Master of the High Court Strikes Back

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Edmund Honohan replies in today's Irish Times letters page. Funny stuff
http://www.irishtimes.com/letters/

FreudianSlippers

Good stuff from the Master!

Kosseegan

A lot of it seems to come from using precedents on word processors. Averments are left in. Most of the cases seem to be debt cases which were not litigated extensively until recent years. Some solicitors try to do their own drafting rather than employ counsel, in order to save money and end up in trouble through simple ignorance.

Robbo

Kosseegan wrote: »

A lot of it seems to come from using precedents on word processors. Averments are left in. Most of the cases seem to be debt cases which were not litigated extensively until recent years. Some solicitors try to do their own drafting rather than employ counsel, in order to save money and end up in trouble through simple ignorance.

I'd call it carelessness and Mechanised Lawyering. It's always refreshing to see the same Copypasta Particulars raised by the insurer's side in PI matters like "Was the plaintiff wearing a seatbelt?" when there wasn't a car within an asses roar of the locus. Really makes you feel that the other side aren't paying the slightest bit of attention to things.

nuac

yes the wordprocessor and photocopier have spawned a large volume of verbosity.

When adapting a precedent it is easy leave in a superflous or incorrect averment.

The spelling checked has also led to come confusion. Once another office wished to accuse us of semantics. It came across as "some antics"..

The is also the urban legend in the case of one of these modern overlong cmmercial leases that a clause prohibiting the grazing of giraffes and elephants in the car park got thru several eminent offices

dazza21ie

nuac wrote: »

The is also the urban legend in the case of one of these modern overlong cmmercial leases that a clause prohibiting the grazing of giraffes and elephants in the car park got thru several eminent offices

I must start incorporating this into my precedents, what untold damage could by done by grazing elephants, im just dreading the first negligence claim for not putting it in previous ones done!

Victor

Not finding it on that link.

http://www.irishtimes.com/newspaper/letters/2011/1125/1224308109845.html

Justice for solicitors?

Sir, – The Law Society complains (November 21st) that my comments about solicitors’ economy with the truth are unwarranted.

The following day, Tuesday, the very first case in my list, the plaintiff’s solicitor verifies on oath that there is no one living in the apartment which is to be repossessed, but counsel appears in court on behalf of an occupant who is notice party in the proceedings.

Later, there’s a case in which the belief that the defendant has no defence is averred to by the solicitor although he has received a 13-paragraph written defence which, curiously enough, sets out a defence, if true. In another case the no defence averment is made even though the one-page memorandum on which he bases his client’s claim contains two different versions of the deal and is therefore, technically, not an offer and acceptance but an offer and a counteroffer. It’s a defence.

And in the last case, No 122, a defendant’s solicitor swears he needs a court order for discovery of post-accident medical records for his medical witness when the same documents are available, for the asking and without any court order, under the Law Society’s own protocol for exchange of medical records between doctors. Wasted costs.

That was last Tuesday, but it’s the same every day.

Solicitors’ averments are prescribed by Rules of Court to enable the court to speed up the litigation when the solicitor, as officer of the court, confirms that it’s okay to do so. Solicitors should doublecheck the facts before confirming under oath. Failure to do so reveals an altogether too casual approach to the solemnity of the oath.

It’s almost as if solicitors think the legal system belongs to them, and that they can disrespect the oath without real fear of criticism or sanction. Witnesses generally may pick up on this and feel they are free to do likewise. – Yours, etc,

EDMUND HONOHAN,
Master of the High Court,
The Four Courts,
Dublin.

What is the typical means of resolving a false oath?

Can a solicitor be punished for making a false oath?

Our man in Havana

Perjury I would think.

Avatargh

This is all well and good, but a lot of the "oh wow, solicitors being exposed" stuff that's going on presumes the Master is correct. And that's far from clear. I'll take just one of the examples he refers to - that regarding The Medical Records Issue. Indeed, given that he has numbered the case, which could let a clever person identify precisely who the solicitors were, I think we should be precise here and we can examine the strength of his reasoning, which is pretty weak.

