The record holds

Another victory for Kerry yesterday. A few were in touch to say that Dad’s record was nearly broken. Paul Geaney came close, but not close enough. Ciarraí abú.

 2014: Paul Geaney scores 50 seconds after throw in

 

1962: Garry McMahon scores 34 seconds after throw in

 

Penalties for text driving

The new law on “text driving” that came into effect in May is unfortunately confusing. It’s a law that is probably intended to set a tone rather than result in significant prosecutions, but road traffic offences do tend to generate a lot of challenges.

I wrote to the Minister for Transport about the regulations and the new one (Paschal Donohue TD) wrote back.

You are quite right about penalties under the regulations. The Road Traffic Acts 1961-2014 contains in section 102 of the 1961 Act, as amended, a ‘general penalty’, which applies to all road traffic offences for which a specific penalty is not set out in the legislation. We had erroneously referred to the general penalty initially, in reference to the texting regulations. However, as you correctly pointed out, section 3(8) of the 2006 Act provides a penalty of a fine on summary conviction not exceeding €2,000. The Department has since clarified this to the media.

Initial media reports, relying on a note from the Department of Transport, said that the penalties included a jail term of up to 12 months. The clarification is welcome, but he did not address the drafting error in the regulations, which I mentioned in April:

The 2014 Regulations do not apply to “a person to whom section 3(1)” of the 2006 Act applies. Section 3(1) provides for the offence of driving while holding a mobile phone. Section 3(2) exempts Gardaí and emergency services personnel on duty from the prohibition, so I assume the 2014 Regulations are in error and intended to refer to section 3(2).

Plain packaging, conflicts of interest and the Law Society

Smoking GunThe controversy over plain packaging rumbles on and the campaign by the tobacco industry against new packaging laws has stepped up a gear now that the English Government has edged closer to introducing a law like the one proposed by the Irish Government. The industry has always threatened to challenge these laws and it appears likely they will. The last Minister for Health was adamant that the law be introduced. I do not know the attitude of Leo Varadkar, the new Minister for Health, to the Bill.

My specific interest, which I wrote about before, was the involvement of solicitors in opposing the proposed law. The law would, according to the Law Society, be an attack on intellectual property and would damage our international reputation. Both are questionable arguments but the Law Society is not alone in having these views: it is joined by the major tobacco companies, who made submissions to the Oireachtas in almost identical terms.

(As a sidenote, it is striking that most members of the profession who were happy to rubbish concerns raised about the submissions made by the Law Society to the Oireachtas were also very quick to acknowledge their lack of expertise in intellectual property law. I did not notice many intellectual property law practitioners publicly defending the submissions.)

While I am of the opinion that the plain packaging issue is not one of any significant importance to the legal profession or the Law Society, my main concern is that the submission document disclosed no relevant interests on the part of the Law Society Intellectual Property Law Committee that drafted them. In fact, it didn’t name the authors or the Committee members.

I had a number of communications with the President of the Law Society about the issue and he ultimately wrote to me, characterising my comments as amounting to a view that a member of the IP committee of the Law Society had engaged in “highly improper conduct of acting in a conflict of interest situation”. I made no such allegation.

On a preliminary, technical, note: the committee members were not, to my knowledge, “acting” for anyone when they were formulating their submissions. A solicitor’s involvement with a Law Society committee is an unpaid role and is not carried out on behalf of specific clients. It is a means by which the solicitor with expert knowledge shares that knowledge to benefit the Society and others.

My view is that where the Law Society and its committees engage in lobbying relevant interests should be disclosed, as should be the case when anyone engages in lobbying. In this particular instance, I would expect that a submission by the IP Committee would disclose in the document itself who its members are and what members act for tobacco companies, the Health Service Executive, the Irish Cancer Society or any other interested party.

Expecting the disclosure of interests is not a revolutionary idea: it should be the bare minimum standard the Law Society holds itself to.

By interpreting my concerns as he did, the President decided that he was of the view that I was, in fact, making “a serious complaint about the conduct of a solicitor.” Not correct: I was making a complaint about the apparent lack of procedures in Law Society committees when lobbying on proposed legislation. Plain packaging was a current example but the issue is much larger.

