In my last post, I mentioned that the question of the compatibility of mandatory retirement ages with EU law was pending before the European Court of Justice (ECJ). The Court has now handed down its decision, upholding the principle of mandatory retirement ages, but requiring them to be justified on a high standard of proof.

The case, C-388/07 R (on the application of The Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform, was a reference from the High Court (Queen’s Bench Division, Administrative Court), for a preliminary ruling concerning the interpretation of Council Directive 2000/78/EC (pdf) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p16), which had been transposed in the UK by the Employment Equality (Age) Regulations 2006 (SI No 1031 of 2006). The Directive and the Regulations provided for a general principle of non-discrimination on the grounds of age. However, they allowed for exceptions that are objectively and reasonably justified by a legitimate aim, provided that the means of achieving that aim are appropriate and necessary (see, eg, Article 6(1) of the Directive). On this basis, Regulation 30(2) allowed for a derogation from that general principle in the context of compulsory retirement at 65. Age Concern (the UK’s equivalent of Age Action) challenged that derogation on the grounds that the derogation did not meet the requirements of Article 6(1), but the ECJ rejected that challenge: Read the rest of this entry »

The issue of compulsory retirement is not an uncommon one, but it arises today in an uncommon context. From today’s Times Online,

Judges take on Ministry of Justice over age discrimination

Two judges this week have launched a discrimination claim against the Ministry of Justice over being forced to retire at 70. … The claim is only the latest of several challenges by judges or lawyers over compulsory retirement. …

An earlier Times Online article reported that senior UK judges are pressing for a change in the law to allow the most senior members of their profession to remain in their posts beyond the age of 70.

This all recalls for me the words of Lord Bridge of Harwich in Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344, [1995] UKHL 8 (29 June 1995):

My Lords, since the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75, this is the last time I shall speak judicially in your Lordships’ House. I am happy that the occasion is one when I can agree with your Lordships still in the prime of judicial life who demonstrate so convincingly that common sense and the common law here go hand in hand.

Read the rest of this entry »

Louis D Brandeis (left), as lawyer, and as judge of the US Supreme Court, championed such unpopular causes as freedom of speech, privacy and worker protection. Arising from his belief that law is a device to shape social, economic, and political affairs, one of his enduring legacies is what has become known as the Brandeis Brief: a legal argument which relies not only on legal argument but also on analysis of empirical data. It was first deployed by Brandeis in Muller v Oregon 208 US 412 (1908), where he marshalled statistics from medical and sociological journals which demonstrated overwork was inimical to the workers’ health to support his argument that legislation limiting hours for female laundry workers was constitutional. The Law School of the University of Louisville is named for Brandeis, and I learn from Dan Ernst on Legal History Blog that Louisville have now made the original Brandeis Brief available online.

Law reports from today’s Irish Times:

Data Commissioner’s prosecution can go ahead
Realm Communications Ltd v Data Protection Commissioner: High Court, Judgment was given by Mr Justice McCarthy on 9 January 2009 [2009] IEHC 1

The Data Protection Commissioner did not act unlawfully in issuing summonses against a company using text messages for marketing purposes (Realm) without the consent of the recipients, without having first sought to arrange an amicable resolution between the company and the complainants.


Suspended sentence for burglary not wrong in principle
DPP v de Paor and Zdanowski: Court of Criminal Appeal. Judgment was delivered by Mr Justice Hardiman on 19 December 2008 [2008] IECCA 137

An application by the Director of Public Prosecutions to review the suspended sentence of five years for robbery and false imprisonment imposed on Cuan de Paor – on the grounds that it was unduly lenient – was refused.


Coming to terms with greater role of expert is an edited version of Mrs Justice Fidelma Macken’s remarks at the recent launch of the Law Reform Commission’s Consultation Paper on expert evidence (pdf).


