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First Year Tip Series: Introduction to Case Notes

First Year Tip Series: Introduction to Case Notes

Ben Conlon, Senior Editorial Board (Online Editor)

A case note is something that every law student is asked to write at some point in their studies and, without some direction, can be a daunting task. This article aims to briefly explain what a case note is, what the benefits of writing a case note are, and how to actually write a case note. Further information is also included at the end of the piece about the Gernot Biehler Case Note competition.

What is a Case Note?

A case note is a summary and analysis of a single case, as opposed to an article, which examines an area of law. A case note should outline the facts of the case, as well as its ratio decedendi, and also provide a critical analysis of the decision. The analysis should concern the correctness of the decision, with reference to case law, accepted logic and academic opinion. A good case note usually contains analysis of the effect that the decision may have on future cases, especially if the decision is a departure from a previously settled point of law.

What to Keep in Mind when Selecting a Case

If you have the option of selecting the case you would like to write on, below are some factors you should keep in mind:

  • Try to pick an area of significant concern or a topical issue
  • Does the case seem to ignore reason/common sense?
  • Is there a recent case where the court departs from precedent or a position accepted in other jurisdictions?
  • Does the decision which may have significant extra-legal repercussions.
  • Will this decision prompt interesting results in future cases?
  • Was this the first case in a newly-legislated area?
  • Has there already been substantial academic commentary written on this case? Often it may be better, for originality’s sake to write on a new case, or one that has not been subject to as much discussion.

How to Write a Case Note

(A) Research

As with any piece of legal writing, the first step in writing a case note is conducting the necessary research. Read the case multiple times and note down the facts and the ratio decedendi. The case should be read in the context of the area of law as a whole; understanding how the case relates to existing principles and case law is key in forming a critique and analysis. Further consideration should be given to whether the law is still relevant, and whether it is still considered to be a strong precedent. While a case note tends not to rely on academic sources as much as a legal essay, it is still worth exploring academic commentary around the case, from which a greater perspective can be gleaned.

(B) Writing

There is no rigid structure for how a case note should be written, but this article will attempt to lay out a basic structure and guide for writing the case note itself. It is worth noting that many brilliant case notes do not follow this structure, and can often depart from it dramatically, so there is no pressure to follow this structure.

As is the case in most legal writing, it is generally recommended that the piece is broken down into separate headings. This can make the case note easier to follow, and direct the reader to the important elements of the piece. When writing a case note for a legal journal or a university assignment, regard should be had for the word-count when deciding on how specific the headings are; if there is a lower word-count, it might make sense to merge some of the headings together.

(i) The Introduction

The introduction of a case note should introduce the case and indicate the court in which it was decided. It should lay out the structure of the case note, explain the significance of the case (i.e. the change in the law brought about by the case), and briefly outline your opinion of the case.

(ii) The Facts of the Case

The second section of the case note should briefly outline the facts of the case. It is important to keep in mind that a case note is not simply a summary of a case; the facts simply set out the background for your analysis. Due to this, this section of the case note should not be too long, and the aim should be to illustrate the facts that were relevant in the court’s reasoning, rather than the entirety of the factual circumstances. This is generally a good place to mention the decisions of the lower courts in relation to the case at hand.

(iii) The Decision and the Ratio Decidendi

This section of the case note should deal with the reasoning that lead to the court’s decision, and specific emphasis should be placed on the key decisions and the ratio decedendi. Here, detail should be provided on the case law that the court either relied on or moved away from, and a short explanation of the reasoning behind such moves should be given. The way that the decision was handled should also be mentioned (e.g. was the judgment suspended to allow the government to amend the issue?), as this is often indicative of the attitude of the courts in relation to the issue at hand.

(iv) Critical Analysis/Further Discussion

The primary aim of a case note is to critically analyse a particular decision and the effect it has on the law. “Critically analyse” can be a confusing phrase, so considering some of the following questions may be a useful starting point:

  • Is the logic of the judgment sound? Do you agree with it? Why or why not?
  • Does the judgment differ or depart from previous decisions? Does it follow some aspects but not others?
  • How does the judgment compare with international precedent?
  • Does the judgment reflect political/economic/cultural tensions?
  • Does the judgment fail to acknowledge any legal or extralegal repercussions it may have?
  • Has the judgment failed to address any important questions?
  • Do you agree with the decision? Why?

It is worth noting that “critically analyse” does not mean you have to disagree with a judgment; the best critical analysis praises some aspects of a judgment, and attacks others. Commentary on previous related decisions may help to inform your opinion on a case, and help with the critical analysis. It is recommended that some thought is given to how the case may have a lasting impact, and it should be acknowledged whether or not the case might be open to appeal. However, as in any legal piece, it is advisable that a certain degree of critical analysis is woven throughout the piece, rather than isolated to one section.

(v) Conclusion

The conclusion should very briefly summarise the decision, the flaws and achievements that have been discussed throughout the case note, and your overall opinion. A general rule for any piece of writing is that new substantive arguments that have not been discussed in the body of the piece should not be introduced in the conclusion. Finally, some concluding remarks could be offered about the effect of the case on that area of law, and how future cases may be influenced by it.

Some Final Tips

As is the case with any piece of legal writing, there should be a cohesive thread of argument that runs through the case note, but this may be difficult to  pick up on  after several hours of writing by yourself.  As a result, the argument you have crafted might make sense to you, but not to a new reader. One of the best ways to deal with this is to ask someone else to read over the piece and offer some of their own comments.

