The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND

Vol. No. 79 No. 8

October 1985

Stardust — A Step Towards Justice?

HE Law Society has already welcomed the decision

of the Government to set up a special Tribunal to

adjudicate on the claims arising out of the Stardust

tragedy. Injured and next of kin are being offered a

speedier and simpler process for establishing the amounts

of their compensation as an alternative to the uncertainty

and delays necessarily attaching to litigation in the

Courts.

Given the currency of rumours that the insurance cover

of the principal defendants, who were limited companies,

would be easily exhausted, it had become clear that

claimants would have to find financially stronger

defendants in order to be sure of collecting the full

amount of any awards. Dublin Corporation, the State,

consultants, designers and suppliers of materials were in

many cases, therefore, added as defendants. This tactic,

aimed at ensuring the enforceability of an award,

necessarily detracted from the simplicity of the cases.

Defences, both technical and substantive, became

available to the additional defendants and the complexity

of the litigation increased, thus slowing down the whole

process.

In this context and with more frequent reminders being

made of the assurances given by politicians from all sides

at the time of the tragedy, it was clear that an alternative

solution to the Courts was badly needed. It can be argued

that, with the Attorney General and, indeed, the State

being defendants in some of the cases, it would be

improper for them to be involved in promoting any

alternative tribunal. If it is improper, it is, surely, only a

technical impropriety, which can be excused in the light of

the grave need to provide a solution to what is in danger of

becoming a public scandal.

It is true that there are some rough edges to the

proposal, most notably the entitlement of the defendants

in any High Court proceedings to seek costs from the

plaintiffs on the discontinuance of such proceedings. It is

to be hoped, however, that the defendants will recognise

that the worst thing that could happen to them would be

to win one of the cases. The costs which the various

defendants have already incurred are no doubt

considerable, but they are, in all probability, only, a

modest percentage of the total costs which would be

involved in defending each case through the High, and

possibly, the Supreme Courts.

The irony is, of course, that if the defendants or any of

them were to succeed in their defence in any of the cases,

the Order for costs to which they would be entitled would,

in all likelihood, be unenforceable. So the defendants are

faced with the choice of either waiving the costs that they

might be entitled to at this stage, or facing the risk of

incurring much greater expense if they do succeed in

defeating a claim.

It cannot be emphasised too strongly that nobody is to

be asked to abandon his or her right to pursue a claim

through the Courts. Only those who are dissatisfied with

the amount of the Tribunal's award have to decide

whether to take it or to go ahead with their Court

proceedings. Hopefully, the level of awards will be seen by

the claimants as providing adequate compensation. It is

laudable, however, to find that solicitors for some of the

plaintiffs have indicated that they are prepared to

continue with the litigation on behalf of any claimants

who wish to pursue their cases.

One of the less satisfactory aspects of the matter is that

some of the leaders of the claimants' groups whose

diligence and persistence on behalf of their members have

been largely responsible for these recent developments

have been quoted as, at best, not encouraging claimants

to avail of the Tribunal. They have argued that the

claimants' objectives also included the implementation of

the Tribunal's report, the attribution of blame and the

punishment of those responsible. Pursuing personal

injury claims in the Courts is unlikely to achieve any of

these aims. The Courts have no power to order the

implementation of the Tribunal's recommendations and

certainly not as part of a judgment in a personal injury

claim. The finding of negligence by a jury is hardly the

sort of "blame" the claimants have in mind. Again, a

Judge in a civil action cannot direct that the civil

prosecution he brought against any person, but can

merely recommend it to the Director of Public Prosecu-

tions. In these cases, the Director of Public Prosecutions

has already decided, following the publication of the

Tribunal's report, that no prosecution should be

instituted.

While accepting that monetary compensation is an

inadequate remedy for the claimants, there must at least

be a strong argument that the payment of compensation

and the closing off of the claims process as quickly as

possible is desirable, not only from the financial point of

view, but also would be of general benefit to the

claimants.

The one further step that is open to the State to take

which would go further towards alleviating the distress of

the claimants is the rapid implementation of those aspects

of the Tribunal's report which remain outstanding.

•

265