The Gazette 1988

GAZETTE

JANUARY/FEBRUARY

19

mass c l a i ms has n ow been e s t a b l i s h h ed in Ireland, and presumably sets a precedent for f u t u r e t r aged i es of such dimensions. Also the number of interrogatories and the extensive discovery process available in the US is not a feature of the Irish system. Aga i n st t he US c he c k l i st therefore the problems which we might consider looking at more closely as factors which effect our insurance costs are the following: (I) the imposition of full liability on a defendant for a small amount of fault under the doctrine of joint-and-several liability. Is this fair? (ii) greater disciplining of licensed professionals w i th a review perhaps of the desirability of the self-regulatory sys t em ope r a t ed by p r o f e s s i onal bodies themselves. (iii) the sugges t i on that juries should be given guidelines as to t he app r op r i a te range of damages suitable in personal injury cases. In addition to these we could also take on board, perhaps, t he suggestion that further studies are required on the jury awards, on the " f a u l t " system of liability and on the insurance factor to assess their impact on the whole litigation process. The major flaws in the USA are not features of our system and perhaps our system of compen- sating injured persons, while not perfect by any means, should not compel us to adopt hasty piece- meal reforms wi t hout taking a full comprehensive overview of the situation. We must avoid " t he j ump - u p - a n d - d own s y n d r ome" which might propel us into a state where our last position is worse than our first. • Executorship Accounts Are a major headache for many solicitors We specialise in them W. A. Hennessy & Co. Chartered Accountants 5, Leeson Park, Dublin 6. Tel: 971237 Telex: 265451 MONREF G Ref: EIM 656

regard to the constitutionality of some of these Statutes. In parti- cular the arguments wh i ch were rejected in the Federal Courts above have found favour in many of the State courts. For example CAP statutes have been struck down as being unconstitutional in eight of the fourteen states where they have been adopted. Again, in seven out of the eleven states which have adopted pre-trial screening of juries in medical malpractice actions the reforming legislation has also been declared unconstitutional. When a state legislative act has been struck down by the state Supreme Court then of course the state legislature has to consider once more how it will respond to the "insurance crisis" problem now back on its agenda. Sometimes it will draft new legislation wh i ch will attempt to take into account the judicial objections voiced in respect of the first act, but this new legislation, of course, may, in turn, be subjected to judicial scrutiny and runs the risk of being declared unconstitutional also. And so the process begins once more. It is interesting in view of the above and in view of recent reform in this counry to examine Irish tort law against the check list of reforms suggested in the USA. As will be seen the picture that emerges is somewhat reassuring. W i t h r ega rd to pe r ce i ved problems in the US tort system the following comments should be made in the Irish context. Insofar as conce rn in the US i den t i f i es u n l i m i t ed awa r ds, pun i t i ve damages and the contingent fee as major causes for concern, these three factors do not figure as major problems in the Irish scene. We do not have the contingent fee, (and the t wo Senior rule is about to be modified); punitive damages are available only in rare situations; and in personal injuries a CAP exists for gene r al d ama g es ( £ 1 5 0 , 0 00 according to Sinnott -v- Quinns- worth). Outside of Cork the delay factor does not appear to be inordinate nowadays w i th most cases getting on within a year or a year and a half from the date of setting down. Moreover, as has been seen in the Stardust Tribunal, a different method of handling Lessons for the Irish Legel System

furthered the stated legislative objectives. Accordingly, whether CAO's, shorter limitation periods, jury screening, limiting the con- tingent fee, etc., were appropriate and adequate responses by the legislature in response to the so- called insurance crisis would not be scrutinised. In general, the Supreme Court has adopted the "rational basis"- position in regard to reviewing these statutes, that is to say, that it will not review this legislation if there appears to be some sem- b l ance of r a t i o n a l i ty to t he legislative measure in question. This " hands o f f " position is to be con t r as t ed w i t h the Supreme Court's approach to non-economic legislation, for example, relating to f undamen t al rights where any interference will be looked at by the Court w i th suspicion. In such cases, there is no presumption of constitutionality. Legislative inter- ferences in this area are suspect from the outset and the State has a heavy onus placed on it to justify the interference. For this reason, some lawyers have attempted to classify the tort reforms as being non-economic in nature, affecting the fundamental. rights of the citizen and thereby inviting the Supreme Court to view them w i th suspicion. This approach has not been successful. At the State level, however, a very different picture emerges w i th

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