While it is always advised to read through previous academic pieces written on your chosen area, make sure when citing academics that you are also evaluating their arguments to the reader. Do you agree with what the academic has said? How does their argument bolster yours? Or, how would you refute what the academic has argued? Analysing the academic commentary you have utilised is key to presenting critical analysis in your piece.

In the same vein, when presenting your arguments, it is recommended that you recognise ‘the other side.’ This is particularly important in controversial areas of law, like socio-economic rights, where presenting a one-sided argument will reflect poorly on the author’s critical analysis.

As a final note, the TCLR Online has published many case notes, and reading over these can help you to form a picture of what a case note looks like, and what a case note should contain. Many longer case notes have also been published in the print version of the TCLR, which can be found on the legal article database Heinonline.

The Gernot Biehler Case Note Competition

The Trinity College Law Review runs an annual case note competition in honour of Dr. Gernot Biehler. Dr. Biehler was a distinguished fellow of Trinity College and a lecturer in international law and conflicts of law, who died aged 48. Dr. Biehler was a keen supporter of the work of the Law Review.

The competition is open to first and second year undergraduate students from all universities. Case notes are subject to a word limit of 3,000 words excluding footnotes, and the deadline for submitting your entry is the 17th January 2020. The winning entry is published in the print journal of the Trinity College Law Review, and the winner receives a cash prize of €250. More information on the competition can be found at www.trinitycollegelawreview.org/submissions/ .

 

 

 

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The Future of Climate Litigation in Ireland: An Appraisal of Climate Case Ireland

The Future of Climate Litigation in Ireland: An Appraisal of Climate Case Ireland

Eoin Forde, Senior Editorial Board (International)

Introduction

On September 19th, Mr Justice Michael MacGrath delivered the much-anticipated ruling on Friends of the Irish Environment’s (“FIE”) action against the Irish government, in a dispute known as ‘Climate Case Ireland’. Submissions were delivered in January to a High Court chamber filled with supporters of FIE’s cause,[1] and their legal arguments considered numerous points of law not limited to constitutional rights, separation of powers and the extent of justiciability of executive actions. FIE’s central claim was that the Government’s National Mitigation Plan 2017 failed to adequately respond to the targets set in various UN accords such as the Kyoto Protocol and 2015 Paris Agreement, and that this inaction was endangering the fundamental rights of Irish citizens.

In dismissing the judicial review claim, MacGrath J considered the National Mitigation Plan 2017 to come within the realm of policy-making, which is exclusively reserved for the executive branch of government. Furthermore, it was held that even if such governmental climate policy was found to be justiciable, it could not be held to be impermissible due to the wide margin of discretion given to the government in formulating the 2017 Plan as per the  [2] Over the course of his ruling MacGrath J also clarified the precedential status of locus standi for non-natural persons in environmental cases, and raised issues regarding the separation of powers doctrine and more recent developments in ECHR jurisprudence.

Background - National Mitigation Plan 2017

This judicial review application concerned the government’s implementation of the National Mitigation Plan 2017, which was enacted pursuant to s3 of the Climate Action and Low Carbon Development Act 2015. The 2015 Act, according to its Long Title, was enacted by the government for the purposes of ‘pursuing the transition to a low carbon, climate resilient and environmentally sustainable economy’[3] – the achievement of this by the end of 2050 is referred to in this Act as the ‘National Transition Objective’.[4] To achieve this National Transition Objective, the Minister for the Environment is empowered to formulate and submit to the Government for approval a ‘National Mitigation Plan’, and a ‘National Adaptation Framework’.[5] The first of these measures, the National Mitigation Plan, was the focus of this case.

The National Mitigation Plan is a series of policy recommendations that are geared towards achieving the previously mentioned National Transition Objective, and its formulation is guided by s 4(7) of the 2015 Act. According to this section, the Minister, when formulating a National Mitigation Plan, must have regard to:

  • State obligations under EU law;
  • The promotion of sustainable development;
  • Cost-effectiveness;
  • Relevant scientific advice; and the
  • Recommendations of an Advisory Council set up under the 2015 Act.[6]

When the National Mitigation Plan is submitted to Government for their approval, the Government is obliged under s3(2) to have regard to the United Nations Framework Convention on Climate Change 1992, governmental policy on climate change, climate justice, relevant EU law and the Environmental Protection Agency’s projection of future greenhouse gas emissions.

Arguments of Friends of the Irish Environment

In their submissions, FIE considered the 2017 Plan enacted by the Minister to be:

  • An ultra vires employment of Ministerial power under the 2015 Act;
  • A breach of Constitutional and ECHR rights.[7]

Pursuant to this, FIE submitted that the 2017 Plan be quashed, along with seeking various declaratory reliefs outlining the inadequacy of the 2017 Plan, and a declaration from the government of their intention to enact a plan under the 2015 Act that more effectively responds to the issue of greenhouse gas emissions.[8] In support of these arguments, FIE also asserted that the 2017 Plan would fail in reducing Ireland’s greenhouse gas emissions by 25-40% by 2020, an obligation stemming from Ireland’s position as an Annex I country under the Paris Agreement 2015. The two arguments can be dealt with sequentially.

(1)   Ultra Vires the 2015 Act

FIE’s first claim came under the argument that the Minister’s enactment of the National Mitigation Plan 2017 was ultra vires the 2015 Act. The argument goes as follows – the Minister is only empowered to produce a National Mitigation Plan that conforms to the 2015 Act; if the 2017 Plan is considered to be incongruous with respect to the aims of the 2015 Act, it is therefore not a plan the Minister was empowered to make. Following this, it may be quashed.