The Law Society protocol says that where doctors examine a person, the other side's doctor should usually share his notes with the other doctor to facilitate the examination. What is actually provided for is that (emphasis added):-

"Prior to examination of the Plaintiff by the Defendant’s doctor, the Plaintiff’s doctor should provide to the Defendant’s doctor a summary of the Plaintiff’s medical notes relating to the injuries sustained (see paragraph relating to discovery/disclosure of medical records). The Plaintiff’s doctor is entitled to charge a reasonable fee for providing this service."

Now that's all well and good, but when it comes to medical negligence defence, you'd be professional negligent to assume you are properly equipped with "a summary of the Plaintiff’s medical notes relating to the injuries sustained". Rather, what you want is not the summary but the records themselves. Indeed, the recommendations themselves acknowledged this and made general reference to the principles about discovery/disclosure of records (not notes, nor summaries of notes).

Remember, he criticises the solicitor (whose identity could easily be found) as "wasting costs". That seems far from self-evident and it seems far from self-evidence that one can generalise that seeking post-accident medical records is "wasting costs" based on recommendations which don't actually deal with that.

Again, it may look good in a letter to the Irish Times, but that doesn't mean its based on correct reasoning.

Avatargh

FreudianSlippers wrote: »

Good stuff from the Master!

But its not good stuff. It's not even legally correct.

drkpower

Avatargh wrote: »

The Law Society protocol says that where doctors examine a person, the other side's doctor should usually share his notes with the other doctor to facilitate the examination. What is actually provided for is that (emphasis added):-

"Prior to examination of the Plaintiff by the Defendant’s doctor, the Plaintiff’s doctor should provide to the Defendant’s doctor a summary of the Plaintiff’s medical notes relating to the injuries sustained (see paragraph relating to discovery/disclosure of medical records). The Plaintiff’s doctor is entitled to charge a reasonable fee for providing this service."

Now that's all well and good, but when it comes to medical negligence defence, you'd be professional negligent to assume you are properly equipped with "a summary of the Plaintiff’s medical notes relating to the injuries sustained". Rather, what you want is not the summary but the records themselves. Indeed, the recommendations themselves acknowledged this and made general reference to the principles about discovery/disclosure of records (not notes, nor summaries of notes).

Remember, he criticises the solicitor (whose identity could easily be found) as "wasting costs". That seems far from self-evident and it seems far from self-evidence that one can generalise that seeking post-accident medical records is "wasting costs" based on recommendations which don't actually deal with that.

Again, it may look good in a letter to the Irish Times, but that doesn't mean its based on correct reasoning.

+1000

The Supreme Court has specifically stated that a Defendant is entitled to the Plaintiff's relevant medical records at any stage of the proceedings. Now, it may be that a summary prepared by the Plaintiff's doctor is sufficient and amounts to the 'relevant' records but that is very often not the case. That is especially so in medneg cases, but may also be the case in regular PI actions, particularly where a plaintiff has complex pre-existing injuries. In such cases, a summary is rarely going to be sufficient.

The Master just shows up his own lack of understanding by writing that letter.

FreudianSlippers

Avatargh wrote: »

This is all well and good, but a lot of the "oh wow, solicitors being exposed" stuff that's going on presumes the Master is correct. And that's far from clear. I'll take just one of the examples he refers to - that regarding The Medical Records Issue. Indeed, given that he has numbered the case, which could let a clever person identify precisely who the solicitors were, I think we should be precise here and we can examine the strength of his reasoning, which is pretty weak.

The Law Society protocol says that where doctors examine a person, the other side's doctor should usually share his notes with the other doctor to facilitate the examination. What is actually provided for is that (emphasis added):-

"Prior to examination of the Plaintiff by the Defendant’s doctor, the Plaintiff’s doctor should provide to the Defendant’s doctor a summary of the Plaintiff’s medical notes relating to the injuries sustained (see paragraph relating to discovery/disclosure of medical records). The Plaintiff’s doctor is entitled to charge a reasonable fee for providing this service."

Now that's all well and good, but when it comes to medical negligence defence, you'd be professional negligent to assume you are properly equipped with "a summary of the Plaintiff’s medical notes relating to the injuries sustained". Rather, what you want is not the summary but the records themselves. Indeed, the recommendations themselves acknowledged this and made general reference to the principles about discovery/disclosure of records (not notes, nor summaries of notes).

