Tag: irish law

Challenging court closures

A few years ago there were concerns, which sometimes resurface, that the Courts Service might close the District Court in Newcastle West and transfer its sittings elsewhere. The only logical venue would be Limerick city, which would raise a number of problems for the Courts Service, lawyers and their clients.

It appears unlikely, at least for now, and in the past year some areas have been added to the Newcastle West district. Court sittings have also been reorganised. Other districts have not been so lucky and have lost out on their local court house.

The West Cork Bar Association has recently been granted leave by the High Court to challenge the closure of the court in Skibereen.

The West Cork District Court area extends from Kinsale westwards as far as Castletownbere. In recent years, there has already been seven local courts closed by the Courts Service in the West Cork area, the most recent being Kinsale District Court which sat for the last time on December 19.

The West Cork Bar Association issued a statement yesterday saying solicitors were concerned court closures were seriously eroding access to justice for people living in the region. The organisation said that if more closures were allowed to proceed, the people of West Cork would face travelling long distances to Cork City to deal with district court matters, when under the Constitution, the State has to provide courts of local and limited jurisdiction.

Solicitors pointed out that vulnerable citizens, who require the urgent assistance of the district court, such as in a domestic violence situation, will find it much more difficult to access the help and protection they need.

I mentioned previously a High Court judgment which dismissed a challenge brought by solicitors in New Ross area against the temporary relocation of court sittings to Ardcavan. The challenge was on public interest grounds and on the basis that the move threatened the applicant’s right to earn a living.

In that case, the Courts Service argued that solicitors do not have locus standi (a legal interest) to challenge the closure. Mr Justice Hedigan rejected that argument:

I accept that as solicitors practising in the relevant area they have a strong interest in the decision sought to be quashed both in their own and their clients interest. The question is fairly posed “if they do not have locus standi – who does?” The fact their interest coincides with the public interest does not, it seems to me, alter anything. In my view, the applicants have the requisite locus standi to challenge the decision made.

However, in the New Ross case the transfer was originally intended to be temporary due to an “urgent need” where the courthouse was “unsafe or otherwise unusable” and therefore the challenge was dismissed. Mr Justice Hedigan’s decision obviously leaves the wider questions open:

  1. is a court closure an attack on the constitutional right of local solicitors to earn a living; and
  2. is a court closure an attack on the constitutional right of citizens to have access to justice?

We might get an answer from Skibereen.

Protecting court proceedings from social media

[Updated 6/2/14] The most high-profile white collar crime trial in the history of the State got underway today. This post in not about that case, but rather the impact of social media on court proceedings and reporting. Previously, when the jury for that trial was being selected and sworn in, Judge Martin Nolan made a number of interesting comments which hint at the impact social media and the internet can have on court proceedings.

Jury Cat

[Judge Nolan] told the panel that it is unrealistic to expect them not to have heard of Anglo but said that anyone who has expressed strong views in public should not sit on the jury.

He said that this includes views expressed on the Internet, including Facebook. Judge Nolan said it would be embarrassing for the jurors if it emerged during the trial that they had expressed views on Anglo on such “permanent forums.”

Once the jury had been selected, he warned jurors that they “should not conduct their own investigations into the case or even read up on it. He said he will regard such activity as a breach of the jurors’ oaths.”

The risk that a juror would engage in independent research is not new but it is heightened by social media and the availability of information online. For example, a university lecturer in the UK was jailed for three months in 2012 for researching a defendant online and sharing her findings with the jury.

It is obvious from the comments of Judge Nolan that the Irish judiciary is alert to the risks. With smartphones in every pocket an array of research resources are available to everyone to an extent unimaginable fifteen years ago. The temptation for a juror to google the accused over lunch could be considerable. [In fact, the issue has already arisen: last year a criminal trial in Cork collapsed when the jury foreman informed the judge hearing the case that a juror had learned of information concerned the accused on Facebook and had discussed it with fellow jurors. Judge Ó Donnabháin warned the juror that she could be facing contempt of court proceedings and granted her legal aid in order to engage a solicitor.]

Research by jurors is an issue which the Law Reform Commission has already considered, in their 2013 Report on Jury Service.

The advent of the internet and social media sites, and in particular their ready accessibility through smart phones or Wi-Fi enabled tablets, now provide access to a wide range of materials such as archives of media reports that may have reported on the factual background to a trial, general information on scientific matters that might arise in a trial (such as DNA evidence) and a huge array of general commentary such as blogs and other material from social media. This information can contain prejudicial material, and has the potential to impact on the right to a fair trial. In recent years, trial judges have incorporated specific comments to the jury not to access information regarding the trial through internet search engines or social media.

The Commission recommended that specific reform was needed to deal with juror misconduct in carrying out “extraneous investigations” using the internet and social media. Their report includes a draft Juries Bill 2013 which includes, in section 39, an offence of making inquiries about the accused or any other matters relevant to the trial. “Making an inquiry” is defined as including “conducting any research, for example, by searching an electronic database for information (such as by using the internet), viewing or inspecting any place or object, conducting an experiment or causing someone else to make an inquiry.”