The first issue to be decided is if the 2017 Plan is even reviewable by the court in the first instance. This question of justiciability – that being, whether or not the 2017 Plan is amenable to judicial review - stems from considerations of the separation of powers doctrine. MacGrath J explained this simply as, ‘The Government and the Government alone may exercise the executive powers of Government’.[9] The powers conferred to the Government are numerous and often ill-defined, but it is enough to say that the most relevant executive power to consider in this case is that of policy-making. Policy-making is considered one of the core functions of the executive branch of government, and cannot be exercised by any other branch. This was illustrated clearly by Hogan J in the case of Moore v Minister for Arts, Heritage and the Gaeltacht:

‘The system of separation of powers provided by the Constitution is quite clear, namely, that matters involving policy and political choices of this nature are matters for elected representatives and must therefore by definition be either executive or legislative powers which cannot appropriately be discharged by an unelected judiciary’.[10]

This principle is even more appropriate in cases that consider the appropriation of public funds in relation to the national interest; MacGrath J points to the ruling of Charleton J in the case of Garda Representative Association v Minister for Finance on this point:

‘The Government has the power to set policy on areas of national interest and to disperse funds in accordance with that policy. These decisions are, in my view, in a category beyond the scope of judicial review’.[11]

What this means for the 2015 Act and subsequent 2017 Plan is that if such documents are found to be an extension of Governmental policy-making as opposed to more regular executive function, they may be non-justiciable. Furthermore, the fact that the 2017 Plan also considers disbursement of public funds may put it out of reach of judicial review regardless, according to the judgment of Charleton J in Garda Representative Association. As a result, the exact wording of the 2015 Act and 2017 Plan was considered by MacGrath J.

In reference to the reduction of emissions by 2050 (the National Transition Objective), the Government’s duty according to the 2015 Act is to ‘endeavour to achieve’ it, not just ‘achieve’ it. Similarly, the purpose of the 2017 Plan according to the 2015 Act was merely to provide ‘policy measures’ that ‘in the opinion of the Government’ may manage greenhouse emissions.[12] As a result, this appears to amount prima facie to deal with issues of policy and public funds – categories of Governmental activity which are traditionally all but out of reach from judicial review. Stemming from this, it would seem that the 2017 Plan was prima facie non-justiciable. However, MacGrath J did not formally state this, instead opting in the interests of comprehensiveness to analyse the legitimacy of the 2017 Plan as if it were justiciable.

If justiciability is assumed, the difficulty in FIE convincing the court to intervene in the enactment of 2017 Plan is still considerable. To warrant judicial interference in the policy-making sphere of the executive, there would have to be a ‘clear disregard’ shown by the executive for the Constitution in its actions. This was noted in the case of TD v Minister for Education,[13] where Murray CJ ruled that actions taken by the executive are presumed to be compatible with the Constitution, unless a litigant can show that the Government acted in ‘clear disregard’ of its constitutional obligations.[14] According to Murray CJ, ‘clear disregard’ meant a ‘conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness’.[15]

Following this, it is clear that the policy considerations of the 2017 Plan were unlikely to have ever reached this high watermark. As a result, MacGrath J rejected this line of argument from the applicant without needing to determine definitively if the 2017 Plan was even justiciable to begin with.

(2)   Breach of Constitutional and ECHR Rights

The other line of argument pursued by FIE came in the form of alleging a direct breach to the Constitutional and ECHR rights of Irish citizens. Firstly, the court had to consider the locus standi of Friends of the Irish Environment in this case. Normally, the inability of a non-personal body such as Friends of the Irish Environment to be interested in rights such as bodily integrity and life would have precluded them from taking this challenge. However, following the rulings of Merriman v Fingal County Council[16] and Digital Rights Ireland v Minister for Communications,[17] this rule has been relaxed in cases relating to environmental issues and those where the body corporate has a bona fide interest in its members and the public at large. On this basis, MacGrath J noted that he was ‘satisfied to accept… that the applicant has established that it has locus standi’.[18]

Turning firstly to the Irish Constitutional rights – FIE alleged ‘an infringement to the right to life, right to bodily integrity, and right to an environment consistent with human dignity’.[19] These were all quickly dismissed by MacGrath J, with the judge noting that ‘it cannot be concluded that it is the plan which places these rights at risk.’ It would appear that the lack of specificity in the 2015 Act and 2017 Plan which precluded it from constituting an ultra vires policy also ensures its inability to be considered causative in infringing constitutional rights. In the words of MacGrath J, the 2017 Plan is ‘but one, albeit extremely important, piece of the jigsaw’.[20]

Following this, MacGrath J considered the alleged breaches to Articles 2 and 8 of the European Convention on Human Rights – the right to life and the right to respect for family and private life. On this point, MacGrath J was invited to consider the recent ruling in the Dutch case of Urgenda.[21] In Urgenda, the Dutch Court of Appeal found the State to have acted breached Articles 2 and 8 of the ECHR. The ruling in Urgenda was especially surprising due to the active role the Court appeared to take in intervening in government function, and its invocation of scientific literature in reaching its conclusion. In Urgenda, the Court noted that the Dutch government’s failure to put in measures to ensure it was likely to reach a 25% reduction in greenhouse gas emissions by 2020. What was especially notable about this ruling was that even though the government had submitted that they estimated greenhouse gas emissions to fall by 19-27%, this wide ‘margin of uncertainty’ was considered unacceptable by the Court.[22]

However, MacGrath J did not consider such a ruling to be applicable to the case at hand. Noting that ‘This court knows little of the duty of care under Dutch tort law’, MacGrath J noted that the separation of powers in the Dutch constitutional order may be different to that of Ireland’s and that causality was not a major factor in the ruling of Urgenda. As a result, it was found that there was nothing in Urgenda that made the ruling binding in this case. Furthermore, one of the factors that determines a violation of Article 8 ECHR rights is the legality of the impugned legislation. As a result, with MacGrath J having already considered the 2017 Plan to be prima facie lawful, an appeal to ECHR rights on this point was unlikely to ever be fruitful.