But by deciding that my concerns were a misconduct complaint the President could then conclude that it would be improper for him to become involved and instead deflect my comments to the Registrar of Solicitors. The President was telling me to make a regulatory complaint against another solicitor. I had no intention of doing so and I had not alleged a breach of conduct, the Solicitors Acts or anything of that nature.

The situation therefore appears to be that the Law Society, as an organisation of its members, is not willing to consider observations from those members about conflicts of interest policies for committees. Instead, issues which arise should be raised as misconduct complaints (which are, obviously, very serious). It is a bizarre attitude to take which muddies the waters between two separate spheres of the profession: client work and the activities of a representative professional organisation.

The Law Society has countered criticism of the plain packaging debacle by insisting that it is not a “front” for the tobacco industry. The President wrote that such ideas were “conspiracy theories” which were “without foundation”. I had not, however, suggested a conspiracy of tobacco companies and their solicitors.  That is not the issue: basic principles of transparency are what members of the Society, and the wider public affected by its actions, should require.

Solicitors represent the interests of their clients, whatever the activities of their clients may be. That is their job. But it is difficult to see why solicitors advocating a particular view on the law, under the banner of the entire profession, cannot include a footnote to disclose whether or not they might act for people or organisations with a direct interest in the outcome. Should the Society not hold itself to that standard?

The MIBI says it will not cover Setanta claims

I wrote in May about the problems which have arisen for third parties claiming against Setanta, which is now in liquidation. A strange series of events unfolded which involved the Minister for Finance, who is not responsible for the Motor Insurers’ Bureau of Ireland, stating in the Dáil that the MIBI had “indicated” that they would cover third party Setanta claims.

The Minister gave no detail and did not say who the MIBI had given this indication to. The Irish Brokers Association circulated a briefing paper to its members which, in 6 pages, said effectively the same thing as the Minister for Finance but which appears to have been based on the assurance given by him in the Dáil.

The Minister for Transport, who is responsible for the MIBI, was more cautious and directed queries to that organisation. I wrote to the Minister for Transport for clarity on the situation and he informed me last month that the MIBI was taking legal advice on its liability in this situation. However, it was clear that they did not believe they had a liability. The Minister said:

I understand that the MIBI considers that it has no liability in instances where an alleged offending vehicle was insured at the time of the accident and that it has never previously been involved when a valid policy of insurance was in place.

The MIBI has now obtained the legal advice which supports this position:

the MIBI Agreement (2009) does not require the MIBI to satisfy awards against drivers covered by a policy of insurance where the insurer is unable to pay all or part of an award due to insolvency.

That clarifies the MIBI’s position but it does not mean that the position is correct. Importantly, it leaves third party claimants pursing claims against a liquidator in the eventual hope of being paid in full, which is unlikely, or claiming against the Insurance Compensation Fund, which is subject to a cap of 65% of the value of the claim or €825,000 (whichever is lower). Of course, the MIBI’s position is based on its own opinion and legal advice and it remains to be seen whether any injured party will challenge that position.

In the meantime, three serious questions remain:

  1. What was the Minister for Finance talking about when he told the Dáil in May that the MIBI had indicated it would cover claims against Setanta?
  2. What does section 4.1.1 of the MIBI Agreement mean when it says that if a judgment is obtained for damages that should be covered by insurance but which isn’t paid within 28 days, the MIBI will pay it “whether or not [it is] in fact covered by an approved policy of insurance” and how does this accord with the MIBI’s legal advice? Does it not, along with clause 4.4, envisage paying out on claims such as those brought against an insolvent insurer or one who refuses to pay?
  3. What is the Government going to do to assist third parties who might now lose out on a significant portion of their compensation through no fault of their own and due to events entirely outside of their control?

The Setanta car crash: what about injured parties?

The collapse of Setanta Insurance is not just a shambles for policyholders. They, at least, could arrange new insurance and at worst lost only the unexpired value of their policy. But what about someone injured in a road traffic accident cause by a Setanta policyholder?

The situation remains murky. Information available from the Central Bank and other sources initially referred to the Irish Insurance Compensation Fund. Calling on the ICF for all claims involving Setanta would put further pressure on the Fund but also be significantly unfair to injured parties, as it only pays out 65% of a claim or €825,000 (whichever is lower). For example: a claimant for €1.5 million would only get €825,000 from the ICF; a claimant for €100,000 would only get €65,000.