The proposed penalty, however, is a Class B fine on summary conviction – currently a maximum of €4,000. Under the existing law, referred to by Judge Nolan, such research could be a breach of the juror’s oath and result in a finding that they are in contempt of court. Such a finding could lead to a prison sentence, as has happened in the UK. I suspect that the proposal by the LRC is intended to highlight the issue for jurors and while the draft Bill is only a suggestion, one would think that a stronger maximum penalty is warranted.

Inappropriate contact between parties to proceedings is another risk, referred to by Gerry Curran in the Courts Service News in 2012.

Examples of flagrant abuse of this exist [internationally], including the appearance of disparaging remarks about other jurors on social media sites and jurors ‘friending’ each other on Facebook, trying to ‘friend’ counsel for either side and even ‘friending’ defendants in cases they were serving on.

This might appear unlikely to some readers but anyone who has maintained social media accounts for a few years is likely to have received more than one unexpected friend request. Juries already get warnings about discussing cases, but Judges may have to spell things out for jurors. According to Curran:

“[Studies suggest] that the magnitude of social change caused by social media requires the judge to adopt additional specificity when giving instructions. Brand names of social media need to be used as people are so used to using them as an extension of thought. It is also important to emphasis the fair trial element of the instruction – as the same familiarity might well cause a feeling in the juror of giving up a personal freedom in not communicating.

As if the courts don’t have enough on their plate worrying about the conduct of juries, court orders can of course be broken by members of the public. In the UK in 2013 two men received suspended sentences for posting photographs allegedly showing the now-adult killers of James Bulger, in breach of an injunction, on Facebook and Twitter (AG v. Harkins & Liddle [2013] EWHC 1455 (Admin)). That decision shows the relative speed and success with which the UK authorities have kept on top of the issue and no doubt will act as a deterrent in future.

Whatever about jurors, journalists have certainly taken to social media and many provide interesting updates in between various court hearings. [In fact, the Irish Times is liveblogging the Anglo trial.] Curran notes the risks:

Live ‘tweeting’ is akin to broadcast – it is sent with no delay, there is no taking it back, and no limits to dissemination. But what if soon after a courtroom tweet a judge rules something inadmissible, or to be ignored by the jury, or is patently shown to be a lie? In the UK guidelines effectively limit the use of Twitter to accredited media, who apply to do so and who, of course, are familiar with the court process and the consequences of endangering same.

Again, these risks are not necessarily new: a journalist might deliver an update on radio news during a lunchtime broadcast which includes material which might later be ruled on by the presiding judge. Journalists, of course, have expertise in dealing with court reporting and generally are sensitive to what should and should not be reported depending on the stage the case has reached.

Very meme

Nevertheless, recent developments certainly suggest an aversion to live tweeting or “contemporaneous reporting”. In the high profile surrogacy guardianship case  (M.R & Anor v. An tArd Chlaraitheoir & Ors [2013] IEHC 91), the appeal of which is currently being heard by the Supreme Court,  Mr Justice Abbott directed that the case be heard otherwise than in public but that certain journalists be allowed to attend and report on the hearings subject to a number of conditions, including that “no contemporaneous social media reporting e.g. by Twitter shall be carried out”. [I am not sure how the Irish Times liveblog of the Anglo trial is maintained but such a blog could constitute contemporaneous social media reporting.]

Similarly, family law proceedings have now been opened up to the media who can report cases so long as the parties are not identified. New guidelines on reporting of such cases prohibit live-tweeting (although the Courts and Civil Law (Miscellaneous Provisions) Act 2013 do not contain the prohibition). Those guidelines appear to have been circulated to judges but not, to my knowledge to date, to lawyers and they don’t appear to be available on the websites of the Minister for Justice or the Courts Service.

As with many areas of the law, it is enforcement rather than any new measures themselves that will be interesting. Recent experience in the UK is of effective detection and prosecution of offences followed by serious penalties. The Anglo trial, which will last for months and be of intense media interest, may provide the first real test for the Irish court system in dealing with these dangers.

Financial Services Ombudsman: a preference for “talk” over rights?

Late last year the Financial Services Ombudsman made some remarkable comments about High Court judgments affecting his office. He acknowledges that powerful agencies should be accountable to the courts, but believes that judicial decisions have been inconsistent and/or incoherent. The tone of the comments is alarming, given that the Ombudsman deals with complaints made by consumers.

FSO

The Ombudsman provides a form of binding arbitration which does not impose costs (either up front or as a consequence of losing) and so it is obviously attractive to consumers. However, the sting in the tail is that a decision of the Ombudsman can only be appealed to the High Court, which would otherwise only deal with cases worth more than €75,000.

An appeal from a decision of the Ombudsman must be lodged within 21 days. The Ombudsman’s website helpfully informs visitors that parties wishing to appeal should contact the Central Office of the High Court. Appeals are not simple: they will probably involve complicated issues of fact and law. The complainant may not have had legal or professional advice during the course of the complaint but would reasonably seek at this stage.

The Ombudsman is affronted by the outcome of some of these appeals.

He said findings that he should hold an oral hearing if there was a “conflict of material fact” in a case were “not compatible” with the operation of his office. “If we have to hold an oral hearing in every such case, I hope our political establishment has the intellectual honesty to abolish the office because otherwise it is simply a charade,” he said.