Remember, he criticises the solicitor (whose identity could easily be found) as "wasting costs". That seems far from self-evident and it seems far from self-evidence that one can generalise that seeking post-accident medical records is "wasting costs" based on recommendations which don't actually deal with that.

Again, it may look good in a letter to the Irish Times, but that doesn't mean its based on correct reasoning.

I take your point on that specific example, but I think in general he is correct. The amount of muck that ends up on paper in the Courts is outrageous.

I had to defend a discovery motion 2 weeks ago where whoever drafted it clearly had no clue who they were for or else was utterly lazy in their copypasta. They called themselves the defendant in one sentence, the plaintiff in the next few paragraphs and then (correctly) the defendant again later.

Time and time again laziness prevails over correctly drafting.

drkpower

FreudianSlippers wrote: »

I take your point on that specific example, but I think in general he is correct.

In fairness, that was one of three points he made; and on that point he was badly wrong, so badly wrong that you wonder does he actually understand the issues vis-a-vis medical records etc.

That tends to badly affect his credibility on other issues.

FreudianSlippers

I'd agree. I think his temperament and unpredictability don't help his cause either. In a semi-related question, I thought his time was up this year as the master?

Avatargh

FreudianSlippers wrote: »

I take your point on that specific example, but I think in general he is correct. The amount of muck that ends up on paper in the Courts is outrageous.

I had to defend a discovery motion 2 weeks ago where whoever drafted it clearly had no clue who they were for or else was utterly lazy in their copypasta. They called themselves the defendant in one sentence, the plaintiff in the next few paragraphs and then (correctly) the defendant again later.

Time and time again laziness prevails over correctly drafting.

Granted, and correct. But its as old as Coke that technical points or such typos can't prejudice the result. Indeed, the particular approach to discovery in that court simply ends up costing the parties far more money in the long run. I'm not sure I'd be able to class a lot of what I see on the other side as "muck", certainly some, but I'd be somewhat fearful of falling into the trap of thinking that anyone looking for discovery which the Master says isn't allowed is an idiot. The alternative construction is just as open.

I didn't engage on the other points, but here's my two cents.

"the very first case in my list, the plaintiff’s solicitor verifies on oath that there is no one living in the apartment which is to be repossessed, but counsel appears in court on behalf of an occupant who is notice party in the proceedings."

Again, this sounds awful. However, we don't know the full facts. Certainly the bank seemed cognisant of the possibility of a third party, by reason of having same as a notice party. Now, we can assume two things. One, they didn't bother to serve them (unlikely since they attended) or two, that they served them and heard absolutely nothing from the occupiers until the day in Court. For all we know, the owner told the bank that no-one was there and consented to possession on that basis (something which I've seen happen before).

"Later, there’s a case in which the belief that the defendant has no defence is averred to by the solicitor although he has received a 13-paragraph written defence which, curiously enough, sets out a defence, if true. In another case the no defence averment is made even though the one-page memorandum on which he bases his client’s claim contains two different versions of the deal and is therefore, technically, not an offer and acceptance but an offer and a counteroffer. It’s a defence."

Right. I have, in the past, received affidavits in response to a motion for Summary Judgment which deposed to "defences", and I've been comfortable with saying "there is no defence". Why? Because sometimes what a defendant thinks is a defence, isn't. Indeed, sometimes what the Master may think is a defence may not be, and I may well be entitled to summarise the fact in my affidavit of my belief and advise that the facts deposed to by the Defendant don't constitute a defence.

It's very easy to look at this and think "oh since the Master says there is a defence, the Plaintiff was sharp in saying there wasn't one". That's fine, but it assumes that the Master is right in concluding that particular facts disclose a defence or contest. Given that a lot in law is open to one view over the other, to hold with the Master here you have to assume he has the monopoly on right answers to the exclusion of, in this case, the Plaintiff who believed, it seems, that the 13 paragraphs didn't amount to a defence.