MacGrath J noted further that because the case of Urgenda considered an issue relating to articles of the ECHR that have not directly addressed by the European Court of Human Rights itself, Irish courts are not necessarily obliged to follow it. This principle was enunciated in McD v L & M[23] with Fennelly J noting that:

‘It is vital to point out that the European Court has the prime responsibility of interpreting the Convention… The courts of the individual states should not adopt interpretations of the Convention at variance with the current Strasbourg jurisprudence’.[24]

Following this, MacGrath J noted that wider arguments such as general national policy in relation to climate change were not made by FIE – after all, this case was merely a judicial review application concerning the executive’s action of adopting the 2017 Plan. In this case, the purpose of the 2015 Act itself was not called into question for its efficacy, nor was there an argument made that the Irish government was failing its citizens in general in relation to its perceived nonfeasance in the issue of climate change. According to MacGrath J, this is all to say that in relation to the issues that FIE’s judicial review application could raise, the Government could not be compelled to quash or alter its current climate change policy as enunciated in the 2017 National Mitigation Plan.

Discussion – What Next?

On the face of it, this ruling is a heavy blow to Irish climate activism, and  a reinforcement of the deferential attitude of the judiciary towards actions of the executive that has been a constant in recent Irish jurisprudence. Climate activists may find some solace in the fact that the Court seemed to explicitly recognise the issue of climate change in a manner not yet seen in the Irish courts, with MacGrath J going as far as to say in the first page of his ruling that ‘The threat to the earth, its inhabitants and ecosystems, posed by the effects of climate change is well documented. The need for action is undoubted’.[25] That being said, it does appear that if the Government is to be held to task on its climate change policy, it does not seem likely that the Irish Courts are going to be arena in which this fight is won.

However, all is not lost for Irish environmental activism. Firstly, MacGrath J’s endorsement of the idea that it is a party’s interests – not necessarily its enjoyed rights – that gives it locus standi suggests that environmental interest groups such as FIE will have little issue in having their legal standing recognised in future cases. This is a welcome advancement in the Irish judiciary’s appreciation of the concept, and may open the door for future cases to be taken by representative groups.

Secondly, implicit in the judgement is the suggestion that a constitutional challenge to the 2015 Act itself may be a possible avenue of litigation.  While the scope of this judicial review limited the Court’s focus to the 2017 Plan in relation to the goals of the 2015 Act, there is nothing stopping an interest group challenging the 2015 Act in relation to its inadequacy in dealing with the climate crisis. However, this approach may run into numerous issues, such as nonfeasance on a policy level being a difficult ground for a court to reach a finding of unconstitutionality. There is also the further issue that it could be argued by the State that the 2015 Act is not the extent of the Government’s policy in relation to tackling climate change, and as a result this may be a difficult route to take.

There is also the suggestion in this ruling of the possibility of taking a free-standing challenge to the constitutionality of the Government’s action by means of a proportionality analysis, notwithstanding any particular legislative developments. Such an approach may force the judiciary to consider more seriously the ruling in Urgenda, but the nature of the Irish separation of powers may yet again persuade the judiciary to grant enough deference to the executive on this point, notwithstanding ECHR considerations.

This is all to say that the Court may be effectively hamstrung in dealing with an issue as multi-faceted and policy-oriented as climate change, according to the Irish constitutional order – if the Supreme Court could not be persuaded to intervene in the case of TD which brought with it clear alleged impingements of fundamental rights by the Government and a cost to the state of (mere) millions, it is unlikely that the an Irish court could be convinced to intervene in an issue which less clearly affects fundamental rights, and would cost at least hundreds of millions. Such issues, it would seem to the court, should be left to the Dáil.

Conclusion – Right Words, Wrong Place

In summation, it appears that the efforts of climate activists in Ireland may not have garnered such judicial support as to trigger a High Court rebellion against the executive. Nor, it should be stated, would such a response have been particularly welcomed. If there is a silver lining to be taken from the ruling in this case, it is that Irish interest groups may be better informed that the Dáil itself might be more responsive to a reformulation of Ireland’s climate change policy. After all, it is the elected representatives in the legislature and executive that the Irish citizenry have given this power to, to be checked by the judiciary in situations of the most ‘clear disregard’ for our Constitution.

The ruling of MacGrath J in this case was noted by Suryapratim Roy to be ‘clearly articulated and accessible’,[26] an observation with which this commentator agrees. While FIE have indicated their dissatisfaction with the ruling and mooted the possibility of an appeal,[27] it would seem that a more successful result would come from a separate case against the 2015 Act itself, a freestanding proportionality challenge against the executive, or at the very least a rephrasing of the arguments in this case with more weight being placed on the decision in Urgenda and its ECHR implications.

As our constitutional order matures and our branches of State settle into a more fixed division of power, it may be seen that the avenue in which social concern expresses itself becomes just as, if not more, important than the prominence of the social concern itself. Taking this to its logical conclusion, the argument could be made that the petitioning of the government for a policy change, or even a citizens’ assembly on climate issues with the possibility of a constitutional referendum, may be the best avenues for Irish environmental activism.

[1] Mary Carolan, ‘Ireland ‘completely off course’ in meeting carbon reduction targets – court told’ The Irish Times (Dublin, 22 January 2019).