This is a surprising argument: it is not “compatible” with the operation of his office to hold oral hearings, so therefore decisions saying that oral hearings might be necessary are incoherent or, at least, somehow incorrect. When dealing with these appeals the High Court is considering issues of fair procedures and the correct application of the law, not the convenience of a State body. Whether or not the holding of oral hearings is compatible with the Ombudsman’s office is a question for the executive, not the courts.

Mr Prasifka said if the logic of one judgment was followed, “potentially every one of the thousands of decisions made since we have set up is constitutionally challengeable”.

One might think that such a decision suggests that the practice or the law needs changed. Instead, the Ombudsman takes the view that these decisions are “incompatible” with his office and therefore wrong. By contrast, he believes that financial institutions should “learn” from their experience of complaints decided on by his office. He does not appear to consider the possibility of financial institutions taking the view that decisions by his office are “incompatible” with their own business (as, in fact, seems to be the attitude of certain financial institutions).

The Ombudsman, however, appears to betray his true feelings by suggesting that perhaps the Ombudsman system just won’t work in Ireland because “rights are much too important”. This is an extraordinarily dismissive attitude to the rights and interests of complainants. One must wonder what is more important than rights? Perhaps bureaucratic efficiency or satisfying some particular group over the interests of individual rights holders. Bear in mind: the statement was made by the  “most powerful office of the ombudsman in the world”.

William Prasifka

The Ombudsman was subsequently interviewed on RTÉ’s This Week radio show. First, however, Padraic Kissane was interviewed and discussed his extensive experience of Ombudsman complaints. He said that he had dealt with a number of identical complaints to the Ombudsman that resulted in inconsistent decisions.

[The banks] take the view that they really have nothing to lose by getting a case referred to the Ombudsman because  … the win percentages of the Ombudsman for complainants is so low in Ireland, compared to the UK for example, and I have seen and have in my files inconsistent decisions from the Ombudsman’s office relating to the identical terms and conditions of an application and they were both within three months of each other. So it’s the inconsistency of the whole issue.

Mr Kissane refers to the “win percentage” for complainants. The win percentage for financial institutions has gone from 63% in 2009 to was 73% in 2012.

A significant issue for the operation of an office like the Ombudsman is that while it purports to be in the interests of consumers by providing a cost-effective means to pursue a complaint, the reality is that it is pitting those consumers against seasoned professionals. Not only that: consumer complaints are being arbitrated by an office that does not want to be constrained by having to respect the rights of the people who generate the complaints.

This is, in many respects, the contemporary blueprint for justice. The Personal Injuries Assessment Board is another low-cost, modern alternative to courts but one which again encourages individuals to enter a forum, alone, in which they are faced with heavyweight professionals. There are calls for the establishment of a similar body to deal with medical negligence claims. It is popular, if not populist, to essentially seek the removal of lawyers from the equation, but does that protect the interests and rights of citizens? In addition: each time a new dispute resolution forum is established the supposed failings of the courts system remain unaddressed.

One of the consumer’s rights is the right, already referred to, to appeal a finding of the Ombudsman to the High Court. Whether to do so is a serious question. Such an appeal would not be expensive and risky. Many would seek legal advice and services and might not have had those services when first dealing with the complaint. So the complainant and their lawyers have only 21 days in which to weigh up the situation and make a decision.

Given the Ombudsman’s statements about High Court decisions it might not be surprising that he does not appear to be in favour of people taking such appeals.

If anyone thinks that we’re inconsistent they should come and talk to us and in certain cases where people have come to talk to us about this we found that on a closer examination there are actually important differences between the cases and that explained by and large the different result. But look, we always seek to improve our decision making and anyone who has a concern about that is really free to come and talk to us.

I don’t know how available the Ombudsman’s staff are to people who want to “come and talk” but it would seem to be an unhelpful approach to suggest that people who have 21 days in which to decide whether to appeal a decision should first consult the other side in this manner.

Significant reforms of family law in 2014/15

Two important announcements have been made by the Government that will lead to reform of family law in Ireland:

  1. a referendum on same-sex marriage will be held in the first half of 2015;
  2. the Family Relationships and Children Bill will be enacted in advance of it.

Both announcements are the responsibility of the Department of Justice where the Minister, Alan Shatter TD (FG; Dublin South) has a long-standing interest arising out of his significant, high-profile career as a family law solicitor. He, literally, wrote the book and has been calling for reform of many aspects of family law for decades. The Bill is not a comprehensive reform package, but does address some key issues.

The current situation in cases involving children where the core concern of the courts is their welfare will be updated to emphasise their “best interests”, as will be required by the new article 42A.4.1° of the Constitution once signed into law by the President (assuming that the Supreme Court appeal challenging the referendum result is unsuccessful). The wording of the Bill itself is not yet available, but the proposal to include legislative guidance on the best interests principle is particularly welcome. “Best interests” will

includ[e] the benefit of meaningful relationship with both parents, ascertainable views of the child, needs of the child, history of upbringing and care, religious, spiritual and linguistic needs, harm suffered or which the child is at risk of suffering, custody arrangements, capacity of applicants etc. [as well as considering] any family/domestic violence and its impact

Existing guardianship legislation provides little detail on the nature, obligations and powers of guardians and this will also be changed. In addition, the range of people who can become guardians will be expanded to provide greater opportunity for non-parents to obtain guardianship. This will particularly benefit non-parents who reside with a child as a spouse, civil partner or cohabitant of that child’s parent. It also envisages guardianship for non-parents who have cared for children where their parents or guardians were unwilling or unable to do so.