In the aftermath of the news solicitors obviously reviewed their personal injury files for claims against Setanta and, in the case of such claims, look for another source of cover. The prospect of involving the Motor Insurers’ Bureau of Ireland immediately arose. The gut response is that MIBI was set up to cover claims against uninsured or untraced drivers, whereas the ICF was set up to cover insolvent insurers. Surely a claim against Setanta “belongs” with the ICF?

The MIBI agreement is poorly worded at the best of times but in this situation perhaps for the better. The agreement says that if an award which should be covered by an approved policy of insurance is not paid in full within 28 days then, whether or not insurance actually was in place, MIBI will pay it. This interpretation is supported by guidance from Insurance Ireland, the industry body, which says that awards not honoured by Setanta should be referred to MIBI who would pay out and seek to recoup funds in Malta, where Setanta is regulated.

On 1 May 2014, the Minister for Finance stated in the Dáil that

The Motor Insurance Bureau of Ireland [sic] (“MIBI”) have indicated that they intend to accept all third party claims in connection to Setanta policies.

The minister responsible for the agreement with MIBI is the Minister for Transport. The Department of Transport has not had much to say about Setanta to date but the Minister for Transport was asked in the Dáil on 8 May 2014 how MIBI would handle Setanta claims. He responded:

The arrangement MIBI puts in place for dealing with the Setanta claims is a matter for the MIBI itself under the terms of the Agreement. I will arrange for the Deputy’s question to be forwarded to the MIBI for them to respond directly to her.

This does not go so far as confirming that MIBI will, in fact, be covering Setanta claims. The question asked of him is important because when a claim arises from an uninsured driver MIBI is sued alongside the defendant (or as the sole defendant if the driver is untraced), whereas the obligation to pay out on foot of an award which has not been honoured by an insurance company is different. There are likely to be a number of cases where a claimant has already sued the other driver but might now be statute barred as against MIBI, if required to join them. However, in that situation one would assume that MIBI should not necessarily be sued as a co-defendant. But the Law Society advises that claims against Setanta be notified to MIBI in the same manner as uninsured/untraced driver cases. This would involve MIBI being sued alongside the driver.

The Irish Brokers Association got a legal opinion on the situation but really it goes no further than to summarise the ICF and MIBI regimes and state that “recent Dáil comments indicate the MIBI scheme may be available in the context of Setanta.”

What has been the response of MIBI to such notifications? I received my first this morning.

Paul Merceica has recently been appointed as liquidator of [Setanta Insurance] and will be responsible for the administration of the Company’s assets and liabilities … You may also wish to refer to the website of the Malta Financial Services Authority for further information …

This is an update about the liquidation of Setanta Insurance, not about how MIBI will deal with Setanta claims made against it. [As an aside: good luck trying to get a substantive response from the Setanta contact centre.] The only relevant response was as follows:

At this point we cannot confirm our position.

Accordingly, how can it be said with certainty that MIBI will voluntarily meet Setanta third party claims? And who is in charge?

In relation to the wider problem with Setanta, David Murphy has a great post on the RTÉ Business blog which highlights a significant fact:

The Central Bank became aware that there were problems in Setanta late last year, it was still permitted to sell insurance policies until it the end of 2013 and went bust last month.

While a customer of Setanta with the foresight to see the writing on the wall had the option of switching cover before the appointment of a liquidator and getting a refund of part of their policy, someone with a claim against Setanta had whether or not they got their money out largely depend on lucky timing.

Service of court documents by social media in Ireland

In recent years there has been a steady flow of stories about the service of court proceedings using Facebook or Twitter, for example. The media likes the novelty of these stories but there is no new law involved.

