Litigation Tactics

===============

Taxation of Costs Flynn & Halpin is one of the best legal textbooks written and every legal practitioner would benefit from the immense wealth of knowledge and insight of its authors that they generously impart. One of its tenets of wisdom is the need for a litigant to exercise self control during the currency of a court case.

Losing self control is like batting for the other side.

The strategy of “victim blaming” can be a risky strategy for a defendant to deploy in that it may alienate the Judge. This will be known to a defendant who will attempt to counteract or mitigate this risk by using stratagems to protray the plaintiff in a negative light or “to get a rise out of you so show them that they have no effect on you.”

There is an excellent non legal article worth reading to give some tools to a plaintiff being faced with this strategy which can seem relentless particularly when the litigation process can last over a period of many years. Ref: https://www.wikihow.com/Deal-With-Impossible-People

—

The High Court of Ireland has recognised that litigation tactics can manifest in “an ever present tactical banality combined with strategic commitment to abuse processes of court as much as possible” (ref H v H)

Access to Justice is the main casualty of litigation tactics. It is a feature of human nature that only when a person is impacted by something do they start to care about it. Litigation tactics have at their core the sole function of disabling access to justice through oppression etc.

Litigation tactics come at a price to parties that fall prey to them as recognised by the late Supreme Court of Ireland Justice Séamus Henchy (1917 –2009) in one of his Supreme Court judgments where the Supreme Court opted to assess damages themselves rather than order a new trial stating:

“Now, nearly eight years after her accident, her case has come an appeal to this Court .    It is clear that her recovery — and her health generally — has been adversely affected by the fact that such a long period of her life has been lived under a cloud of litigation.”

In Keaney v Ireland, Judge O’Leary (ECtHR) pointed out that the Court’s decision in McFarlane may have created the risk of a “vicious cycle”, having regard to the dependence of common law systems on the development of the law through litigation. 

If access to Justice is disabled then given “the dependence of common law systems – such as Ireland – on the development of the law through litigation” the common law (essentially judge made law) is not allowed develop to keep up with an evolving society or international trends and people accessing the Irish Courts may find themselves with no useful guidance/precedence or subject to archaic cases dating back to the 19th century and beyond.  The criminal law is moving away from reliance on “subjective beliefs” yet the civil caselaw to date has not followed this trend.

===================

One of the downsides of a litigation strategy not to speak or engage with the other party constructively to see whether a matter can be compromised is the failure then to resolve the dispute at a fraction of the cost and many years previous to the outcome of any trial or hearing. No matter how wealthy a litigant is there are few that want to squander money needlessly.

It is well settled law that a bare assertion by a legal representative of prejudice or reputational damage to a corporation amounts to mere “hired gun” rhetoric where no evidence is available or forthcoming to substantiate it.

===

The High Court of Ireland has stated in previous decisions that the Court would “discourage ‘swamping’, as when ‘a haystack of papers’ are listed in such a way as to hide the ‘needle’, or vital document of critical importance. “

Swamping may also be used by an unprincipled party to promulgate two opposing facts seeking to rely on the incorrect “fact” that they would prefer was the actual evidence (and not the other actual true fact tucked away in the haystack) in the expectation the opponent or the Court will not spot this “anomaly “. Should it be spotted the party swamping then attempts to straddle their two horses running in opposite directions to conceal their true intentions which was to mislead the Court and ultimately prevail.

—

Pleadings can also form part of the “swamping” strategy and parties should be vigilant when faced with applications to “amend” pleadings to look out for not only what is being added to the pleadings but also what is being removed.

Order 19 Rule 3 of of the Rules of the Superior Courts 1986 as amended states

” Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively.  Dates, sums, and numbers shall be expressed in figures and not in words.  Signature of counsel shall not be necessary; but where pleadings have been settled by counsel they shall be signed by him; and if not so settled they shall be signed by the solicitor, or by the party if he sues or defends in person. (emphasis added)”

Given “emotion” is one of the major drivers as to whether proceedings will ultimately “go to trial” an opponent (noting a corporation can swear affidavits of verification based on hearsay so this strategy is easier for a corporation to deploy with what they may perceive as immunity from sanction) may decide to insert selectively some of their “evidence” into their pleadings designed to incite “emotion” in the other party. Parties should be vigilant to this litigation strategy (which is best ignored pre-trial and easier to ignore when a party has an awareness of its purpose) in a legal system which uses “costs” as one of its main tools to control its processes. The High Court of Ireland has held that “

The plaintiffs’ counsel has argued that this did not involve concealing information from the third defendant, rather it was a case of not disclosing that information.  I do not accept this characterisation. A decision not to disclose relevant information which the parties know to be material to the third party’s willingness to be involved is tantamount to concealing that information from him. …

Although counsel for the plaintiffs contended that there was a difference between the non-disclosure of their participation to and concealing their participation from the third defendant, in my view, that distinction is without substance.”