[2] Climate Action and Low Carbon Development Act 2015.

[3] Climate Action and Low Carbon Development Act 2015, Long Title.

[4] Climate Action and Low Carbon Development Act 2015, S 3(1).

[5] Climate Action and Low Carbon Development Act 2015, S 3(1).

[6] Climate Action and Low Carbon Development Act 2015, S 4(7).

[7] Friends of the Irish Environment v Ireland [2019] JR 793, [12].

[8] ibid.

[9] Friends of the Irish Environment (n 6), [88].

[10] [2018] IECA 28, [55].

[11] Garda Representative Association v Minister for Finance [2010] IEHC 78.

[12] Friends of the Irish Environment (n 6) [112].

[13] TD v Minister for Education [2001] 4 IR 259.

[14] ibid, 337.

[15] ibid.

[16] [2017] IEHC 695.

[17] [2010] 3 IR 251.

[18] Friends of the Irish Environment v Ireland (n 6) [131].

[19] ibid, [132].

[20] ibid.

[21] State of the Netherlands vs Urgenda Foundation [2018] ECLI:NL:GHDHA:2018:2610.

[22] ibid, [73].

[23] [2009] IESC 81.

[24] ibid, [104].

[25] Friends of the Irish Environment (n 6) [2].

[26] Suryapratim Roy, ‘Is climate change an issue of human rights?’ The Irish Times (Dublin, 15 October 2019).

[27] Tony Lowes, ‘Friends of the Irish Environment to consider grounds for appealing High Court ruling in historic climate case’ https://www.friendsoftheirishenvironment.org/climate-case/17703-friends-of-the-irish-environment-to-consider-grounds-for-appealing-high-court-ruling-in-historic-climate-case Accessed 17 October 2019.

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Lord Denning’s Theory of Everything: An Analysis of Remoteness in Tort and Contract Law

Lord Denning’s Theory of Everything: An Analysis of Remoteness in Tort and Contract Law

Alex Guard

Introduction

Albert Einstein dedicated the last thirty years of his life to the pursuit of proving the Theory of Everything. This idealistic and ultimately fruitless concept saw the attempted unification of the two foundational theories of physics: General Relativity and Quantum Field Theory. Einstein’s failure and the failure of all subsequent physicists to make such a unification has led many to acknowledge that some subjects are simply meant to stay separate. It is submitted that Lord Denning’s attempt in Parsons[1]to square tort and contract law’s doctrines of foreseeability into a neat test is no less quixotic than the Theory of Everything and thus, this essay will argue that Irish law should instead follow Lord Reid’s more realistic approach in The Heron II.[2]

 

Foreseeability Undergirding Remoteness in Tort and Contract

A common thread in both tort and contract is the question of whether the damage caused by the defendant’s tort or breach of contract is too remote for the defendant to be liable for the same? In answering this question, both tort and contract law have turned to the concept of foreseeability.[3]

In common vernacular, foreseeability is defined as a subjective awareness of possible future occurrences and implies an ability to plan for those future possibilities.[4]Within law, foreseeability derives its substance from the concepts of fault and choice. The logic being that someone who chooses not to avoid a harmful consequences, foreseen by them to be caused by their actions, will be held at fault.[5]The purpose of foreseeability for both tort and contract is to define the point on the continuum between responsibility and remoteness beyond which the defendant has no liability.[6]

Tort and contract, as a rule, do not look into the minds of the real contract-breaker or real tortfeasor.[7]Instead, they take an objective approach by using the reasonable person standard, such that a defendant will be liable for damage that a reasonable person would have foresaw and avoided.[8]This has proven to be a very effective tool in deciphering remoteness because it circumvents the administrative difficulties with proving subjective mental states, establishes generalized standards of conduct to be used in tort and protects reasonable expectations between contracting parties.[9]

However, this shared objective approach to remoteness, although effective, is not perfect and can often be problematic. Namely, it can impute foreseeability to an unaware defendant who actually did not foresee the risks, treating him as though he did and thus, expanding the justification of liability beyond the scope of personal wrongdoing.[10]Moreover, Hoffman argues that, in the case of contract, foreseeability is guilty of being too formulaic and indefinite.[11]In Transfield[12], Hoffman held that the courts ought to consider the extent(as opposed to what kind) of liability for compensation a reasonable person would have assumed responsibility for when making the contract.[13]He claimed that the courts have to go further in their establishment of remoteness and that the orthodox position is merely a superficial and formulaic explanation that acts like a deus ex machinawithout really divulging the reasoning behind why some consequences are deemed foreseeable and others are not.[14]

This piece submits that, even though Hoffman’s interpretation of remoteness is somewhat dubious, namely due to the practical difficulties regarding availability of evidence,[15]his perspective acts as an illustration of the following point: foreseeability is not a hermetic concept and not only does it vary depending on the category of law, but indeed it is individual to the facts of each and every case.