Certain court documents, particularly those which initiate a case or give notice of a hearing, must be served on the other party. The importance of service is not necessarily that the recipient is aware of the full contents of the documents served or every detail of the case. Rather:

the fundamental purpose of service [is] to give the defendant notice and sufficient warning of the proceedings that he might have to contest. (Dixon J, Royal Bank of Ireland Limited v. Nolan)

Here are some examples of service by social media:

  • In 2009 the UK High Court allowed service of an injunction by direct message on Twitter where the message included a link to the full text of the injunction.
  • In 2011 a UK county court allowed service of a court document by Facebook.
  • Australian courts have allowed service by Facebook and LinkedIn.
  • In 2012 a South African court allowed service of a notice to set down a trial by Facebook message, in addition to being published in a newspaper.
  • In 2012 the UK High Court allowed the service of a commercial claim by Facebook (AKO Capital LLP & another v TFS Derivatives & others [2012]).

AKO Capital is a good example because some detail is available from a note on the case by Latham & Watkins. This was a claim against a financial services broker for alleged overcharging and the broker wished to join a former employee as a co-defendant. Before granting permission for service by Facebook the Court sought assurances that the account belonged to the recipient and that he habitually checked the account. For example, evidence was given that he had recently accepted friend requests. The Court ordered that the relevant documents could be sent as pdf attachments to a private message and service was deemed to have occurred 14 days after the message was sent.

On the home front, Mr Justice Peart granted an order for service by private message on Facebook in 2012 where the plaintiff was not able to locate an address, contact number or other means of contact for the defendant apart from his Facebook account.

You’re not doing anything until the solicitor gets here.

This topic surfaces in discussions of “social media law” and similar areas of law, which brings to mind Frank Easterbrook’s “law of the horse” analogy from the mid-90s.

Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on “The Law of the Horse” is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. (Easterbrook FH, ‘Cyberspace and the law of the horse’ 1996 U Chi Legal F 207)

Service by social media is just another form of substituted service. Most court rules internationally require that court documentation is served in a particular form, such as by personal delivery or registered post, but also provide that alternatives can be used with the permission of the court. Irish court rules provide for such “substituted service” and nothing in those long-standing rules limits the potential for service by social media.

There are separate but similar rules for each of the Irish courts (District, Circuit, High & Supreme) which provide that an application can be made to the relevant Court for service in an alternative manner where there is a reason why the usual manner cannot be used.

Like many areas of the law, new scenarios can work with old laws and no update is required. However, as can be seen from the evidence presented by the applicant in AKO Capital, the affidavit which grounds the application for substituted service should include more detail than would ordinarily be the case in a standard application. At the very least the Court should be provided with:

  • details of the difficulties in affecting service in the ordinary way and what efforts have been made to do it;
  • evidence to establish that the target social media account is owned by the person upon whom service is to be effected;
  • evidence to establish that the social media account is active within a reasonable period of the application; and
  • details of any relevant technical issues and how they will be addressed (for example, if service was by Twitter direct message, how documents will be accessed by the recipient).

Recent experience in the US suggests that some jurisdictions might not allow service by Facebook alone, for example. The rules in the US states are different from those in Ireland and certainly there is no reason why service in Ireland cannot be effected by Facebook alone, subject to the Court being satisfied on the criteria listed above. If there was a concern about the effectiveness of service, an Irish court could direct some other additional mode of service, as happened in the South African case mentioned above.

The issue of service frequently arises as a potential technicality to defeat proceedings but the Courts can retrospectively deem service to be effective, as can be seen from this reason Supreme Court decision.

Hanging on the telephone – has anyone got it right on the new ban on text driving?

[Updated 1/5/14] The ban on texting while driving comes into effect tomorrow (1 May 2014). There has been some confusion about what exactly it prohibits but the best advice, from a practical and legal point of view, is simple: don’t use a mobile phone while driving.

Texting While Driving

Holding a mobile phone while driving was prohibited by the Road Traffic Act 2006. The Act allowed the Minister for Transport to introduce regulations restricting or prohibiting the use in vehicles of mobile phones, in-vehicle communication devices, information equipment or entertainment equipment. Minister Leo Varadkar has now done so in respect of what can loosely be called “texting”.

The 2014 Regulations prohibit sending or reading text messages while driving. There appears to be much confusion about this new law. It bans reading and sending texts while driving and clarifies that:

  • a “text message” includes an SMS, MMS or email;
  • “read” includes access or open, but not by voice-activation;
  • “send” includes compose and type “but does not include anything done without touching the mobile phone”.