In short: US Supreme Court upholds immunity of prosecutors [the case is here]; EU Commission criticised; Seminar on construction law; Criminal law conference; Law Society complaints committee; New managing partner at Eversheds


Bonus links from today’s Times Online: Forcing out judges at 70 ‘threatens supreme court’ (the Irish judicial retirement age is also 70); The law lords who served their time (the longest-serving Irish judge was Christopher Palles, Chief Baron of the Exchequer for 42 years between 1874 and 1916).

Further to my recent post on Restitution in the news!, two pieces in today’s Irish Times caught my eye:

Breifne O’Brien faces new claims for €997,000

TWO MORE claims have been brought to court against Breifne O’Brien, operator of an investment scheme, for the repayment of money given to him. The latest claims, totalling almost €1 million, will increase to more than €14 million the sums sought from the businessman. Mr Justice Peter Kelly was told yesterday by Alan Doherty, for several claimants, that two other creditors of Mr O’Brien have issued proceedings. This followed the judge’s indication last week that anyone else with claims should move speedily.

Kelly J was busy yesterday, as the other story demonstrates:

Two Irish-listed firms in court bid to recover €1bn

WO IRISH-LISTED investment companies, which gave sums of more than $1.1 billion (€847 million) and €170 million destined for alleged $50 billion fraudster Bernard Madoff and his company to invest in the Irish arm of banking giant HSBC to administer, have initiated Commercial Court proceedings in a bid to get the money back. The holding funds in which the money is held have been frozen. … Mr Justice Peter Kelly … said he believed this was the first litigation here deriving from the “infamous” Madoff bankruptcy and he listed for hearing on Tuesday next applications by the companies to prevent their money being dissipated or removed outside the Irish jurisdiction without leave of the court.

Although there is quite a bit of Irish law on this issue, it could do with clarification. And if either or both of these claims proceeds to full trial, that clarification would be welcome not only by the students in my Restitution course, but also by those practitioners who will have to advise clients as the current economic slowdown (are we allowed to call it a recession, or even a depression, yet?) deepens and there are more claims for the restitution of money transferred to collapsed financial institutions.

Update (25 January 2009): Legal Eagle has an excellent post on the legal issues raised by the Madoff affair: Investment scheme collapses give rise to equitable and restitutionary claims. She concludes:

Well, we’ll just have to watch this space and see what happens with the various legal claims. Yet again, I suspect the only people who will emerge happily from this will be the lawyers (no wonder nobody loves us).

I couldn’t agree more!

Update (26 January 2009): various Madoff pieces in Times Online here, here, and here; and, as a bonus, from the same source, news of a UK ponzi scheme.

Update (28 January 2009): From today’s Irish Times: Assets-freezing order on alleged fraudster increased; HSBC tells of Madoff link to disputed €1.2bn; from today’s Times Online: Santander offers €1.38 bn to compensate clients hit by Madoff.

Update (29 January 2009): A fascinating and comprehensive piece from The Independent: The Madoff files: Bernie’s billions. It begins:

How did Bernhard Madoff set about building the most audacious fraud in history? Did no one suspect that his investments were too good to be true? And how could his sons and brother, who helped run the family business, know nothing of the deception? As the full story emerges, Stephen Foley pieces together the $50bn puzzle

This is the last of the updates to this post. It was too good to omit. However, in the future (for the sake of my sanity) I’ll be referring only to developments sufficiently major to get their own posts; and, of course, any full judgments will be analysed on this blog as they arise.

It’s an old story by now, but I missed it at the time, and I stumbled upon it today. It begins with a worthy event, the Law Society of Ireland’s Justice Media Awards, established to give national recognition to legal journalism in various categories. To my mind, the categories are rather narrow, confined as they are in effect to full-time journalists in the traditional media, but that’s a minor quibble which I am sure will be addressed in the future by the addition of a new, more general, category (perhaps named for a significant figure associated with the Society). In any event, the 2008 awards were presented late last year, and at the event Mr Justice Adrian Hardiman of the Supreme Court made a speech which caused some controversy. For example, writing the Irish Times the following day, Carl O’Brien (one of the winners on the night) reported that Hardiman

… has sharply criticised the media for its “inadequate and uninformative” coverage of the courts. Speaking at the Law Society annual Justice Media Awards, he accused the media of rushing to comment on judges’ rulings without properly examining or understanding them.