======

COURT TRANSCRIPTS

Transcripts by private stenographers typically came into being because one party to a dispute wanted to have it and may of course “facially” appear to be uncontroverted evidence and relied on by the party in possession of same to prevail in a dispute as to what a court decided.

An unofficial transcript may be 1. inaccurate/incomplete (~not every word may be captured) 2. taken out of context where only extracts relied upon 3. interpreted by a party in a way favourable to that partys’ vested interests. In High Court in Boland v. Valuation Tribunal [2017] IEHC 660.  Murphy J. stated as follows.

‘[…] the Court is satisfied that the judgment of a statutory tribunal such as this, which is required by law to give reasons for its determination, must be a judgment which stands on its own two feet.  Reliance cannot be placed on a transcript of the evidence as interpreted by the notice party to give it sense and meaning.  This is particularly so where the notice party, as in this case, is the beneficiary of the tribunal’s determination.  The notice party has an interest in having the decision of the tribunal upheld and as such cannot truly be described as a legitimus contradictor.  The notice party is not competent to tell the Court how the tribunal arrived at its decision, only the tribunal can do that in a properly written judgment. …’

Mr Justice Denis McDonald in The Marine Survey Office & ors v D’Amico Societa Di Navigazione t/a MV Cielo Di Monaco [2018] IEHC 674 (30 November 2018) stated as follows at para 44(d) :

“it is a well-established principle of EU law that national law must ensure the full effectiveness of EU law and that domestic procedural law should not make it impossible or excessively difficult to enforce rights derived from EU law. (See for example, Joined Cases C-6/90 and C-9/90 Francovich v. Italian Republic at para. 32). Accordingly, Irish procedural law could not render ineffective the right of appeal which the EU legislature clearly intended should be available to the owners and operators of a ship.”

——————-

Mr Justice Maurice Collins  in the Kellett v RCL Cruises Ltd & Ors (Unapproved) [2020] IECA 138_3 (21 May 2020) stated as follows:

“4. Before the High Court and this Court on appeal there was significant discussion of Council Directive 90/314/EEC on package travel, package holidays and package tours (hereafter the “Package Holiday Directive” or “the Directive”) and the provisions of the Package Holidays and Travel Trade Act 1995 (“the 1995 Act”) that give effect to the Directive in Irish law, as well as of a large number of authorities bearing on their proper interpretation and application.[1]

5.                  While not strictly necessary to the disposition of this appeal, I think it is appropriate to make some observations about the Directive and the caselaw opened to the Court.

6.                  The Directive was adopted on the basis of Article 100a of the EEC Treaty. Article 100a (now Article 114 TFEU) is concerned with the establishment and functioning of the single market and Article 100a, paragraph 3 requires that harmonisation measures in respect of consumer protection “take as a base a high level of protection”, a point emphasised by Advocate General Tizzano in his opinion in Case C-168/00, Leitner (§26). On that basis, as well as the text and aims of the Directive, he considered that, in the event of doubt, the provisions of the Directive “must be interpreted in the manner most favourable to the person whom they are intended to protect, namely the consumer of the tourism services” (ibid). The Court in Leitner also stressed that “the Directive, and in particular Article 5 thereof, is designed to offer protection to consumers” (§22).”

Court of Justice of the EU (CJEU) in C-641/18  Rina (Judicial cooperation in civil matters – Concepts of ‘civil and commercial matters’ and ‘administrative matters’ – Judgment) [2020] EUECJ C-641/18 (07 May 2020) ref: www.bailii.org/eu/cases/EUECJ/2020/C64118.html stated as follows:

“para 55. However, a national court implementing EU law in applying Regulation No 44/2001 must comply with the requirements flowing from Article 47 of the Charter (judgment of 25 May 2016, Meroni, C‑559/14, EU:C:2016:349, paragraph 44). Consequently, in the present case, the referring court must satisfy itself that, if it upheld the plea relating to immunity from jurisdiction, LG and Others would not be deprived of their right of access to the courts, which is one of the elements of the right to effective judicial protection in Article 47 of the Charter. “

