Papers by Kieran Fitzpatrick
An abbreviated version of this paper was published in (Sept.2017) Village magazine here -https://... more An abbreviated version of this paper was published in (Sept.2017) Village magazine here -https://villagemagazine.ie/index.php/2017/09/dail-privilege-no-sanctions-for-abuse/
I. House rules cannot be used to dock TD’s pay or expenses, as these monies are regulated by statute passed by both Houses, and must be so regulated because of Art.15.15.
II. Any statute which seeks to dock Member’s salaries is Judicially Reviewable. However, as penalties for abuse of privilege, are not amenable to the courts, a conundrum is created whereby, a sanction needs to be reviewable, but is simultaneously not reviewable. The only way to avoid this dilemma is to not pass a statute to dock salaries for abuse of privilege.
III. The Abbeylara Conundrum - If the Dáil (or a sub-committee) were to adopt the stance of a tribunal to assess a claim of abuse of privilege, and if they find no abuse, this risks defaming the person who is the subject of the alleged inappropriate statement; this then could violate the person 's “Abbeylara” rights.
Real justice requires access to justice, which requires effective access to courts, which require... more Real justice requires access to justice, which requires effective access to courts, which requires that courts be accessible without the threat of prohibitive costs. Some 90%, or an even higher percentage, of people in Ireland have no realistic access to justice, due to the prohibitiveness of the costs associated with legal actions via the courts. The Irish system of access to justice is permeated with unfair procedures, unconstitutional laws, and conflicts of interests, which means that most court users in Ireland are vulnerable users.
BALANCING CONFLICTING CONSTITUTIONAL RIGHTS: The English rule (Loser pays rule) on legal costs does not balance two conflicting rights – (1) the property rights of winning litigants, and (2) the right of persons to have access to the courts, without being threatened by unpredictable and prohibitive legal costs. Notionally, proponents of the English rule claim that winners are entitled to be 100% vindicated, and so be in a position to cover all their legal costs. However, this is a very narrow view, which fails to assess the big-picture consequences: (a) winners are also threatened, up to the point of winning, and can be threatened as defendants, in circumstances where they have no chance of recovery of costs from penny-less plaintiffs. (b) the English rule creates all sorts of conflicts of interests and market distortions, which enormously inflate the costs payable. (c) wealthy litigants can threaten persons of lessor wealth, with adverse costs, such that the case is determined more often by issues of fear, rather than justice. (d) the state, and most government actors become unaccountable, as the decision makers are immune from costs (lumped on taxpayers, often, with little transparency), but can pursue political goals, or engage in abuse of power, with no financial downside, and can still threaten all challengers with financial ruin; this inequality of arms, means that citizens are generally unable to challenge the unconstitutional laws and conduct of government.
HENCE, THE ENGLISH RULE IS NOT COMPATIBLE WITH A REAL CONSTITUTIONAL DEMOCRACY: Costs Allocation Rules incentivise Unfair Adjudication Rules which also incentivise Inefficiencies into the system. Because the government is allowed to intimidate its challengers with unlimited adverse costs, it then wants to maximise those costs, so as to bolster its threat and avoid oversight; High Legal Costs has been the default weapon of choice for all governments since the commencement of the state; the " Big Stick " is maintained to bounce its opponents out of the ring, and this has so far been achieved with little condemnation by international institutions, which have largely failed to recognise the stealth threat that prohibitive costs represents as a threat to the rule of law. The Big Stick undemocratically deters citizens and/or NGOs from challenging the government when it passes unconstitutional laws or acts unconstitutionally – this allows the government to pander to its own electoral constituency while depriving less well represented persons access to rights protection, leading to violations of minority rights and individual rights.
Ostensibly, the special costs regime (SCR) means that a party could at least represent herself, w... more Ostensibly, the special costs regime (SCR) means that a party could at least represent herself, without being threatened with a huge adverse legal costs bill, if she failed in her legal action. However, there is a Catch 22 in the SCR.