While principles concerning the voice of the child in family are established in practice the Bill will clarify those principles, for example by requiring that a child over 12 must be consulted in relation to guardianship, custody and access applications. 

The Bill includes limited provisions to deal with assisted reproduction and surrogacy. While assisted reproduction will not be fully regulated, the Bill will specify who the legal parents of a child are in a number of possible scenarios. The Bill will also prohibit commercial surrogacy arrangements.

There have been reforms to the law on children, cohabitants and civil partners in recent years but there has been little reform of the key questions of parentage, guardianship, custody and access. Part of the reason, it could be surmised, is an unwillingness to tackle such issues when a variety of alternative or new family arrangements have arisen but were considered too politically controversial to address, for whatever reason.

Between 2008 and 2011 very little happened that was not dictated by economic considerations and it is refreshing to see that, while those considerations still dominate, the current Government has evidently decided to tackle social issues as well.

More detail on the proposals should be available by the end of 2013 with the Bill being published and (it is intended) enacted in 2014. The Government has created a long run-up to the same-sex marriage referendum, which will allow significant time for debate, though the proposed legislation is unlikely to be available before 2015.

Road tax implications of horses in caravans

A caravan, to most of us, brings to mind cramped “holiday” accommodation in wet, seaside fields.

Motor caravans (including camper vans) are large vehicles, but benefit from reduced rates of road tax and reduced compliance obligations. They are used for leisure purposes (ie. tourism) which the State obviously has an interest in encouraging.

Pushing it.
Pushing it.

However, a “motor caravan”, as defined in Irish law, can be a much larger vehicle than the traditional caravan or camper van. For example, a commercial vehicle like a truck can be converted into a motor caravan and might have a large storage area which could be used to contain bicycles, or even animals. Once the vehicle meets the requirements of the Revenue Commissioners and is used for private purposes it can benefit from a special €95 rate of road tax. If its weight does not exceed 7.5 tonnes it does not require a tachograph machine.

Concessionary rate of road tax

The issue of road tax sometimes arises when the owner of a large motor caravan is accused of having paid the incorrect rate of tax. A vehicle must be taxed at the highest rate applicable to its use and, for example, commercial vehicles are taxed according to weight.

The definition of a “motor caravan”, for the purposes of road tax, is:

a vehicle which is shown to the satisfaction of the Commissioners to be designed, constructed or adapted to provide temporary living accommodation which has an interior height of not less than 1.8 metres when measured in such manner as may be approved by the Commissioners and, in respect of which vehicle, such design, construction or adaptation incorporates the following permanently fitted equipment—

(a) a sink unit,

(b) cooking equipment of not less than a hob with 2 rings or such other cooking equipment as may be prescribed, and

(c) any other equipment or fittings as may be prescribed

A special annual rate of tax for motor caravans has existed in Ireland since 1998, currently €95. By contrast, rates of road tax for commercial goods vehicles can reach almost €5,000 annually.

The fairness of the special rate for motor caravans was raised in the Dáil in 2012 by Sandra McLellan TD (SF; Cork East), who asked:

whether it is equitable that a large motor caravan only pays €95 road tax while it costs €307 for an 1108cc Fiat Panda

Phil Hogan TD (FG; Carlow-Kilkenny), Minister for the Environment, Community and Local Government explained the background to the rate.

I understand that the rationale behind the introduction of the concessionary rate was that, while motor caravans are generally less in use than many other categories of vehicle, rates of motor tax were relatively high … I understand it was also considered that a concessionary annual rate of tax for motor caravans would encourage tourism and tourist related activities, not least by facilitating more out-of-season use of motor caravans, where previously owners may have taxed and used the vehicle for only three months of the year due to cost.

Some motor caravans have attracted attention because they resemble commercial goods vehicles, having started out life as such and having been converted into motor caravans. The owner of such a vehicle might be stopped by An Garda Síochána and told that their €95 rate is insufficient and a higher rate, which could well exceed €1,500, is due.

I have successfully defended a number of such prosecutions. If the registration certificate says the vehicle is a motor caravan and it is being used for private and leisure purposes, the €95 rate applies. Prosecutions have arisen because the vehicles in question, while meeting Revenue requirements, included an open cabin area at the rear which might be used for the carriage of, for example, horses. The legislation does not say that this is permitted but neither does it prohibit it. Once the horses are not being carried for commercial purposes, the higher rates do not apply.

Tachographs

© National Library of Ireland
Simpler times.

Many vehicles require tachograph machines in the interests of road safety. It is often thought that motor caravans are exempt from that requirement, but that is not quite correct.

There are a range of exemptions available and though they have different legislative sources they are listed in the Road Safety Authority tachograph declaration form. The two most relevant to motor caravans relate to weight:

  • where gross vehicle weight does not exceed 3.5 tonnes; or
  • where the vehicle or combination of vehicles does not exceed 7.5 tonnes and is used for the non‐commercial carriage of goods.

Confusion sometimes arises because the law on tachographs is made primarily on a European Union level and implemented into Irish law. The Irish regulations do not specifically mention all the exemptions available but some of those referred to are similar to those not referred to. Which is less than helpful.