The Irish Times later published the full text of the speech here. And I have to say that in this, Hardiman is absolutely right. His solution was to ask for more rigour in court reporting, and more co-operation between the courts and the media. This is all to the good, but I think his analysis is lacking, in that the problem – if such it be – is not confined to reporting of the courts: it is endemic in how everything is reported, from the most serious political developments to sports to entertainment – everything suffers from the rush to comment, from the focus on the human interest to the detriment of the detail. Indeed, Hardiman’s grumble that

… even the result [in a given case] and its significance is often distorted as the reporter or some editor focuses on some incidental but picturesque detail, or on the need for a headline

could just as easily apply to the reporting of any other event as it does to the reporting of the courts. This is not to say that it is a good thing; merely to say that it is not confined to Hardiman’s context – it is a function of reporting in general. And the problem may really be not with the reporters and editors who give the public what they want, but with us, the public, in wanting it in the first place. And if that is the real problem, the solutions will have to be much broader than those proposed by Hardiman.

This has not prevented Hardiman from attracting criticism for his comments. For example, in another Irish Times report, Prof Finbarr McAuley, Jean Monnet Professor of European Criminal Justice in UCD and a member of the Law Reform Commission, objected that

… it is not sensible for judges to get into controversy with parts of civil society that might appear as litigants in the courts. It’s fine for judges to make statements about technical aspects of the law. But making controversial statements is unwise.

This is a counsel of prudence, rather than of principle; and in principle I don’t see why judges shouldn’t make such comments. Indeed, it might be better that they should, to avoid subsequent problems with conflicts of interest.

However, the controversy was stoked to artificial heights by what seems to me to be an uncalled for mischaracterisation of some of Hardiman’s remarks. In the published version of his speech, in urging amity between the bench and the media, he said

in the words of Rogers and Hammerstein, in Oklahoma!, that:

“The farmer and the cowman should be friends”.

Expanding on this in later discussion, he is reported to have referred to women court correspondents as “cowgirls”, a phrase which was said to have surprised the media and to show his lack of judgment.

I wasn’t at the event, unfortunately. But, to my mind, this aspect of the controversy is a storm in a tea-cup, unnecessarily distracting from the real issue. Hardiman was making an important point, and rather than engaging with the specific problem he was identifying, or with the more general social malaise of which it is simply an exemplar, the media chose instead to focus on a throwaway wisecrack (which, uncharacteristically, seems to have been ill-judged). It seems to me that the media were quick to perceive a mote in Hardiman’s eye, whilst failing entirely to consider the beam in their own.

In the end, because there is no such thing as bad publicity, it was all good publicity for the Justice Media Awards. I wonder whether Mr Justice Hardiman might be the first recipient of the new, more general, category award I posited at the outset? If not, perhaps it might be named for him?

I wrote a little while ago about plans for most civil judges in England and Wales to cease wearing wigs, wing collars and bands, and to wear radically simplifed judicial gowns. The change was to come into effect from 1 January 2008, but it was postponed until 1 October because because an insufficient number of gowns had been made in time. The revised deadline was met, and from this month, judges in civil and family courts will wear the new dark blue gaberdine robe with velvet facings (right). The colour – gold, red or lilac – of the strips of cloth under the chin (which to my eye recall the eliminated tapes) indicate the level of judge. The designs, by Betty Jackson, raised some controversy when they were first announced, but they seem fine (if unexciting, and distinctly civilian rather than alien) to me. Read the rest of this entry »

NPR

CNN

New York Times here and here

Washington Post here and here.

Full size image here.



Back row (l to r): Stephen Breyer, Clarence Thomas (is it significant that he’s looking to his right?), Ruth Bader Ginsburg, Samuel Alito.

Front Row (l to r): Anthony Kennedy, John Paul Stevens (is it significant that he’s looking a little uneasy?), Chief Justice John Roberts, Antonin Scalia, David Souter.

Let the games begin.