LegalEagleStar

… a kind of Legal Column

Archive for April 2011

Family Law: Mediation v. Court

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Divorce Cakes a_005

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Some time ago on Twitter I became engaged with a Follower on the subject of the role of mediation in Family Law Cases.  Interesting exchanges but it became clear that my views were opposite to my friends. I hold the view that a Court is the correct Forum while he felt that Mediation was the way to go. Then along came an English Solicitor who stated that over 90% of his cases had been disposed of through mediation and that he felt it was in his clients best interests as it was what the client wanted. I proffered the view that it was the role, in fact the duty of the Solicitor to advise his/her client of the way forward to resolving their case not let the client decide what they thought was best. It was my duty, under law, to advise the client on all options open to them, including Mediation, but ultimately, after taking full and detailed instructions, to advise the client what I though was best for them in their particular case. It was then up to the client to decide whether to follow my advice or go elsewhere and instruct someone who they felt was best suited for them. The argument made by my English colleague was that Mediation was the best option because it was cheaper. I felt that sometimes the cheaper option could be the most expensive one in the long run. Cost is indeed a factor but in my opinion not the deciding factor. Some people feel that a lawyer is not needed at all. That they can do a better job without a money leaching lawyer. This is not a view I take as Law Without a Lawyer is never, in my experience, a good idea.

Some Years back I attended a Family Law Seminar and one of the speakers was a lady who, if on the opposing side, necessitated on every occasion running the matter into Court. She was, to put it mildly, difficult. It was never easy to settle a case with her. She always took the view, without exception, that her opposite number was one to be fought with to the nth. degree and never, in my view, wished to enter into talks to settle even the most minor matter. So, you can imagine my interest in her lecture on Mediation. She painted the picture of a ‘Happy Divorce’. One where flowers were arranged in the room to create the right atmosphere. After the lecture finished I was still unconvinced and remain so to this day. Maybe it was because it was her giving the lecture. Maybe that’s unfair but I found her talk somewhat unconvincing and I thought insincere.

My views are summarised in the following which appears on my website… ”Remember your wedding? The preparation, the big day, and the cost? Well prepare yourself for the same trauma except this time it is not a happy occasion. Nevertheless with sensitive handling and the proper legal team behind you, you can be assured of a satisfactory outcome. Negotiation and mediation often facilitate resolution, however, we will pursue litigation to protect our clients best interests. Don’t be bullied or face this trauma alone. You owe it to yourself and your family to do it right.”

I know this is a contentious issue and one where people have formed their opinions based on their own experiences. Needless to say if you have had a bad experience with a lawyer of course this will colour your view and this is quite valid. Family Law should only be practised by lawyers who have expertise in that area. No matter how sympathetic you may be to your client it is not in their best interests for you to handle their family law case if you do not have the expertise so clearly needed. The lawyer must also have people skills as this is a traumatic experience for anyone to have to endure. In a perfect world I have no doubt that mediation is the ideal scenario but unfortunately we have to deal with a great amount of hurt and devastation. In such circumstances a great deal of time is needed to take the correct and detailed instructions from the client before you are in a position to outline what course of action you feel is necessary to achieve a satisfactory outcome for your client. Remember that you are dealing with someone’s life and indeed in most cases,the lives of children.

The family law practitioner has a heavy burden resting on them. Sometimes it can be a traumatic experience for them also. I recall a case many years ago when, with my opposite number, we disposed with most issues in the case, bar the custody of the children of the marriage. It is not what you think. Neither in fact wanted them ! They had no problem sorting out the house, in fact houses and cars, including the treasured BMW. I had to listen to quite a lot of nonsense that day but when they both argued that the children would be better off with the other, I became quite enlightened as to both of their lifestyles. Sometimes it amazes me what people’s priorities actually are !

LegalEagleStar  Wednesday, 27th. April, 2011

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April 27, 2011 at 2:38 pm

Mary wants to know what a 3rd. Party Notice is ?

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10 car pile up

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Q:    My name is Mary and I was served with something called a 3rd Party Notice today and I don’t really understand what it is? There was a car accident about two years ago where there was a bit of a pile up situation. I stopped at a traffic light and the car behind my car hit me and the car behind that hit him. I think the individual in the third car was injured because if I remember correctly an ambulance was called. The damage to my car was minimal and I never made a claim. Upon reading the documents I was served with today I believe the individual in the third vehicle is suing the man in the second or middle vehicle for personal injuries and some other reliefs and now that man who is called the Defendant is suing me. I’m a bit confused as I stopped safely at the traffic lights and the car behind me, clearly didn’t notice the lights had changed and broke suddenly which it seems caused a domino effect. What do these documents mean and do I have to go to Court?