For example, regulation 5(1) of the Irish law exempts a range of vehicles from the requirement to have a tachograph fitted. Subsection (d) refers to combinations of vehicles not exceeding 7.5 tonnes, but only when used by a universal service provider or for carrying equipment for use in the course of the driver’s work. This is sometimes understood to be a qualification of the non-commercial 7.5 tonnes exemption referred to but in fact it is a different exemption. Regulation 5(1) does not contain the full list of exemptions: regulation 21(1) goes on to say that the Irish law does not apply to vehicles exempted by article 3 of Regulation 561/2006, which itself contains the non-commercial 7.5 tonnes exemption.

Therefore, for most caravan owners, if your vehicle is under 7.5 tonnes a tachograph machine is not required.

As with road tax, confusion sometimes arises because converted commercial vehicles might still contain the tachograph machine that was used in the vehicle’s former life. It might not be functioning any more, or the driver might re-use an old tachograph card when driving, each of which could ordinarily constitute offences. However, if a tachograph machine is not required in the vehicle to begin with it does not matter that the machine is not functioning or is not being used properly.

Getting intellectual property right

There were newspaper reports yesterday of Damien O’Regan’s proceedings against Andy Quirke and RTÉ arising out of the Damo character played by the former and broadcast by the latter (O’Regan v. Quirke & RTÉ 2013/9674P).

Damo
Damo was not happy to meet the summons server.

The Irish Times and the Irish Independent  report in almost identical terms that Mr O’Regan is

suing … for alleged copyright infringement … [and that] he claims he registered the name ‘Damo’ with the Irish Patents Office.

Mr O’Regan told the court that the use of the name Damo is a clear breach of his trademark and said he had not given his consent for its use by Mr Quirke.

It may well be that Mr O’Regan will be suing on the basis of copyright and trade mark rights, but that seems unlikely. Mr O’Regan holds a registered trade mark for the word DAMO and is suing Mr Quirke and RTÉ for allegedly infringing it. Kate Gorey points out that this may be the first “character mark” case before the Irish courts.

Copyright and trade marks are not the same thing. Confusion about the types of intellectual property that exist and the rights they give is commonplace. We aspire to be a “knowledge economy”. Any economy like ours requires the creation of intellectual property to survive in the contemporary market. So the above story is a good excuse to briefly outline the types of intellectual property that exist.

What intellectual property rights are there?

The following is an attempt to summarise the different rights available so that they can be distinguished. Not all are strictly intellectual property rights but they are often considered together. The main rights are copyright, trade marks and patents. In very simplistic terms: copyright protects things like books and music, trade marks protect brands and patents protect inventions.

  • Copyright: a property right in a work (generally creative works, but it can include compilations of works and databases). In Irish law copyright exists once the work is created. It does not apply to ideas, only the implementation of them. It does not have to be registered. When a work was created is a question of fact but there is no specified way of establishing that. For example, it is not required that you post a song to yourself in order to copyright it, but doing so might help you establish the date of creation. Copyright is governed by the Copyright and Related Rights Acts 2000 to 2007.

FAQ on the Irish law of copyright and designs by FR Kelly

  • Trade mark: a sign capable of being represented graphically (including in text) which can distinguish goods or services of one undertaking from those of other undertakings. Trade marks are registered with the Irish Patents Office (community trade marks, which also have force in Ireland, are registered with the strangely-titled Office for Harmonization in the Internal Market). There are no private trade mark registries. Trade marks are governed by the Trade Marks Act 1996.

FAQ on the Irish law of trade marks by FR Kelly

  • Patent: an invention which is new, involves an inventive step and is susceptible to industrial application. Irish patents are registered with the Irish Patents Office and are governed by the Patents Acts 1992 to 2012.

FAQ on the Irish law of patents by FR Kelly

  • Design rights, industrial designs and database rights: specific forms of intellectual property right. They are comparatively complicated and what is protected can overlap with the other rights. For more see the FR Kelly FAQ on copyright and designs, the IPO on designs or OHIM on designs.
  • Passing off: a tort of passing off goods or services as those of another in a manner calculated to deceive. It is not governed by legislation and does not have the same remedies or enforcement procedures as, for example, copyright, trade marks and patents. It may be thought of as a form of protection for unregistered trade marks (which don’t strictly exist in Ireland).
  • Registered business name: these are not a form of intellectual property but are often mistaken to be one. I wrote about them here.
  • Domain name: these are registered internet addresses. Also not strictly a form of intellectual property but are lumped in with it.

Don’t be fooled by inauthentic registrars

A number of scams have operated in the past decade or so whereby businesses receive letters or emails offering to register some form of intellectual property or protect a right. There are genuine professional service providers like trade mark and patent agents who advise on protecting and registering intellectual property. They can prepare and lodge registration applications and deal with them until they are granted. But they do not, themselves, act as the registrar.

The copyrightyourname.com site appear to offer, for a substantial fee, some form of registration service but the site is highly confused. The website operators cannot offer the service advertised and must know that they cannot offer it. You cannot register copyright in Ireland. You can register trade marks, but only with the Irish Patents Office or OHIM. A private entity like copyrightyourname.com cannot carry out that function.