Scaife -v- Falcon Leisure Group [2007] IESC 57 (04 December 2007)
http://www.bailii.org/ie/cases/IESC/2007/S57.html

Supreme Court of Ireland Justice Fidelma Macken (who served at CJEU)

“Apart from such excusing circumstances, it seems to me that the organiser remains at all times liable to the consumer for the wrongful acts in question. If it be the case that the organiser wishes to invoke the defence available in subsection 20(2)(c)(ii) of the Act of 1995, it is for him to establish that there was no such fault either on his own part or on the part of a supplier of the service which he has engaged, once a failure to perform is established by the consumer.”

First, it is appropriate to have regard to the wording of the legislation. On a plain reading of this, it seems to me that the correct meaning to be attached to the combination of subsections 20(1) and (2) of the Act of 1995 is that when contractual obligations are assumed by an organiser – the appellant in this case – as part of a “package holiday” contract entered into with a consumer, such as the respondent in the present case, those obligations to the consumer remain the organiser’s obligations, and do not become the independent obligations of the service supplier, such as the hotel in Spain, to the consumer. The Section speaks of (a) the obligations under the contract; (b) irrespective of whether those obligations i.e. the organiser’s obligations, are to be performed by the organiser himself, or (whether such obligations) are to be performed by other suppliers of services; and (c) a right of action over is maintained by the organiser against such other supplier(s) for the latter’s failure to perform the organiser’s contracted for obligations. Thus, when the consumer – the respondent in this appeal – enters into the agreement, it may well be that some of the organiser’s contractual obligations will be performed by other persons, such as hotel proprietors, even in another Member State. That, however, does not change the relationship between the organiser and the consumer, who frequently will not even know the name of the supplier of the services not being performed by the organiser himself. “

Judgment of 15 March 2018, North East Pylon Pressure Campaign and Sheehy (C‑470/16, EU:C:2018:185, paragraphs 55 to 58).

In the absence of EU legislation on the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, it is for the domestic legal system of each Member State to lay down those rules and to ensure that those rights are effectively protected in each case (see, inter alia, by analogy, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 47).

55      On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (see, inter alia, judgment of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraph 46).

56      Therefore, if the effective protection of EU environmental law, in this case Directive 2011/92 and Regulation No 347/2013, is not to be undermined, it is inconceivable that Article 9(3) and (4) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law (see, by analogy, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 49).

57      Consequently, where the application of national environmental law — particularly in the implementation of a project of common interest, within the meaning of Regulation No 347/2013 — is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, so that judicial procedures are not prohibitively expensive.

58      It follows from the foregoing that the answer to the fourth and fifth questions is that Article 9(3) and (4) of the Aarhus Convention must be interpreted as meaning that, in order to ensure effective judicial protection in the fields covered by EU environmental law, the requirement that certain judicial procedures not be prohibitively expensive applies to the part of a challenge that would not be covered by that requirement, as it results, under Directive 2011/92, from the answer given to the second question, in so far as the applicant seeks, by that challenge, to ensure that national environmental law is complied with. Those provisions do not have direct effect, but it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with them.

————————————–

Klohn v An Bord Pleanala 2021

OPINION OF ADVOCATE GENERAL BOBEK delivered on 5 June 2018

“90.      In addition, I disagree with the Board that public and private litigants are in the same position as regards expectations on costs. Whilst a Member State will obviously consider the costs and benefits of defending and continuing to defend a case, there is no risk that an individual court dispute will lead to its bankruptcy. That is not the case for the majority of private litigants. “

Supreme Court of Ireland Justice Frank Clarke

http://www.bailii.org/ie/cases/IESC/2021/2021IESC51.html referred to

Impresa Pizzarotti v. Comune di Bari (case C-213/13) ( ECLI:EU:C:2014:2067) CJEU said at para. 58 of its judgment:

“…(A)ttention should be drawn to the importance, both in the legal order of          the European Union and in national legal systems, of the principle of res judicata.  In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called in to question”.  

3.3              It is also clear from the judgment of the CJEU in that case that the fundamental principles of the law of the European Union do not require a matter which has become res judicata to be reopened by a national court even where it is clear that European Union law was misapplied or wrongly interpreted in the case in question. 