A:  Mary this is called third party procedure. The Defendant, the man in the second car, believes you to be at fault in the accident and believes you are the correct defendant. What would have occurred so far is that the Plaintiff, the individual in the third car, has brought proceedings against the defendant. The defendant would then have brought a motion to issue and serve a third party notice on you. The Plaintiff did not have to attend this motion unless they wished to add you as a co-defendant and they obviously did not wish to pursue this. Effectively there are now two sets of proceedings in place. The first is between the Plaintiff and Defendant and if that case proceeds and the Defendant is found liable, then the second case between the Defendant and you as the third party takes place. Ultimately, at this point, the Defendant becomes the Plaintiff and you, the third party, become the Defendant. At this point where, we are presuming the Defendant is held liable for the accident, the court will access if all or any of that accident was your fault and a percentage of liability anywhere between 0% and 100% could be apportioned for blame.

What I would advise you to do Mary is contact a solicitor to discuss the matter fully with them and give your full account of the accident as you recall it. I would advise you to do this immediately as you have just ten days from service of the third party notice upon you, which is today, to make an appearance. You can do this yourself if you wish but your instructing solicitor can do this for you also and then they will become the solicitors on record for you and contact the other parties on your behalf to discuss the case.

LegalEagleStar,  Wednesday 20th.  April,  2011.

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April 20, 2011 at 2:33 pm

Are we really the ones with the Brass Neck ? You v. Insurance Co.

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wall of banks

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We’ve all heard the stories about the Mafia and their influence over politicians. Maybe not the Mafia itself but some other equally obnoxious grouping of wealthy gangsters who influence our lives to our detriment. In Ireland today, it is my opinion that the citizen has been targeted by unscrupulous individuals and companies as never before. I suppose the most obvious matter before the people at present is the totally unjust and indeed the scandal of the working man having to pay out of his own pocket to cover the debts of the wealthy gamblers who have bankrupted our country. Well haven’t we been targeted for years in similar ways but made to feel it was us in the wrong? That it was our fault that Big Business was being ripped off by us and not the other way round. That we’re all chancers out to make a quick Buck at the expense of what have been portrayed as seemingly Charitable Institutions. In this particular case, I’m referring to the Insurance Industry.

Our Government scream at us that we need our Banks. That civilisation as we know it will come to an end without them. Bail them out at any cost, and then repeat as necessary. They take a similar view when dealing with an allied industry, The Insurance Companies. It is not too long ago that the Insurance Corporation of Ireland, owned then by AIB , was ‘Bailed Out’ at the taxpayers expense. So bailouts include the Insurance Companies as well as the Banks. Why? Who owns these Insurance Companies? Do we? Is it a national insurance fund set up for our benefit? One would think so but in reality, well, the same people who own and use our Great Banking System. I’m reminded of an Insurance Individual that had retired as the returns on his investment were returning something like less than 60% profit. Post 9/11 he came out of retirement as profits of in excess of 85% were predicted. So, he had retired because he was not happy that his Profits from the Industry were not Huge as had been the case for years.

In Ireland we see on our Television Screens on a regular basis, the sight of You, yes You going on holiday after you’ve been involved in an accident. The voice over from this Insurance Company advertisement tells you in no uncertain terms that you are so doing at the expense of the rest of us. We have the Television Advert where you are seen as having an ever extending nose ! That exaggerated claims are a crime. That you are a terrible person! That You have caused a Claims Culture and that you are fraudulently claiming money from Insurance Companies that you are Not entitled to. Then our Government (enter Mary Harney)  told us that you cannot have big payouts AND low premiums. We were asked if we wanted Large Awards and abnormally High Premiums or if we want ‘normal’ awards and normal premiums. We are told that the Insurance Companies lose money as a result of our actions. The Insurance Companies don’t highlight the extent to which the ‘losses’ are often much smaller than they make out or not real at all. These ‘losses’ are used to justify steep increases in premiums but they don’t take account of the very substantial interest earned on the years premium that you pay up front and on the money put aside to meet claims made now but not paid for three or four years. The Insurance Industry has admitted in the past that the principle reasons for increases in premiums is the fact that Insurance companies ‘re-adjust’ to compensate rate reductions due to competitive pressure over the past number of years. Even this is not the whole truth.