What rights the registration of a name as a trade mark provides is a more complicated question. You can, by all means, join copyrightyourname.com and part with your money, but you will not be getting a trade mark in return and you will not be getting any additional copyright protection.

Why no separate vote on the abolition of the “one judgment rule”?

[Correction at end] Alan Shatter is concerned that RTÉ is not giving sufficient coverage to the upcoming referendum on the establishment of a civil court of appeal.

“I find it extraordinary that RTÉ on their six o’clock TV bulletin failed to make any mention whatsoever of the referendum being held to establish a court of appeal,” the Minister said.

He may be right, but it is not a constitutional amendment that was ever likely to generate much interest. If the Government genuinely wanted to ensure a high profile debate on the proposal it should not have scheduled the vote to take place on the same date as the referendum to abolish the Seanad . That proposal concerns politicians and inevitably most air time is consumed by them.

What is far more extraordinary is that the Government has tucked away in the court of appeal referendum an entirely separate amendment to the Constitution. This separate amendment would remove one of the “one judgment” rules from the Constitution (see section 5 of the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013). It has nothing to do with the court of appeal, but we will vote on both amendments together.

The first I heard of the proposal was in Michael Williams’ article in the Irish Independent on 4 September 2013:

On October 4 next, as well as voting on abolishing the Seanad, we will consider a composite proposal, first to approve the establishment of a new Court of Appeal and, second, to remove a rule that when the Supreme Court makes a decision on a constitutional issue, only one judgment appears.

But, amazingly, the Government has limited our choice. We must vote for or against the package. We may not approve one part but not the other.

The one judgment rule (article 34.4.5°) arises when someone challenges the constitutionality of a law before the Supreme Court. Usually, the Supreme Court issues a majority judgment and other judges who sit on the particular case can supplement that judgment with comments of their own or, if they disagreed, can issue a dissenting judgment outlining why they took a different position. This is not the case with a constitutional challenge, when only one judgment may be issued and no others can be published which indicates the majority view.

"Where is my minority report?"
“Where is my minority report?”

It is of historical and political interest that the one judgment rule was not in the original 1937 Constitution but was introduced in 1941 during the transitional period when the Oireachtas could amend it without holding a referendum. The history of the 1941 amendment is set out in the report of the Constitutional Review Group (1996):

[The provision] seems to have been inserted as a direct result of the decision of the Supreme Court in In re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940] IR 470. In this very sensitive case, the Supreme Court upheld the constitutionality of the Offences Against the State (Amendment) Act 1940 (which provided for internment) a few months after the High Court had pronounced that similar legislation was unconstitutional. Chief Justice Sullivan commenced the judgment of the court by announcing that it was the ‘decision of the majority of the judges’ and as Chief Justice Finlay was later to state in Attorney General v Hamilton (No 1) [1993] 2 IR 250:

This was apparently seen to indicate a dissenting opinion which, it was felt, could greatly reduce the authority of the decision of the court and, we are informed, and it is commonly believed, led directly to the additional clauses by the Act of 1941 in both Article 26 and Article 34.

This is borne out by Mr de Valera’s comments in the Dáil during the debate on the Second Amendment of the Constitution Bill (82 Dáil Debates 1857-9):

From an educational point of view, the proposal [for separate judgments] would, no doubt, be valuable, but, after all, what do we want? We want to get a decision … The more definite the position is the better, and, from the point of view of definitiveness, it is desirable that only one judgment be pronounced … [and] that it should not be bandied about from mouth to mouth that, in fact, the decision was only come to by a majority of the Supreme Court. Then you have added on, perhaps, the number of judges who dealt with the matter in the High Court before it came to the Supreme Court, as might happen in some cases. You would then have an adding up of judges, and people saying: ‘They were five on this side and three on the other, and therefore the law is the other way.’

What is important is legal certainty as to the judgment, which may affect fundamental issues. It was also suggested that the one-judgment rule allows the Supreme Court to provide the legislature with certainty without any of its members becoming the subject of political criticism and, possibly, pressure. Moreover, certainty would not be provided by a three-to-two judgment where at any time in the future a judge might change his mind on a fundamental issue.

It can be seen that there is a debate to be had about the one judgement rule. The 1996 Review Group considered it and their report outlines four pages of argument either way. Most arguments were in support of abolishing the rule and the argument for keeping the one judgment rule was as follows:

1 it is the decision of the majority of the Supreme Court which really counts and only uncertainty is created by allowing the publication of dissenting opinions

2 the publication of dissenting opinions serves only to weaken the authority of the court’s pronouncement and impair its persuasiveness.

Ultimately, the Review Group was in favour of what the Government now proposes: to remove the one judgment rule in constitutional challenges before the Supreme Court. (The referendum will not remove the one judgment rule in the case of article 26 references by the President, and indeed the 1996 Review Group failed to reach consensus on that point.)

There are clearly reasonable arguments in favour of removing the one judgment rule as is now proposed and the Government could credibly argue that this is a “tidying up” referendum which is merely implementing a recommendation made in 1996 (by a Review Group, it could be noted, established by Fine Gael and Labour when they were last in office).

But the one judgment rule can hardly be thought of as a pressing issue. Why has the Government not taken the opportunity to consider the operation of the article 26 reference power of the President, to which the one judgment also applies, and consider wider reform of the law on constitutional challenges? After all, one of the reasons for establishing a civil court of appeal is to free up the Supreme Court so that it can devote its time to constitutional issues.