Royal Caribbean Cruises motioned the High Court of Ireland on 3 separate occasions to disable the Jury Trial noting their THIRD motion was after Mr. Justice Denis McDonald had already made a Court Order on 28/4/2018 (that was not appealed) that the Plaintiff was entitled to a Jury trial and the matter was RES JUDICATA.

———————————————————————

At what point are EU High Levels of Consumer Protection and Human Rights, Fair trial Rights and EU Charter Human Rights, Unfair Terms in Consumer Contracts, Oversight over Court domestic procedures engaged in an EU Package Holiday Case in the High Court of Ireland?

After the first Court Order?

After the Second Court Order?

After the Third Court Order?

After the Fourth Court Order?

After the Fifth Court Order?

After the Sixth Court Order?

After the Seventh Court Order?

After the Eighth Court Order?

After the Ninth Court Order?

After the Tenth Court Order?

After the Eleventh Court Order?

After the Twelfth Court Order?

After the Thirtheenth Court Order?

After the Fourteenth Court Order?

After the Fifteenth Court Order?

After the Sixteenth Court Order?

ref: https://www.bailii.org/ie/cases/IEHC/2021/2021IEHC247.html

Still no trial date on the 6th anniversary of a CRUISE holiday with USA Royal Caribbean Cruises booked through Trailfinders Ireland Limited and it must be concluded EU Package Holiday Consumer Protection Legislation is of little use to a consumer battling 2 powerful wealthy corporations now represented by the same legal team comprising of some FOUR senior counsels having taken over from the previous Irish based defence legal firm of DAC BEACHCROFT who took over from Cork based TIMOTHY J. HEGARTY & SON for Trailfinders Ireland Limited (each of these 2 firms having instructed their own junior counsel and senior counsel) who had the opportunity of a TRIAL in 2017 with the EU consumer plaintiff having set proceedings down for trial in APRIL 2017 but Royal Caribbean Cruises and Trailfinders Ireland Limited successfully motioned the High Court of Ireland (His Honourable Justice McDonald who put no case management timetable in place for the newly ordered HYBRID trial) to have the notice of trial struck out and then went on to coerce and subject a consumer to years of stress, anxiety, burdens and hardships now the subject matter of FIVE years of High Court of Ireland Litigation with SIXTEEN Court Orders and the following EIGHTY + pleadings and the following Court Listings. His Honourable Justice BARTON ruled in March 2021 the travel agent and USA cruiseline could unilaterally post ipso facto change their own T&Cs over four years later specifying Irish Law to apply Bahamian Law if they wanted with the High Court of Ireland giving no consideration to the costs burdens running to tens of thousands of Euros this placed on an EU consumer.

It is also unclear why the agent – RCL Cruises Ltd. (a company incorporated in England) – for the cruiseline, Royal Caribbean Cruises Limited has been identified as the third party rather than the cruiseline itself. 