 

Disparity in Tort and Contract’s Application of Foreseeability

As Lord Denning rightly points out, there is a lot of unnecessary confusion surrounding tort and contract’s application of foreseeability due to semantic distinctions.[16]It is argued that the distinction between what a tortfeasor “foresees” and what a contract-breaker “contemplates” is fallacious because there is no way the courts can quantifiably measure the difference of thought either person gives to a potential consequence. It is also argued that the distinction’s symbolic value, serving as a linguistic demarcation between tort and contract, is unnecessary as their differences are apparent from their alternative stipulations of probability.[17]

The Heron II is considered the authoritative precedent on the orthodox position concerning remoteness in tort and contract. The House of Lords held that, in the case of tort, the court, in determining whether the tortfeasor is liable, has to consider whether the consequences were of such a kind that a reasonable man, at the time the tort was committed, would foresee them as a very unlikely to occur.[18]In the case of contract, the defendant will be found liable if they, at the time of making the contract, ought reasonably to have contemplated (foresaw) that the consequences of their breach of contract would be not unlikely.[19]It is clear from this positon that the applications of foreseeability in tort and contract are not the same and that the test in contract is far narrower than that of the wide liability imposed by tort.[20]

 

Analysis of Lord Denning’s Position

In Parsons, Lord Denning proffered a new formulation of remoteness to be applied equally in both tort and contract law. This new formulation essentially bifurcated the standards of foreseeability into two groups: losses for physical damage and economic losses.[21]In the former class of case, Lord Denning applies the tort standard, maintaining that a contract-breaker will be liable if, at the time of the breach, the consequences that ought to have been foreseen were of a slight possibility. In the latter class of case dealing with economic loss, Denning maintained the contract-breaker will be liable if their consequences, at the time of the contract, ought to have been contemplated (foreseen) as a serious possibility.[22]

Lord Denning’s policy behind his new distinction and indeed new perspective on remoteness is no doubt, on the surface, a laudable one: that it would be absurd for a different result to be achieved based on whether the action is in tort or contract.[23]However, it is unclear how this distinction and the squaring of tort and contract’s degrees of foreseeability solves this problem. Denning gives examples of how liability in tort is too wide and notes how it is inconsistent that a manufacturer is liable to the ultimate consumer in tort but not in contract.  Moreover, he gives an example of a contractual and gratuitous hospital/patient relationships and notes that it is wrong that the former can sue in contract and the latter in tort, and that even though the injured party suffers the same damage, they would face different tests for remoteness. It is submitted that there is actually no real iniquity in this orthodox position as the injured party in the former contract case, if unsuccessful at the narrower threshold, can have recourse to the wider test for remoteness in tort. Obviously, the tort party would never have been able to sue for breach of contract, nor should they, because there is no contractual relationship.

Another argument in favor of Denning’s position, which maintains that remoteness in tort and contract should be codified, is that it is sometimes unclear whether an action comes under tort or contract. McDowell contends that this is no reason to collapse the two into a single test[24]and it is submitted that Lord Scarman arriving at the same result as Denning suggests that the orthodox position can be navigated through sufficiently.

The most important criticism of Lord Denning’s delusional position is its complete disregard for the fundamental differences that exist between tort and contract. As Scarman notes, there is no case law supporting such a codification.[25]By creating a complete equation of the tests Denning upsets the crucial understanding that in contract, the critical time for foreseeability is at the time of the making of the contract and not at the time of breach.[26]This derives from the fact that a contract cannot be unilaterally altered after it has been made and thus it must be what is foreseeable at the time of the contract. It is argued that these fundamental distinctions, which have been outlined above, are significant and as a result of them, it is illogical and illusory to contend that remoteness can be equated in tort and contract.

 

Analysis of Lord Reid’s Position

The question is why should contract have a much narrower threshold than that of tort? It is argued that there are numerous reasons as to why contract law should impose narrower degrees of remoteness for damages than tort for compensation. The first reason is that the nature or origin of legal obligation in tort and contract are completely different. In tort, a duty of care is imposed generally on the population deterring them from engaging in,inter alia, negligent or fraudulent behavior. Due to this generality tort needs normative standards of conduct such as the reasonable man. As illustrated by Transfield, contract does not mesh with objective standards as well as tort. This is because, in contract, the nature of the obligation is a voluntary agreement between the parties and therefore, the duty of care can be highly individualized.[27]It appears obvious that contract should not be constrained by strict normative standards of conduct as the duty of care is often not normative in nature. It must be more deferential to the defendant and cannot judge him by a strict generic norm because the defendant may have atypical obligations arising from the voluntary agreement.[28]In other words, it is unfair to force contract to act as a housecat when it is really a tiger, so the law must compromise and let it be governed by the conduct of a lynx.

Another salient reason for narrow liability in contract, providing the fulcrum for Lord Reid’s judgment, is that in contract, if one party wishes to protect himself against a risk, which to the other party would appear unusual, he can direct the other party’s attention to it before the contract is made. This would allow them to assume responsibility for said risk.[29]It can be said that this reasoning is first-rate as it incorporates the fundamental legal values of individual autonomy and freedom of contract. It acknowledges that foreseeability in contract is considered at the time of the contract and that the consequences foreseeable to the defendant are also foreseeable to the injured party and therefore the responsibility ought not to be cast entirely onto the defendant.

Finally, this position of having a narrower liability in contract is logical considering the difference between tort and contract’s remedial measures. Tort compensation is retrospective and focuses on returning a plaintiff to the position they would have been had the tort not occurred.[30]Conversely, contract focuses on putting the injured party in a position they would have been in had the contract not been breached and aims to give them the benefit of the bargain.[31]It is argued that the damages available in contract are far more speculative and discretionary than compensation in tort and thus, there should be a higher threshold for contract than tort. It is for the above reasons that this piece suggests Irish law should follow Lord Reid’s position.

 

Conclusion

This piece has analyzed and critiqued the common thread of foreseeability that undergirds both tort and contract and it made the point that foreseeability is necessarily fluid and cannot easily be condensed into a single test. The recommendation is that semantic distinctions between ‘contemplation’ and ‘foreseeability’ ought to be discarded. It is illustrated how tort and contract are fundamentally different categories of law with different needs and accordingly this essay accepted Lord Reid’s position which recognizes and incorporates said differences. Finally, the analysis of Lord Denning’s position and ultimately concluded that we ought to recognize that remoteness in tort and contract must not be equated because they are substantively different and require different levels of remoteness.