Open court serves democracy as much as it serves justice. Open court allows voters to review the ... more Open court serves democracy as much as it serves justice. Open court allows voters to review the outcomes of current laws and to advocate to their representatives when they believe certain laws need to be reformed. This is an essential feature of a flourishing democracy.
""Although the Legal Costs Working Group's report of 2005 favoured greater transparency of legal ... more ""Although the Legal Costs Working Group's report of 2005 favoured greater transparency of legal costs, the Competition Authority report of 2006 expressed its reservations. It argued that if cost awards were published, they could become a target for lawyers in the issuance of their bills and could inflate costs. It said transparency could "facilitate collusive behaviour in a market".
http://www.highbeam.com/doc/1P2-33979447.html ""
Justice, fairness and balance are important concepts, but unless economic realities inform the pr... more Justice, fairness and balance are important concepts, but unless economic realities inform the provision of civil justice, they will remain conceptual
How assured can anyone be that a written will ultimately expresses the intention of the deceased?... more How assured can anyone be that a written will ultimately expresses the intention of the deceased? Wills may be written with legal advice on sheets of paper and stored in various locations, most commonly in solicitors' offices or storerooms.
Uploads
Papers by Kieran Fitzpatrick
I. House rules cannot be used to dock TD’s pay or expenses, as these monies are regulated by statute passed by both Houses, and must be so regulated because of Art.15.15.
II. Any statute which seeks to dock Member’s salaries is Judicially Reviewable. However, as penalties for abuse of privilege, are not amenable to the courts, a conundrum is created whereby, a sanction needs to be reviewable, but is simultaneously not reviewable. The only way to avoid this dilemma is to not pass a statute to dock salaries for abuse of privilege.
III. The Abbeylara Conundrum - If the Dáil (or a sub-committee) were to adopt the stance of a tribunal to assess a claim of abuse of privilege, and if they find no abuse, this risks defaming the person who is the subject of the alleged inappropriate statement; this then could violate the person 's “Abbeylara” rights.
BALANCING CONFLICTING CONSTITUTIONAL RIGHTS: The English rule (Loser pays rule) on legal costs does not balance two conflicting rights – (1) the property rights of winning litigants, and (2) the right of persons to have access to the courts, without being threatened by unpredictable and prohibitive legal costs. Notionally, proponents of the English rule claim that winners are entitled to be 100% vindicated, and so be in a position to cover all their legal costs. However, this is a very narrow view, which fails to assess the big-picture consequences: (a) winners are also threatened, up to the point of winning, and can be threatened as defendants, in circumstances where they have no chance of recovery of costs from penny-less plaintiffs. (b) the English rule creates all sorts of conflicts of interests and market distortions, which enormously inflate the costs payable. (c) wealthy litigants can threaten persons of lessor wealth, with adverse costs, such that the case is determined more often by issues of fear, rather than justice. (d) the state, and most government actors become unaccountable, as the decision makers are immune from costs (lumped on taxpayers, often, with little transparency), but can pursue political goals, or engage in abuse of power, with no financial downside, and can still threaten all challengers with financial ruin; this inequality of arms, means that citizens are generally unable to challenge the unconstitutional laws and conduct of government.
HENCE, THE ENGLISH RULE IS NOT COMPATIBLE WITH A REAL CONSTITUTIONAL DEMOCRACY: Costs Allocation Rules incentivise Unfair Adjudication Rules which also incentivise Inefficiencies into the system. Because the government is allowed to intimidate its challengers with unlimited adverse costs, it then wants to maximise those costs, so as to bolster its threat and avoid oversight; High Legal Costs has been the default weapon of choice for all governments since the commencement of the state; the " Big Stick " is maintained to bounce its opponents out of the ring, and this has so far been achieved with little condemnation by international institutions, which have largely failed to recognise the stealth threat that prohibitive costs represents as a threat to the rule of law. The Big Stick undemocratically deters citizens and/or NGOs from challenging the government when it passes unconstitutional laws or acts unconstitutionally – this allows the government to pander to its own electoral constituency while depriving less well represented persons access to rights protection, leading to violations of minority rights and individual rights.
http://www.highbeam.com/doc/1P2-33979447.html ""