In the past the Insurance industry persuaded the Government that if they abolished Juries, which were made up by You and your neighbours, that they would be able to reduce premiums. The Government followed suit and abolished Juries i.e. your say in what was fair and just. The Judges then assessed awards, not you. Awards went up but never did the Insurance Industry admit that Juries had got it wrong. That Juries had erred on the side of caution and indeed their awards were tending to be on the low side. That they should have been awarding Higher awards. Then they persuaded the Government to deny the citizen the constitutional right to bring a case before the Court at first instance and established the Personal Injuries Assessment Board, PIAB. This initially was openly labelled as a ‘Lawyer free Zone’. PIAB was and is made up by claims personnel recruited mainly from the Insurance Industry. So the citizen was expected to pursue their claims, on their own, denied the services of a lawyer ,the specialist in this area and deal directly with PIAB.  PIAB, remember have the benefit of their own claims handling specialists and indeed lawyers. Again the citizen, the victim, was being denied his/her rights and made to stand alone. Not dissimilar to the citizen standing alone against the Banks and their Building Societies etc.

BUT we are being conned, yet again. All the ‘competitive pressures’ is a smokescreen. You must hand it to the Insurance industry. They have such a brass neck that they don’t even get a red face when exposed. Insurance Companies are in the business of making money. They are there to make a profit for their shareholders. Those shareholders will get out of the Industry unless they get a high return on their investment. They are quite similar to bondholders who invest in Banks to make a profit. Bondholders have become the enemies of the people with talk such as ‘Burn the Bondholders’ but there is no such talk concerning the ‘Shareholders’ who demand high Premiums to satisfy their lust for, Your Money and on a yearly basis.

One of the best devices employed by the Industry has been to divide and conquer. Allow small business to treat everyone as though they are Frauds. And yes, all this propaganda and the millions of Euro spent on advertising has indeed worked well for them. Insurance companies now want us to regard anyone who makes a claim for whiplash injuries to be viewed as a possible fraudster until proved otherwise! They cite the disgraceful cases where ‘chancers’ and indeed criminals have made fraudulent claims. Yes, unfortunately there have been some and I for one would say that nothing short of prosecution and imprisonment would suffice to deal with such criminal behaviour. Such claims have been few and far between despite what you have been told. The use of Solicitors in the past has been an assist to the Courts in weeding out such cases. No solicitor in his right mind will take a case which he/she knows to be false. The Courts would and do throw such cases out. If a solicitor loses a case it is at great personal cost. Not a practise to be encouraged. If on the other hand you are referring to cases which the Insurance Company settles which you are then told is ‘suspicious’ then be aware, be very aware. In my thirty years plus practising personal injury law I have not seen a case been settled where such has been the case. I’m not saying it hasn’t happened but it would be so rare as to be almost negligible in the whole scheme of things. Of course the Insurance Federation will use such instances to their benefit as ‘justification’ for their actions in promoting their ‘Fraudulent Claims Culture’. That of course doesn’t mean that I haven’t heard Solicitors and Claims Assessors making such remarks and on a regular basis. Many cases where it was claimed that the injuries have been exaggerated have in fact seen people end up in great pain and suffering at a later stage. My view is that we can’t allow them to dictate what is fair compensation. They want higher premiums and lower awards. Courts and Judges, if not you serving on a Jury, must be the decider of what is fair in the circumstances of the particular case. A broken arm cannot be the same to an artist as to an office worker and today PIAB decide on what they alone consider proper. Only after PIAB, or should I say ‘The Injuries Board’ which they now call themselves, disposes or releases your claim can your lawyer take the matter over and pursue your claim through the Courts. Justice delayed is justice denied.

Last week I referred to reform of the legal system. I mentioned providing a level playing field. Well The Law Society at the behest of the Government restricted advertising by solicitors, in particularly those providing personal injury services. It was those solicitors, who for the first time in Irish Legal History, brought cases before the courts for people who could not afford to pursue their cases before the Courts. They made the law accessible to the people for the very first time. Law no longer was just for the rich but for you and me. This was done on a No Foal no Fee basis. That has now been outlawed and although some solicitors still take such cases, they do so at the risk of sanction by their professional body. The old saying is very true today:  ‘One law for the Rich and another one for the Poor’.

LegalEagleStar  Wednesday, 13th. April 2011.

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April 13, 2011 at 2:38 pm

Angry !!

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Lady Gaga says Happy Birthday

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As no Insurance Company or indeed any  Bankers have Wished me a Happy Birthday today, I will not be holding back in my Blog this Wednesday !  So be Warned. I will tell it as it is. I promised, from day one after qualifying more than Thirty Years ago, that I would not act for any Bank or Insurance Company – as a matter of principle. They have not made my professional life easy as a result, but I have stuck to my principles. Thanks to my late father for instilling in me his trade union moral and ethical standards and for my mother, for putting up with me as a result. My children for their faith in me and their  support without whom I would have given up the fight long ago.