 

 

[1]H Parsons (Livestock) Ltd v Uttley Ingham & Company Ltd [1978] QB 791

[2]C Czarnikow Ltd v Koufos (The Heron II) [1969] 1 AC 350

[3]Banks McDowell, “Foreseeability in Contract and Tort: The Problems of Responsibility and Remoteness” (1985) 36 Case W. Res. L. Rev. 286, 288.

[4]ibid 290.

[5]ibid.

[6]ibid 296.

[7]Parsons (n 1) 792.

[8]McDowell (n 3) 291.

[9]ibid.

[10]ibid.

[11]Lord Hoffmann, ‘The Achilleas: Custom and Practice or Foreseeability’ (2010) 14(1) Edin LR 47.

[12]Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48.

[13]Hoffman (n 11)

[14]ibid. 55.

[15]Mark Stiggelbout, ’Contractual Remoteness, ‘Scope of Duty’ and Intention’ [2012] LMCLQ 97.

[16]Parsons (n 1) 794.

[17]John Cartwright, “Remoteness of Damage in Contract and Tort: A Reconsideration” The Cambridge Law Journal, Vol. 55, No. 3 (Nov., 1996) 488, 493.

[18]Heron (n 2)

[19]ibid.

[20]Cartwright (n 17) 493.

[21]Parsons(n 1) 794.

[22]ibid.

[23]Demetrios Hadjhambis, “Remoteness of Damage in Contract” (1978) The Modern Law Review 41 4 483.

[24]McDowell 311.

[25]Hadjhambis (n 28) 485.

[26]Ibid 486.

[27]ibid.

[28]McDowell 311.

[29]Heron (n 2) 353.

[30]Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158.

[31]Ibid.

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The CervicalCheck Scandal – A Legal Analysis

The CervicalCheck Scandal - A Legal Analysis

India Kelly

Introduction

Assistant secretary at the Department of Health, Donal Devitt, said at the Hepatitis C Tribunal in 1997 that when he was first told of the infection of several Irish women by contaminated blood, instinct told him that this was going to be the biggest medical disaster in the history of the state.1 This title, however, has been challenged by the recent CervicalCheck scandal.

A retrospective audit of cervical cancer screenings showed that 221 women’s smear test readings missed abnormalities, leading to the development of cervical cancer. The results of the audit were not disclosed to 162 of these women, 20 of whom have since died.2

Following this revelation, a number of women and their families began litigation, and an investigation was issued by the Department of Health. In this article I will discuss the findings of the Scally Report and the Phelan v HSE case to analyse the legal responsibilities and failures of those involved in the CervicalCheck scandal.

Cervical Cancer Screening

Cervical cancer is an abnormality in the cells at the neck of the womb caused by the Human Papilloma virus (HPV). This can usually be detected by taking a sample of the affected cells in a ‘pap smear’ or ‘cervical test’ and using a machine to identify the presence of HPV.3 In Ireland, the HSE, through the CervicalCheck programme, offers women aged 25 to 60 this test every three to five years.4 The HSE contracts with GPs to carry out the pap smear. Contracts are also arranged with a number of private laboratory companies in the United States5 and one public hospital in Ireland6 to carry out the test which then identifies if HPV is present. The results of the laboratory tests are communicated back to the women and their test-taker by CervicalCheck.7

In 2011 CervicalCheck issued an audit of screening results. The purpose of the audit was primarily to be used by the laboratories for educational purposes.8 In his report, Dr. Scally said that;

‘The CervicalCheck audit was established with laudable aims but planning, governance and documentation appear to have been inadequate. There was little or no anticipation of the challenges which would arise when results were reviewed. Participating laboratories were not given a specification of how to undertake reviews and did not do so consistently. Analysis of the results was sporadic and informal. A trend was identified regarding reviews at Quest but no adequate steps appear to have been taken to define whether this represented a genuine issue and, if so, what actions should be taken to resolve it.’

Non-Disclosure of Audit Results

Prior to 2014 CervicalCheck had no policy relating to open disclosure.9 The issue of disclosure was eventually discussed at a meeting of the CervicalCheck Executive Management Team in January 2016. It was decided that ‘disclosure of the outcome of the audit to the treating health professional would be the best option’.10

CervicalCheck considered that the duty of disclosure fell with the affected women’s doctors. According to Dr. Scally, this remains in keeping with international advice. The responsibility of these doctors to then disclose the results of the audit to the affected women is outlined in both HSE and Medical Council policy.

The HSE defines open disclosure in a document titled ‘Open Disclosure: National Policy’ as:

‘An open, consistent approach to communicating with service users when things go wrong in healthcare. This includes expressing regret for what has happened, keeping the service user informed, providing feedback on investigations and the steps taken to prevent a recurrence of the adverse event.’11

This appears to be a definitive statement of the HSE’s commitment to informing patients of medical errors accompanied by an apology. However, later on in the document this is contradicted:

‘When a clinician makes a decision, based on his/her clinical judgement, not to disclose to the service user that an adverse event has occurred, the rationale for this decision must be clearly documented in the service user’s healthcare record and this decision may need to be reviewed by the clinician at a later date, depending on the circumstances involved.’12

This discretionary power given to a doctor’s ‘clinical judgement’ completely overrides the previously firm commitment to open disclosure.