Paul McMahon says that while there are positive aspects to the one judgment rule it appears to be a “disproportionate restriction on judicial free speech”. But Michael Gallagher makes the point I alluded to already:

There is certainly a good case for deleting 26.2.2 and 34.4.5, but this is pretty arcane stuff to be putting to the people in a referendum. Any such proposal would surely have to be part of a reform package if it was to generate much interest from the electorate, especially given the ‘referendum fatigue’ noted by Theresa Reidy in her post here on 2 July.

Furthermore, there are existing forums to consider such wider reform. The 1996 Review Group considered almost all aspects of the Constitution, including constitutional challenges in the Supreme Court, and made recommendations for reform. The current Government established a Constitutional Convention albeit one which, despite the grand title, has a limited remit and is ordered to consider a specific list of limited issues, few of which are particularly pressing.

It is peculiar that the current Government has embarked on a series of referendums on constitutional reform which are separate from the Convention. Why are some issues to be considered by the Convention and others not? Why are some amendments proposed, presumably on the basis of recommendations almost 20 years ago, whereas others are put through a fresh round of consideration?

The most important current question is, however: why is the abolition of the one judgment rule not proposed in a separate bill and subject to a separate vote?

One might reasonably be in favour of abolishing the one judgment rule, but the manner in which the amendment is being proposed raise is significant and worrying:

  1. it is included in legislation to establish a court of appeal and although the issues are entirely separate and unconnected they will be voted on as a package;
  2. the government parties do not appear to be making any reference to the proposal in their referendum campaign;
  3. there is little or no debate on the issue.

One might wonder if this is the future of constitutional amendments in Ireland: small “tidying up” measures being tucked into larger reforms, with no government or political attention being drawn to them, no real debate and no option to vote separately on each issue.

PS: Given that polling day on 4 October 2013 includes a referendum on Seanad abolition it is ironic that the only Oireachtas debate on the abolition of the one judgment rule that I could find was in the Seanad (Senator Ivana Bacik; Senator Averil Power).

[Correction] The speech of the Minister for Justice, Alan Shatter, when introducing the Bill did of course note the proposal in the following terms, but did not address why it is included in the court of appeal Bill rather than in stand-alone legislation:

It is my strong view that justice is best served by giving the Judiciary the freedom, where they so desire, to give judgments, including minority judgments, on important matters concerning the constitutionality of our laws. For the time being, this reform, in line with the review group’s recommendation, is limited to the Article 34. Therefore, if the referendum is carried, both the court of appeal and the Supreme Court will be able to issue multiple judgments in cases involving challenges to the constitutionality of laws, in the same way as in all other cases that come before them.

Stop the madness

The Sunday Independent reported yesterday on the infamous “Kilkenny trust” that supposedly allows you to scrub a property free of bank debt, as if by magic. It was reported earlier in the Summer that certain business people, including Bill Cullen, were using the mechanism.

Given the privacy of the operation it is difficult to ascertain from news reports what has been going on but, helpfully, Karl Deeter attended a presentation about the scheme and has blogged about it here. I am not a trust specialist but, in my professional opinion, it looks mad.

I had a few questions of my own reading the post:

  • Why are they recruiting people to enter into the trust? Usually, legal and accounting mechanisms are put in place by a combination of accountants and solicitors to help their clients achieve a certain goal. It is unusual for non-professionals to go about recruiting people to join a scheme like this and, as Karl points out, the don’t seem to have professional indemnity insurance to protect clients when things go wrong. However, I note that they charge a fee themselves.
  • They get you to set up “a private trust in private”. What does the second use of the word private achieve?
  • What is meant by getting a notary to create a “Court of Record”? I’ll tell you: nothing. It makes no sense. A court of record is a court, and notaries don’t “create” courts. In fact, the only notaries in Ireland are notaries public who are only involved in transactions with an international dimension. There is no international dimension to these transactions so a notary should not be involved. The most an Irish notary public might do is verify some document or signature but, again, a notary public only does this for use abroad and a solicitor or commissioner for oaths would suffice.
  • They say that only your folio number goes into the trust. This makes no sense. A folio number is a record number for registered property and has no life or value apart from the property. You couldn’t sell or rent your folio number separately from the property, so how could you transfer it into a trust on its own?

Most of the rest of what they say involves banking and mortgages and Karl has pointed out that it doesn’t add up. I’m sure other solicitors and barristers would notice flaws in the proposal by reading his post (comments welcome here too). Karl reaches the sad but unavoidable conclusion:

This has all of the hallmarks of something that is either ‘too good to be true’ or perhaps ill thought out and where the absence of a challenge to date is being taken as evidence that ‘it works’ which is not how the legal system operates. The moving of an asset to a trust doesn’t mean a legal charge suddenly doesn’t exist, it doesn’t mean that there was never a lien or a contract between two parties, if using trusts to stop creditors was that simple we probably would have heard of it before now.

Of the people at the meeting none of them seemed highly literate financially, several disclosed that they were borrowers of sub-prime lenders and the common thread was that they were all vulnerable and perhaps willing to believe something too easily, because I have learned from experience that when a person is drowning that even if you throw them a rock and say it will float that they are willing to give it a try.