11/01/20210AffidavitsDeponent HELEN NOBLE
08/01/20210Affidavit of Service
05/01/20210AffidavitsDeponent HELEN NOBLE
23/12/20200AffidavitsDeponent CAROLINE FANNING
23/12/20200Notice of Court MotionLast Return Date 18/01/2021 ADVANCE WARNING LIST
26/11/20200AffidavitsDeponent GREGORY TOAL
08/09/20200AffidavitsDeponent CAROLINE FANNING
31/08/20200AffidavitsDeponent CAROLINE FANNING
29/07/20200Notice appointment solicitorSolicitor CONWAYS SOLICITORS (SOUTH TERRACE)
27/07/20200Affidavit of Service
23/07/20200AffidavitsDeponent HELEN NOBLE
23/07/20200Notice of Court MotionLast Return Date 07/08/2020 ADVANCE WARNING LIST
20/07/20200AffidavitsDeponent HELEN NOBLE
30/06/20200AffidavitsDeponent CAROLINE FANNING
26/06/20200AffidavitsDeponent HELEN NOBLE
22/05/20200AffidavitsDeponent CAROLINE FANNING
22/05/20200Notice of Court MotionLast Return Date 08/09/2020 ADVANCE WARNING LIST
14/05/20200AffidavitsDeponent CAROLINE FANNING
13/05/20200Notice to Cross Examine
12/05/20200AffidavitsDeponent CAROLINE FANNING
10/03/20200AffidavitsDeponent CAROLINE FANNING
02/03/20200AffidavitsDeponent CAROLINE FANNING
20/02/20200Notice of Court MotionLast Return Date 21/07/2020 ADVANCE WARNING LIST
20/02/20200AffidavitsDeponent HELEN NOBLE
12/02/20200AffidavitsDeponent CAROLINE FANNING
16/01/20200AffidavitsDeponent CAROLINE FANNING
29/11/20190AffidavitsDeponent CAROLINE FANNING
28/11/20190AffidavitsDeponent HELEN NOBLE
28/11/20190Notice of Court MotionLast Return Date 08/03/2021 ADVANCE WARNING LIST
27/11/20190AffidavitsDeponent HEATHER WARD
12/11/20190AffidavitsDeponent HEATHER WARD
08/11/20190AffidavitsDeponent CAROLINE FANNING
16/10/20190AffidavitsDeponent CAROLINE FANNING
16/10/20190Master’s Motion
15/10/20190Notices to Produce
15/10/20190AffidavitsDeponent HELEN NOBLE
11/10/20190AffidavitsDeponent CAROLINE FANNING
10/10/20190AffidavitsDeponent CAROLINE FANNING
07/10/20190Notice to admit facts
26/09/20190AffidavitsDeponent CAROLINE FANNING
19/09/20190Notice to admit facts
18/09/20190Notice to admit facts
01/08/20190AffidavitsDeponent HELEN NOBLE
24/07/20190AffidavitsDeponent CAROLINE FANNING
24/07/20190Notice of Court MotionLast Return Date 04/11/2019 Common Law
23/07/20190AffidavitsDeponent HEATHER WARD
23/07/20190AffidavitsDeponent HEATHER WARD
09/07/20190AffidavitsDeponent HELEN NOBLE
09/07/20190Notice of Court MotionLast Return Date 15/11/2019 ADVANCE WARNING LIST
04/07/20190Notice of Discharge
03/05/20190AffidavitsDeponent CAROLINE FANNING
15/03/20190Notice of Change of SolicitorSolicitor NOBLE SHIPPING LAW
10/01/2019J 2380 DNSETTING DOWN FOR TRIAL
23/10/20180Notice of Change of SolicitorSolicitor DAC BEACHCROFT DUBLIN [FLEMING COURT]
14/02/20180AffidavitsDeponent CAROLINE FANNING
01/02/20180Notice of Change of SolicitorSolicitor MICHAEL J. KENNEDY & CO.
12/01/20180Notice of Court MotionLast Return Date 24/04/2018 NON JURY
12/01/20180AffidavitsDeponent HELEN NOBLE
12/01/20180AffidavitsDeponent PETER KIELY
12/01/20180Notice of Court MotionLast Return Date 24/04/2018 NON JURY
18/09/20170AffidavitsDeponent CAROLINE FANNING
18/07/20170AffidavitsDeponent HAZEL HATTON
18/07/20170Notice of Court MotionLast Return Date 18/12/2017 Common Law
02/05/2017J 2288 DNSETTING DOWN FOR TRIAL
21/04/20170Memo Entry of AppearanceSolicitor NOBLE LAW SOLICITORS
03/04/20170Third Party Notice
21/03/20170AffidavitsDeponent CAROLINE FANNING
20/02/20170AffidavitsDeponent PETER KIELY
20/02/20170Notice of Court MotionLast Return Date 20/03/2017 Common Law
13/12/20160AffidavitsDeponent CAROLINE FANNING
17/11/20160Affidavit of Service
21/10/20160AffidavitsDeponent CAROLINE FANNING
21/10/20160Notice of Court MotionLast Return Date 21/11/2016 Common Law
02/09/20160AffidavitsDeponent CAROLINE FANNING
24/08/20160Memo Entry of AppearanceSolicitor TIMOTHY J. HEGARTY & SON
COURT
LISTINGS