Even if the Master is right, its not fair to then - after that conclusion is reached - in some ex post facto manner turn and label the solicitor a liar. It assumes the truth of the matter existing in some Platonic objective state which just isn't the case. The more accurate response to such a case would be that of two fairly open views and adjudicator has preferred one over the other.

Avatargh

nuac wrote: »

yes the wordprocessor and photocopier have spawned a large volume of verbosity.

When adapting a precedent it is easy leave in a superflous or incorrect averment.

The spelling checked has also led to come confusion. Once another office wished to accuse us of semantics. It came across as "some antics"..

The is also the urban legend in the case of one of these modern overlong cmmercial leases that a clause prohibiting the grazing of giraffes and elephants in the car park got thru several eminent offices

An easy point to make, but have you ever seen what passed as pleadings, say, forty years ago in (then) high value commercial cases? Perfect for the times, I assume, but it wouldn't cut it now.

And that's not a spell check issue; its dictation. The spell check would still pick up "some antics" as right. Again, its an easy point to make, but typos happen.

Re the clause; yes...again, an easy point. On the other hand, you have no idea what pressure clients may put on those firms to get things done quickly. One can turn around and say "well, you know...we should read everything carefully, but that takes time and money" and a client can say "no". I assume we've all been there.

Milk & Honey

Professionals are supposed to resist pressure from clients where such pressure might lead to the professional being compromised. Of course it happens, doctors under pressure from patients, architects under pressure from builders etc. The point is that if it happens and someone succumbs to it, the entire profession loses respect. If someone is caught they should not complain.

pauloshea2011

I fully agree with you as professionals must always rise above pressure from clients and do the right thing. The Master is also correct in his assumptions and observations. I believe the answer to this lies in making people accountable for what they swear up to and by this I mean everyone, Clients, Solicitors, Barristers and Judges.

Avatargh

pauloshea2011 wrote: »

The Master is also correct in his assumptions and observations.

Ok, pony up and explain why? Explain, maybe, how the Master is correct in his observations about discovery when they are demonstrably wrong?

Avatargh

Milk & Honey wrote: »

Professionals are supposed to resist pressure from clients where such pressure might lead to the professional being compromised. Of course it happens, doctors under pressure from patients, architects under pressure from builders etc. The point is that if it happens and someone succumbs to it, the entire profession loses respect. If someone is caught they should not complain.

Granted, but what point are you possibly making in the context of this debate? In particular, with "If someone is caught they should not complain", what possible point are you making? Who has been "caught" who is complaining? What does "caught" mean - caught doing what?

Grass between the tracks

If you saw some of the precedent orders that are given to district judges to sign you would be shocked. You get all kinds of crap getting signed as a record of the proceedings.

Example an installment order for a debt proclaiming "That the debtor did not attend court" when he clearly did and argued his case etc. Laziness on the solicitor and the judges should not be signing these excuses for documents.

Milk & Honey

Avatargh wrote: »

Granted, but what point are you possibly making in the context of this debate? In particular, with "If someone is caught they should not complain", what possible point are you making? Who has been "caught" who is complaining? What does "caught" mean - caught doing what?

Simple, pressure from clients is no excuse for sloppy work. People who take short cuts and allow erroneous material to emanate from their office should not complain if their work is held up to ridicule and scorn.

johnnyskeleton

Milk & Honey wrote: »

Avatargh wrote: »

Granted, but what point are you possibly making in the context of this debate? In particular, with "If someone is caught they should not complain", what possible point are you making? Who has been "caught" who is complaining? What does "caught" mean - caught doing what?

Simple, pressure from clients is no excuse for sloppy work. People who take short cuts and allow erroneous material to emanate from their office should not complain if their work is held up to ridicule and scorn.

Perhaps this is a symptom of a far greater malaise. I mean that it is often joked that ethical standards go out the window where money is concerned, but the cost saving can create a sense of yellow pack lawyers.

While I dontthibk the master should have extrapolated the specific to the general, I'm not sure that anyone will argue that, other than very exceptionally, a solicitor under pressure to issue hundreds of affidavits will not produce as good results as a solitor and barrister who can take their time.

I certainly think that less tolerance for sloppiness is a good thing. But it's usually not the solicitors fault but the fault of the client wanting bargain basement legal services.