Procedural changes to the courts system in the Courts Bill 2013

The Minister for Justice has published the Courts Bill 2013 (explanatory memorandum here) which will change two aspects of how the courts system works in Ireland: (1) reporting of certain cases ordinarily held in private and (2) the monetary jurisdiction of the lower courts.

(1) Relaxation of the rules on private hearings

The changes in the Bill on private hearings will commonly be described as relaxing the in camera rule. In fact, what the Bill does is add to the list of cases which must be heard otherwise than in public but to which bona fide members of the press may attend, so long as nothing which might identify the parties is published. (There is a slight technical difference between cases heard “in camera” and those heard “otherwise than in public”, but it’s not relevant here.) The change will essentially allow for court reporters to publish accounts of family law* proceedings, including applications for domestic violence orders although judges will retain the power to exclude the press in certain circumstances. Interestingly, a judge will have the power to exclude the press from hearing evidence which may contain commercially sensitive information. This provision is likely to be relied on in many family law cases, justifiably or otherwise. The aim is to increase public confidence in the judicial system by partially removing the veil which ordinarily hangs over such cases.

It is somewhat disappointing to see that while the Bill proposes to allow court reporters to attend hearings at which an application for a domestic violence order is made, the Bill does not close off the loophole whereby breach prosecutions can be fully reported. I wrote last October:

if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.

The Department informed me that it was intended to close off the loophole in a Criminal Law (Miscellaneous Provisions) Bill but I do not see why it could not be included in the Courts Bill. I assume that breach prosecutions will be made subject to the new rules in the Courts Bill, so that the press can attend hearings and publish reports so long as they do not identify the parties. Nevertheless, it is hoped that the restriction on reports of breach prosecutions will be introduced soon.

* Family includes, in this context, cases involving civil partners and cohabitants.

(2) Increase in civil jurisdiction of the lower courts

The Bill will increase the jurisdiction of the District Court from the current €6,348.69 to €15,000. Over that amount the Circuit Court will hear cases with a value up to €75,000 (up from €38,092.14), beyond which cases will be dealt with in the High Court. This should have the effect of reducing legal costs: as a rule of thumb, the higher the court the higher the cost and by bringing more cases into the lower courts the costs of those cases will be reduced while the burden of the High Court will also be lessened.

Two things are interesting in this part of the Bill:

  1. The Circuit Court will have jurisdiction in personal injury cases only to a maximum of €60,000. The Minister’s justification is as follows: “As a further measure to deal with concerns relating to possible inflation of awards and a consequent effect on insurance costs, I am proposing to restrict the jurisdiction of the Circuit Court to €60,000 in respect of personal injury actions.” I don’t know what this means other than suggesting that the insurance industry lobbied for the lower limit.
  2. In 2002 the Government changed the law to increase the District Court jurisdiction to €20,000 and the Circuit Court to €100,000 (with no lower personal injury limit specified) (I wrote about it here). The relevant sections of the Courts and Court Officers Act 2002 were never commenced (ie. activated) on the basis that the Government wanted to monitor the impact of the Injuries Board. They are now increasing jurisdiction by only 75% of what was decided on 11 years ago, for reasons unknown.

Nevertheless, the changes are good as the existing limits of the jurisdiction of both lower courts is too low. The greatest impact may be on the District Court which, due to the historic low limit, has tended not to have a significant civil law list. That will now change.

Instagate

InstagramInstagram has courted controversy this week by announcing changes to its terms and conditions. There are clauses in Instagram’s new terms which are likely to cause them difficulty with privacy and advertising regulators but the most controversial new terms are that:

  • Instagram will have a full licence to use your photographs, including to sub-licence or transfer use of them; and
  • customers of Instagram (that’s advertisers, not you) can pay to have your name or photos (along with other information) displayed in advertising messages, without paying you or even notifying you.

Changes to intellectual property terms on free online services have long been a source of controversy, not least because when services like Instagram are involved many of the users are involved in creative industries. Even if a user is not a creative professional, the service involves the creation of intellectual property. Mess with those users’ rights at your peril.

Of course, blame for these changes is being laid firmly at the door of Facebook who famously paid through the nose to acquire Instagram. While the new terms are not surprising, given the involvement of Facebook, whoever owned Instagram was always likely to attempt such a change in order to monetise the business.

If the online reaction is anything to go by, the changes are a boon for Flickr. The death knell of that service had been sounding for some time but it, and its new app which has launched with serendipitous timing, could see a significant return of dormant users. I have noticed a surge in activity in the past few days as Instagram users have returned to Flickr and began uploading photos for the first time in months while also seeking out contacts from the Instagram universe.

But what do Flickr’s terms say?

With respect to … Content you elect to post to other publicly accessible areas of the Services, you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

The difference between this and what Instagram’s terms will say is not clear to me, apart from the fact that Instagram are more explicit in what they plan to do with your photos. Neither is it clear if a Flickr account which is set to private constitutes a “publicly accessible area of the Services”.

Strangely, this does not appear to be the situation in the US, where their local version of the Yahoo!/Flickr terms are limited and provide a licence “solely for the purpose for which such content was submitted or made available.” This limitation does not appear in the terms applicable in Ireland. So is there any difference between Instagram and Flickr?