21/11/2016		Common Law / MOTION0104Order
20/03/2017Common Law / MOTION0102Order
24/04/2018Jury – Master List0019SNT
16/10/2017Common Law / MOTION0130Adjourned – no details available
18/12/2017Common Law / MOTION0134Order
19/02/2018Common Law / MOTION0117TRA
19/02/2018Common Law / MOTION0118Transferred
22/02/2018NON JURY / FOR MENTION0022Adjourned – no details available
22/02/2018NON JURY / FOR MENTION0023Adjourned – no details available
24/04/2018NON JURY / FOR HEARING0003TRA
24/04/2018NON JURY / FOR HEARING0004TRA
24/04/2018ADV MR JUSTICE MC DONALD0060Order
24/04/2018ADV MR JUSTICE MC DONALD0061Order
Jury – Master List0010XX2/3dys
04/11/2019Common Law / MOTIONS FOR SITTING OF COURT0016TRA
04/11/2019Common Law / MOTIONS FOR SITTING OF COURT0015Order
13/11/2019Master’s List / Notice of motion0027Adjourned – no details available
14/11/2019ADV MR JUSTICE BARTON0023Adjourned – no details available
04/12/2019Master’s List / Notice of motion0012Order
15/11/2019ADV MR JUSTICE BARTON0001Order
06/12/2019ADV MR JUSTICE BARTON0008Adjourned – no details available
03/02/2020ADV MR JUSTICE BARTON0006AHFH
10/02/2020ADV MR JUSTICE BARTON0002Adjourned – no details available
16/03/2020ADV MR JUSTICE BARTON0014Adjourned – no details available
09/03/2020ADV MR JUSTICE BARTON0006Adjourned – no details availableday 2
16/03/2020ADV MR JUSTICE BARTON0015Adjourned – no details available
18/05/2020VACATION SITTING / EX PARTES0010Order
29/06/2020NON JURY / FOR MENTION0006TRA
03/07/2020ADV MR JUSTICE BARTON0002Adjourned – no details available
03/07/2020ADV MR JUSTICE BARTON0003Adjourned – no details available
03/07/2020ADV MR JUSTICE BARTON0004Adjourned
21/07/2020ADV MR JUSTICE BARTON0005Order
21/07/2020ADV MR JUSTICE BARTON0006RESordlaw
21/07/2020ADV MR JUSTICE BARTON0007Adjourned – no details available
14/07/2020NON JURY / FOR MENTION0019OrderEXP
08/09/2020ADV MR JUSTICE BARTON0004Orderfm
08/03/2021RESERVED JUDGMENT / MR JUSTICE BARTON0023JDL
20/10/2020ADV MR JUSTICE BARTON0004Adjourned – no details availables46.4
06/08/2020ADV MR JUSTICE BARTON0002Adjourned – no details available
07/08/2020ADV MR JUSTICE BARTON0000Order
18/12/2020ADV MR JUSTICE BARTON0005OrderFM 15m
12/01/2021ADV MR JUSTICE BARTON0015AdjournedREMOTE
14/01/2021ADV MR JUSTICE BARTON0003Adjourned – no details availableremote
18/01/2021ADV MR JUSTICE BARTON0010OrderVMR
08/03/2021ADV MR JUSTICE BARTON0006JDL
08/03/2021ADV MR JUSTICE BARTON0007Order

Preamble to the USA Declaration of Independence 4th July 1776

” We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” “

——————

SUPREME COURT OF IRELAND in Shortt v The Commissioner for An Garda Siochana the late highly esteemed Supreme Court Justice Adrian Hardiman RIP stated :-

“If this case and others like it teach anything, it is that it does no favour to an institution like the gardaí to accord their members a special level of presumptive credence. On the contrary, this attitude offers a temptation to unscrupulous gardaí who may assume that, most of the time, the public, the media, judges and juries will accord credence to the garda account, even if it is in certain ways rather improbable. This case plainly demonstrates that some gardaí will lie, simply to benefit their own careers, and lie again, even on oath, to avoid the consequences of having told the first set of lies, and so on. It also reveals that the prospect of this being detected and acknowledged by the gardaí themselves is restricted by an attitude which dictates that “… we don’t name the names… we are not going to be hanging our people…”, in the words of a former G.R.A. representative in Donegal, cited above. Moreover, one must recall that a conspiracy of the sort featured in this case may develop into something much larger than originally intended. It is instructive to consider the attitude of the corrupt Detective Garda, McMahon: he fully expected the whole thing to end in the District Court, with a plea of guilty to one charge and a trivial penalty. He was astonished, even incredulous, that Mr. Shortt and his then solicitor would not play ball with this arrangement simply on the basis that he was not actually guilty. No doubt sincerely, in his own mind, he blamed Mr. Shortt’s original lawyers for all that happened afterwards. He cheerfully participated in the conspiracy to beef up the evidence, orchestrated by his superior, and cheerfully perjured himself in the Circuit Court. But he was horrified at the three year sentence whose injustice he seemed to have recognised though he spoke about it only when drunk. This led him only to slobber drunkenly about what he had done, to his wife and to Adrienne McGlinchy. In other words, Noel McMahon emerges as someone whose life experience has led him into a total disregard for truth, a ready willingness to perjure himself, and an expectation that others, even some amongst his superiors in An Garda Síochána, are just as unscrupulous as he.
—————————-