There is a peculiarity in the difference in language between “read” and “send”. The former uses the phrase “voice-activation” and the latter “without touching the mobile phone”. The 2006 Act (the parent legislation of the Regulations), however, uses the phrase “hands-free device” which is one “designed so that when used in conjunction with a mobile phone there is no need for the user to hold the phone by hand”. The 2014 Regulations should be consistent with section 3 of the 2006 Act and it would have been better to use the phrase “hands-free device”.

(As an aside: the 2006 Act defines “hold” as meaning “holding the phone by hand or supporting or cradling it with another part of the body”, so the various contortions drivers sometimes resort to are pointless.)

The peculiarity in the language of the 2014 Regulations appears to me not to account for how phones are used. For example, you could read a message by voice activation by requesting Siri to read a message. However, to activate Siri you must press a button either on an iPhone or a built-in Bluetooth system. In the case of the former, therefore, the user must touch the mobile phone. Do the 2014 Regulations allow this for reading a message but not for sending one? Voice activation systems generally require at least one button to be pushed before being used. It does not necessarily mean that this will be a fruitful source of technical challenges, but it is inconsistent.

You might be inclined to think that the repeated use of the phrase “mobile phone” limits the law, but the 2006 Act defines a mobile phone as “a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function”. So, the legislation appears to cover a tablet with a sim card, for example.

The 2006 Act provides two defences: using the phone to call emergency services or acting in response to a genuine emergency.

[Updated] Media reports about the law are confusing. This morning (1/5/14) I heard various radio reports that the law prohibits “accessing information using a phone” (it’s not that wide) and sending a text message, even using a handsfree kit (it doesn’t appear to). The confusion is compounded by this explanatory note from the Department of Transport (brought to my attention by Steve White in a comment below). It says:

These regulations apply to mobile phones which are not being held, i.e. to hands-free devices.

This is not quite correct – the Regulations apply to any communications device which fits the definition of a “mobile phone” in the 2006 Act. The reference to hands-free devices is significantly confusing – the Regulations appear to allow the use of handsfree devices, but this note says the Regulations apply to them. What I assume the Department means is that the Regulations apply to the use of mobile phones when not being held. The note goes on to compound the confusion:

Contrary to some misleading media reports, they do not make it an offence to speak via a hands-free device. Nor do they make it an offence to touch a button on a hand-free device in order to answer a phone call.

The penalties involved are a source of confusion, to me at least. Reports by the Irish Times and RTÉ refer to fines of €1,000 for a first offence and €2,000 for the second as well as a possible jail term of up to 12 months. I don’t know where these penalties come from as they are not contained in the 2014 Regulations and section 3 of the 2006 Act does not provide for them. This appears to come from the Departmental note linked to earlier, which refers to these penalties on the basis that the Regulations come under the “general penalty” in section 102 of the Road Traffic Act 1961. Section 102 applies to an offence in the Road Traffic Acts for which “no penalty is provided for the offence”. However, the 2006 Act says that the penalty for holding a phone or other offences made by regulation is a Class C fine (maximum €2,500). Therefore, section 3 provides for a penalty and I do not see how the general penalty in section 102 of the 1961 Act arises.

Holding a mobile phone is a penalty points offence which now results in 3 penalty points on payment of a fine or 5 on conviction in court. (As with all penalty point offences, the judge has no discretion and they automatically follow a conviction.) Texting while driving is not a penalty points offence.

There has been much hand-wringing and concern about whether or not the 2014 Regulations prohibit the use of Google Maps or Hailo, for example. They don’t, but this does not mean that drivers should feel free to use non-texting functions of their phones while driving – holding a mobile phone (which could include a tablet) while driving remains prohibited, whatever the use it is being put to. Moreover, offences of dangerous and careless driving and driving without due care and attention could cover a wide range of bad driving, and could include, for example, driving while zooming in and out of maps on your phone or sending stickers on WhatsApp.

PS: The 2014 Regulations do not apply to “a person to whom section 3(1)” of the 2006 Act applies. Section 3(1) provides for the offence of driving while holding a mobile phone. Section 3(2) exempts Gardaí and emergency services personnel on duty from the prohibition, so I assume the 2014 Regulations are in error and intended to refer to section 3(2).



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