The Medical Council, the regulatory body of medical practitioners in Ireland, also provides a policy document in relation to open disclosure. While not a legal code, the document outlines a set of principles that all doctors are expected to follow and adhere to. It states that:

Patients and their families, where appropriate, are entitled to honest, open and prompt communication about adverse events that may have caused them harm. When discussing events with patients and their families, you should: acknowledge that the event happened; explain how it happened; apologise, if appropriate; and assure patients and their families that the cause of the event will be investigated and efforts made to reduce the chance of it happening again.’13

The use of the word ‘should’ rather than ‘must’ means that the individual doctor has no absolute duty to follow open disclosure.

Both the HSE and the Medical Council are contradictory in their apparent support of open disclosure with the absence of any absolute requirement to disclose error.

It is thus unsurprising that there was confusion and misdirection when it became apparent that women had not been correctly diagnosed.

Disputes between a number of doctors and CervicalCheck broke out following the issue of letters detailing results of the audit in February 2016. The disputes concerned whether the women should be informed at all, and who should be responsible for delivering the news to the women. That the woman herself might have a say in the matter was not discussed.14

Vicky Phelan & Jim Phelan v HSE & CPL Inc

Correspondence showing an example of such a dispute has been made public through the case brought by one woman affected by the audit. Vicky Phelan began litigation after it became apparent her 2011 smear test result was incorrect. She was diagnosed with cervical cancer in 2014, but was not informed of the review or audit until 2017.15

This case was the first of a number brought against CervicalCheck and the laboratories contracted to carry out smear tests. The main issues in these cases were allegations that the smear tests had been negligently read and a failure to disclose to the women and their families the results of audits carried out on the smear tests when cervical cancer had been diagnosed.16

Ms. Phelan’s claims for aggravated and exemplary damages against the HSE were denied and the case struck out.

A settlement was made without admission of liability for €2.5 million against Clinical Pathology Laboratories Inc, the US firm which had carried out the test for HPV.

Assigning Liability

Though this case was successful in securing financial compensation and bringing public attention to the issue, it did not solve the question of liability.

The Minister for Health announced in December 2018 that, on the advice of Mr Justice Charles Meenan in his Report on an Alternative System for Dealing With Claims Arising From CervicalCheck, an independent statutory tribunal to deal with claims arising from the CervicalCheck scandal will be set up in the near future. The aim of this tribunal will be to assign liability and seek redress. Until the results of such a tribunal are published, we must use the advice Mr. Justice Meenan to investigate potential liability.

In his Scoping Inquiry Dr. Scally explains that there will always be a margin of error involved in cancer screeningresults known as “false negatives”.17 Thus, a number of women will always be reported as having no evidence of HPV in their cells. This does not indicate negligence on behalf of the laboratories carrying out the test. Mr. Justice Meenan says that ‘for a woman – or her family to establish negligence evidence would have to be given from a suitably qualified expert that the reading of the smear fell below the appropriate standard required. Thus where a woman develops cervical cancer following a false negative this is not, of itself, sufficient to prove negligence.’18

The contracts between CervicalCheck and the US laboratories contain indemnity clauses which cover false negatives, as well as dispute resolution mechanisms.19 There may be issues between CervicalCheck and the laboratories that are not covered by the indemnity where liability may be assigned.

With regard to the liability of CervicalCheck and individual doctors for non-disclosure, Mr. Justice Meenan’s assertion that ‘the legal right of a patient to be informed of the result of an audit is the subject of some legal debate’20 is salient, as evidenced by the contradictory policies I have discussed. The withholding of cancer diagnoses from women whose lives were at risk is incontrovertibly morally wrong, but it will be up to the tribunal to establish if it was legally wrong.

Conclusion

It is clear from the cases and reports I have discussed that there must be a statutory duty of open disclosure for both individual doctors and the organisations under which they operate. An absence of definite policy on open disclosure has led to years of argument and uncertainty which cost the lives of 20 women and caused irreversible distress, upset and anger. A requirement for women affected by CervicalCheck to undertake legal proceedings to establish their medical record is unacceptable, and will no doubt have serious implications for their trust in the medical profession. I sincerely hope an independent tribunal will be established as soon as possible, so that women and their families may have their cases heard in a sensitive, dignified, and timely manner.

1 Aine Keane, ‘Ireland's greatest medical disaster’ An Phoblacht (Dublin 1997).

2 Paul Cullen ‘HSE’s CervicalCheck review flawed, says Scally’ Irish Times (Dublin, 11 October 2018).

3 Dr. Gabriel Scally, Scoping Inquiry into the CervicalCheck Screening Programme: Final Report (Department of Health, 2018) ch 3.

4 ibid ch 5.

5 Quest Diagnostics Inc, Clinical Pathology Laboratories Inc, and MedLab Pathology Ltd amongst others.

6 Coombe Women & Infants University Hospital, Dublin.

7 Scoping Inquiry ch 5.

8 ibid ch 8.

9 Scoping Inquiry ch 11.

10 ibid.

11 HSE Open Disclosure: National Policy (2013).

12 ibid para 2.7 p 7.

13 Comhairle na nDoctúirí Leighis, ‘Guide to Professional Conduct and Ethics for Registered Medical Practitioners’ (2016, 8 edn) 43.

14 Scoping Inquiry ch 11.

15 ‘Woman with terminal cancer gets €2.5m High Court settlement’ Irish Times (Dublin, 25 April 2018).

16 Mr. Justice Charles Meenan, Report on an Alternative System for Dealing With Claims Arising From CervicalCheck (High Court, 2018) ch 2.

17 Scoping Inquiry ch 3.

18 Report of Mr. Justice Charles Meenan ch 4.

19 ibid.

20 ibid.

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