Common Law legal systems depend on honesty and transparency and where these principles are not valued or respected Justice can be perverted./

HIGH COURT OF IRELAND in medical negligence case where discovered records found to have been altered and this fact revealed one week pre-trial called “reprehensible” by now retired highly respected Mr Justice Michael Peart

“I have absolutely no doubt that Mr Ryan acted quite improperly when he altered this clinical record. He has accepted this and has apologised, and has given his explanation as to his thinking at the time of the alteration. Given Mr Ryan’s evidence in court that he has no recollection of the consultation of the 12th July 2001, I cannot however accept his evidence that he was completely sure that, in altering that record, he was only completing the record so that it reflected the true situation. I believe on the balance of probabilities that on receipt of the solicitor’s letter in December 2002 he looked at the clinical notes and in some sense of panic which must have impaired his judgment as to how to react or act, he inserted a note which he felt would assist him in his defence of what was obviously going be a claim against him. He could not have been so sure as to the fact of having told the plaintiff to have another test done, as to enable him to make that alteration without some risk of creating a false or misleading record. He has said himself that it was only in the few short weeks before this case commenced that when he sat down one weekend and thought about this case and the evidence he could give, and after he had consulted with a professional colleague in Cork, that he came to what he called the realisation that there was a possibility, however unlikely it appeared to him at that time, that he might not have actually asked the plaintiff to have had the test done in six weeks time, and that he might not in fact have made arrangements that the test be done, as indicated in the letter to Mr Motherway. It was then that he realised that the record which he had altered could not be allowed to proceed into the court, and that he, in his own words, “came forward and informed my legal team and asked for advice.” He also stated that he never realised that he had the option open to him of directing his legal team to disclose the fact of the alteration of the document to the plaintiff’s legal team.

There is also the fact that in a Notice to Admit Facts the plaintiff was asked to admit the fact that on the 12th July 2001 he had been asked to have the test carried out.

In relation to this issue, I believe that Mr Ryan engaged in an effort to conceal the fact that he had no clinical note to support his contention that he requested the plaintiff to have the second test carried out. I believe this supports significantly the plaintiff’s testimony that he was never asked to have such a test carried out. I also believe that Mr Ryan ought to have ensured, at least by the commencement of this hearing, that the plaintiff’s legal team were made aware of the fact that the entry for the 12th July 2001 had been inserted in December 2002. There was a heavy responsibility on him to ensure that this was done, and it is in my view reprehensible that it was not done, as it could have worked a serious mischief, leading to possible injustice to the plaintiff, depending on the significance ultimately of that entry.“

-=——–

No human being should have to endure malicious privileged poisonous pleadings for six years of their life.

HIGH COURT OF IRELAND IN Teva (Canada) Ltd v Panalpina World Transport (Ireland) Ltd (Approved) [2021] IEHC 304 (30 April 2021) :-

” Only a careful reading of the affidavit disclosed that in fact, that was not the correct position and that the plaintiff was now accepting it had obtained the waybill on 4 December 2017. As will be seen below, the date upon which the plaintiff received the entirety of the waybill is an important date in deciding the applicable contractual terms. Therefore, it was incumbent ….to ensure that her affidavit was clear in this regard and to explain that the plaintiff was now resiling from its original position that it only received the reverse side of the waybill for the first time in May 2019 and identifying why the error occurred. Unfortunately, that was not the position adopted.

This error was repeated in the legal submissions filed. At paragraph 35 it is stated that the first time “the relevant page was produced” was after the proceedings had issued. Reference is made to the affidavit At paragraph 39 the inaccuracy is repeated again where it is stated that “the relevant page was only produced after these proceedings had issued and on Defendant evidence was uploaded after ship sailed” …. senior counsel has a particular obligation to the court to ensure that the material placed before the court is clear and accurate and that counsel are properly briefed.

