobbits can pass unseen by most if they chose which gives us a distinct advantage” in sneaking past Smaug), so the dwarves present Bilbo with a contract to join the company (script | video clip, via blog and YouTube):

Thorin: Give him the contract.
Bofur: Alright.
[Background commotion]
Bilbo: [pleading for order] Please.
Bofur: We’re off.
Balin: It’s just the usual; summary of out of pocket expenses … time required … remuneration … funeral arrangements … so forth.
Bilbo: Funeral arrangements?
[Bilbo reads the contract, muttering to himself as he goes]
Bilbo: Oh … “up to but not exceeding one fourteenth of total profit if any”. Seems fair. … Ah … “Present company shall not be liable for injuries inflicted by or sustained as a consequence thereof, including but not limited to lacerations, evisceration … incineration”?
Bofur: Oh, aye. He’ll melt the flesh off your bones in the blink of an eye.
[Bilbo groans gently]
Balin: You alright, laddie?
Bilbo: Yeah, I’ll be. … Feel a bit faint.
Bofur: Think furnace, with wings.
Bilbo: Yeah, I-I-I need air.
Bofur: Flash of light, searing pain, then poof, you’re nothing more than a pile of ash.
Bilbo: Hmm … [long pause] … No.
[Bilbo faints]

The montage image above shows Bilbo reading the contract (replicas are available via weta, noble, and Amazon (here (US) and here (UK))). Bilbo eventually signs the contract, and goes on the unexpected journey (and adventure!) of the sub-title. There are many suggestions as to what the contract actually says, from the short version in the book (eg here, here and here) through attempting the decipher the considerably longer text in the movie (eg here, here, here and here) to working with the text in the replicas (eg here; pdf; updates here and here).

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Unconstitutional expenditures – VII – The judgments in McCrystal, Part 2

In McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012), the Supreme Court’s per curiam established that the respondents had expended public moneys on a booklet, website, and advertising campaign in relation to a referendum in a manner which was not fair, equal, impartial or neutral. In judgments handed down on 11 December 2012 by Denham CJ, Murray J, Fennelly J, and O’Donnell J (Hardiman J concurring with all four) the Court gave reasons for the conclusions which had been expressed in the per curiam. My analysis of these judgments is in two parts. The first part, in my previous post, considered some of the issues raised in the judgments. The second part, in this post, considers the impact which those judgments have on the issues raised in my earlier posts (I, II, III, IV, V, VI).

From my previous post, it is clear that, in McCrystal, the Supreme Court made two main findings. First, where the Government acts in clear disregard of the Constitution, then the Courts can intervene. Second, arising from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), there is an obligation upon the Government, if it wishes to expend money providing information in relation to a referendum, to do so in a manner that is fair, equal, impartial and neutral. On the facts, the appellant established, on the balance of probabilities, that the Government had acted in clear disregard of its McKenna obligations in undertaking expenditure on a partisan booklet, website and advertising campaign.

In my earlier posts on the McCrystal per curiam, I parsed not only the judgments of the Supreme Court in McKenna, but also the discussion of McKenna in subsequent cases like Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61, [1996] IESC 6 (12 June 1996) and Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1, [2000] IESC 44 (26 January 2000). In McCrystal, however, the members of the Supreme Court contended themselves with analysis simply of McKenna, without reference to its treatment in subsequent cases. Hence, neither Hanafin ror Coughlan is referred to in any judgment except O’Donnell J’s, whose reference to Coughlan is fleeting ([1]) and to Hanafin is for a very specific purpose and not for what it says about McKenna ([1], [40]).

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Unconstitutional expenditures – VI – The judgments in McCrystal, Part 1

Regular readers of this blog will be familiar with my series of five posts so far (I, II, III, IV, V) on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants’ expenditure of public moneys on a website, booklet and advertisements in relation to the children’s referendum was in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In the per curiam on 8 November last, the Court announced its decision, and said that judgments would be delivered on 11 December 2012. And, indeed, they duly were – judgments were delivered by Denham CJ, Murray J, Fennelly J, and O’Donnell J; Hardiman J concurred with all four. These judgments have already been the subject of a post by Paul McMahon on Ex Tempore blog, as well as a great deal of media comment (98fm | Belfast Telegraph | Irish Examiner | Irish Independent here, here, here and here | Irish Times here, here, here, here and here | RTÉ | TV3). My analysis will be in two parts. The first part, in this post, considers some of the issues which arose in the Court’s judgments. The second part, in the next post, considers the impact which those judgments have on issues raised in my previous posts.

In my first post on the per curiam, I suggested that the Supreme Court had given themselves five weeks to prepare their judgments because some rather knotty issues needed to be teased out, and I therefore anticipated that there would be substantial judgments. And so there are, four of them, rich, complex, and deserving of careful study. I also suggested that we could not exclude the possibility of a dissenting judgment; but, in the event, the judgments are unanimous. However, the fact that the decision is unanimous doesn’t mean that it was easy; for example, Fennelly J reached his conclusions “with reluctance” ([71], misnumbered [28]).

There are repeated references in the judgments in McCrystal, and in public commentary, to the “the McKenna principles”, deriving from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), as though it were certain what those principles are. As O’Donnell J put it, “the decision of the Supreme Court in the McKenna case is well known” ([3]); but, in my view, it is not so well understood. In my previous posts, especially the second and third, I considered that the so-called McKenna principles are far from clear, and I therefore hoped that the judgments in McCrystal would provide some greater clarity. To the extent that there are four judgments, with differing emphases, there are limits to what clarity may be provided, but some aspects of McKenna have indeed been cleared up by McCrystal.

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