I love My Birthday nearly as much as my Family, Friends and Clients. Many Thanks to all who have sent me Birthday Wishes. They are all very much appreciated.

Now to the Blog (sharpening pencil, Ouch)

 

LegalEagleStar  Monday, 11th. April, 2011

 

 

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April 11, 2011 at 3:00 pm

Help ! My Daughter’s a Lawyer.

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Hajnal Ban outside of the law courts after bei...

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The legal profession has come under scrutiny again since the arrival of the IMF on our door step. Reform of the profession is on the Agenda and nearly all of the public feel, well about time. These lawyers are ripping us off and charge enormous fees that’s what they do. Reform is like a stick to beat the lawyers with and very few disagree. It’s like, well they are responsible for all the trouble we’re in, aren’t they?

Today the legal profession is made up of your sons and daughters who have studied hard, gone to College and then entered Law School either in The Law Society for solicitors or The King’s Inns for barristers. Most qualify in their mid 20’s seeking employment. Those who pursue a career at the Bar will spend, say two years ‘deviling’ and with the help of You, their parents, will spend at least another five or six years attempting to establish themselves at the Bar. So by the time they are 30 or so, they may start to make a living. Most do not and must seek employment elsewhere. As for a Solicitor, you must spend a number of years as an apprentice and pay very high fees to the Law Society during your training. Unlike when I was apprenticed, you now can ‘get paid’ during your apprenticeship by your Solicitor. These payments are more like pocket-money and go no way to enabling you to pay your way through your ‘time’. I’m told it’s about Euro 200 a week but not all get paid this. So, many work for nothing as otherwise, needing an apprenticeship, they could not commence their studies at The Law Society. So, after all the expense and time spent at study, the young solicitor needs to seek out employment. Today there are more lawyers seeking employment than at any time in the past. Remember that they could not have qualified as either solicitors or barristers without your help. They are remember, your sons and daughters.

In another era, the law was not a career you could pursue without family connections or else come from a wealthy background and usually have political connections. They were in effect ‘closed’ professions. There was as a result more work for fewer people. If you could work hard for a few years you were guaranteed a good living and for life. Conveyancing fees were 1% plus £100. Think about it. The £100 that is. By dealing with maybe three or four sales you could pay your overheads including rent, staff, expenses, taxes etc. for a full year. Those times are now gone except of course, for the select few. Today the fees from three or four sales would hardly cover one weeks overheads. The more the professions opened up the less lucrative they’ve become. This is not a bad thing in itself but goes some way to show how times have changed. I am not attempting to justify the enormous fees charged by some law firms. But these are indeed the exception.

There is a clear division within the legal profession today. Between those who act for the State, Banks, Insurance companies and such like and then ‘the rest’ of us. If economists and other commentators and I include David McWilliams ( a man I have great respect for ) among those who criticise the lawyers, then they should not tar all with the same brush. Don’t direct your criticism at the average lawyer as to do so is to do a great injustice to those in the legal profession who spend their lives working for ‘the man in the street’. These lawyers represent you on a daily basis and fight to protect you from the abuses of the State and Society. Without them we have no chance to fight to protect the rights of those in society who are most vulnerable. Today those people are You. You have worked hard to provide your family with a home. That home is now under threat from the Banks and their allies in politics and elsewhere. You will be faced down by these Banks and they will employ, yes at great expense, the services of professionals, including lawyers and accountants . How are you to fight for your rights if not by employing the services of your local family solicitor or other lawyers who have in effect your life in their hands? Yes we need reform of the legal system and those of us on the coal front have been screaming for same for years. But we must get a level playing field where your sons and daughters can practise for the benefit of you, the working public and not an elitist minority.

Do not bundle all lawyers into the same group Mr McWilliams. Tribunal Lawyers and the fees they received are not the norm. Lawyers in general have the good of society at heart and spend their lives promoting justice and equality and the rights of the less well off than anyone else. Don’t let those that want to do away with your rights succeed in furthering the notion of  ‘a lawyer free zone’. You are the one that will suffer most not those who run the Banks and Large Corporations who will never be short of ‘legal advice’ to pursue their ill-gotten gains.

Next week I will deal with the cosy relationship between the State and the Insurance Industry and how Your Rights have been severely curtailed to increase the wealth of the ‘privileged classes’.

 

LegalEagleStar , Wednesday 6th. April , 2011

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April 6, 2011 at 1:48 pm

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