A notable feature of this case ..no affidavit sworn by any representative of the plaintiff… where there is a conflict of factual issues related to substantive issues in the proceedings, as opposed to procedural issues arising in the litigation, it is important that the person closest to the facts swears the affidavit. That will not usually be the solicitor representing a party. Otherwise, issues of hearsay are likely to arise. Moreover, if a factual conflict arises on the affidavits, and cross examination ensues, the proximity of the person to the relevant facts will be highly relevant when deciding whose evidence to prefer. No explanation is given here as to why a person from the plaintiff company with direct knowledge could not swear an affidavit. As will be seen, the indirect nature of the evidence provided in this case gave rise to problems.
 

…crucial evidence is likely to be in respect of the storage of the goods and the temperature at which they were stored, it is difficult to see the link with Ireland. Nothing that has been adduced persuades me that Ireland has a close connection to the dispute. “

ARTICLE 34 CONSTITUTION OF IRELAND 1937 AS AMENDED
1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in
such special and limited cases as may be prescribed by law, shall be
administered in public.

2 The Courts shall comprise:
i Courts of First Instance;
ii a Court of Appeal; and
iii a Court of Final Appeal.
3 1° The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.
2° Save as otherwise provided by this Article, the jurisdiction of the
High Court shall extend to the question of the validity of any law
having regard to the provisions of this Constitution, and no such
question shall be raised (whether by pleading, argument or
otherwise) in any Court established under this or any other Article of this Constitution other than the High Court, the Court of Appeal or the Supreme Court.
3° No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.
4° The Courts of First Instance shall also include Courts of local and
limited jurisdiction with a right of appeal as determined by law.
4 1° The Court of Appeal shall–
i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other
courts as may be prescribed by law.
2° No law shall be enacted excepting from the appellate jurisdiction of the Court of Appeal cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.
3° The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.
5 1° The Court of Final Appeal shall be called the Supreme Court.
2° The president of the Supreme Court shall be called the
Chief Justice.
3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that-
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.
4° Notwithstanding section 4.1° hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors:
i the decision involves a matter of general public importance;
ii the interests of justice.
5° No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.
6° The decision of the Supreme Court shall in all cases be final and conclusive.
6 1° Every person appointed a judge under this Constitution shall make and subscribe the following declaration:
“In the presence of Almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.”
2° This declaration shall be made and subscribed by the Chief Justice in the presence of the President, and by each of the other judges of the Supreme Court, the judges of the Court of Appeal, the judges of the High Court and the judges of every other Court in the presence of the Chief Justice or the senior available judge of the Supreme Court in open court.
3° The declaration shall be made and subscribed by every judge before entering upon his duties as such judge, and in any case not later than ten days after the date of his appointment or such later date as may be determined by the President.
4° Any judge who declines or neglects to make such declaration as aforesaid shall be deemed to have vacated his office.

High Court of Ireland allocated 3 days for hearing of Eu consumer package holiday case on 15/11/2019 scheduled to start 30/6/2020 until it was vacated by Courts Service if Ireland due to COVID 19
Before these 3 dates were vacated Royal Caribbean Cruises Limited “booking agent” RCL Cruises Limited emailed a High Court of Ireland Judge on 8 May 2020 as follows:-

“We would also note that it seems very unlikely that this matter could be heard in 3 days given the number of witnesses both parties intend calling and in light of recent experience of the time spent on motions. Any covid-19 distancing restrictions also that might apply could also potentially render managing the proceedings over a three day period far more complex.

In light of the foregoing we do not consider our client’s two motions are urgent requiring special facilitation of the court in the current restrictive environment. We will of course however be fully guided by the trial judge and court services in this regard. We are also available for any case management conference Mr. Justice Barton may wish to convene.

No response was ever made by the High Court of Ireland to this emailed request yet on 03/06/2021 Royal Caribbean Cruises Limited’s UK “booking agent” RCL Cruises Limited tells different High Court of Ireland Judge at callover ON 03/06/2021 7 days were allocated for this trial yet there was never any mention of a 7 day trial. In fact 3 DAYS had been allocated not 7 DAYS.

Enough is enough.
———————————

Royal Caribbean Cruises Limited told High Court of Ireland they withdrew third relief of their choice of law motion on 10/2/2020.
Plaintiff said it was withdrawn by them on 09/3/2020.
High Court of Ireland Judge said his Court notes confirmed it was withdrawn by RCCL on 09/03/2020.

====


Fanning & Associates, Solicitors, 49 Foxrock Avenue, Foxrock, Dublin 18, Ireland
Tel/Fax:+353 (0)1 2899812 E-mail: info@fanningsolicitors.ie

Designed by Martin's Media.