cearta.ie – Page 94 – the Irish for rights

Bell Lines logo, via flagspot.net By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In particular, it is the process by which one party is substituted for another so that the first party may enforce that other’s rights against a third party. In the classic triangular fact pattern, it arises where a creditor has rights against a debtor, the third party pays the creditor, and is then subrogated to the rights of the creditor against the debtor. In Bell Lines v Waterford Multiport Ltd [2006] IEHC 188 (28 April 2006) rvsd [2010] IESC 15 (18 March 2010), unemployment agencies in the UK paid various entitlements to UK-based employees of an Irish company in liquidation, and successfully sought to be subrogated to those employees’ preferential claims against the company in the Irish liquidation.

The litigation raises, but does not answer, some rather profound questions about the nature of subrogation. In Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, [1998] UKHL 7 (26 February 1998) and Bofinger v Kingsway (2009) 239 CLR 269, [2009] HCA 44 (13 October 2009), the House of Lords and the High Court of Australia took different approaches to the relationship of unjust enrichment and subrogation (see my previous posts).…

Mechancial turks, safe harbours, and immunities – liability for defamatory comments on websites

12 October, 201028 November, 2013

| 15 Comments

| Defamation, Defamation Act 2009, Media and Communications

Eric Goldman has recently blogged about a US case in which a local tv broadcaster was not held liable in defamation for a comment posted on its website by a viewer. More recently, Rebecca Tushnet discussed a case in which the review website Yelp was held not liable in defamation for hosting a review to which its subject objected (see also CYB3RCRIM3 | Eric Goldman | First Amendment Coalition | Internet Defamation Law Blog | Techdirt ). (Indeed, review authors will usually be able to rely on the defence of fair comment – or honest opinion – anyway). More recently still, Lilian Edwards has blogged about her presentation on internet intermediaries and legal protection. These posts got me thinking about how such disputes might play out as a matter of Irish law.

[After the jump, I discuss the basic position at common law and under the Defamation Act, 2009 (also here), and then I compare and contrast US ‘safe harbor’ defences with EU immunities.] …

The manifest destiny of an ill-founded application to the ECHR

9 October, 2010

| 1 Comment

| Defamation

I have written twice before about the libel action Keith Burstein took concerning a newspaper review of his opera Manifest Destiny. In Associated Newspapers Ltd v Keith Burstein [2007] EWCA Civ 600 (22 June 2007) the Court of Appeal held the newspaper’s defence of fair comment must inevitably succeed, and made an order dismissing Burstein’s claim. He failed to obtain leave to appeal to the House of Lords, so he applied to the European Court of Human Rights in Strasbourg. I said at the time that I fully expected the ECHR to dismiss the case as manifestly ill-founded. Now comes news that my crystal ball was functioning well: the ECHR has indeed declined to consider the case, much to Burstein’s inevitable chagrin.

I haven’t been able to track down the ECHR decision on admissibility, so if anyone out there has it and could send it to me, I would be very grateful indeed.…

Grievance poses academy ‘threat’

8 October, 201031 January, 2013

| 4 Comments

| Academic Freedom, Andrew Croskery, Contract, Grading and Marking, Litigation, Universities

Further to my two previous posts concerning student challenges to degree classification, there is a piece in this week’s Times Higher Education on the judicial review proceedings taken by Andrew Croskery challenging his degree results in Queen’s University Belfast. The piece contains some interesting reactions to the challenge [with added links]:

Grievance poses academy ‘threat’

… Bahram Bekhradnia, director of the Higher Education Policy Institute, warned that if the case were successful it could unleash a wave of similar challenges. “Of course it is important that universities do right by students. But if a student feels they are getting inadequate supervision, contact or anything else, they should deal with it up front and at the time. Otherwise the floodgates will be opened and it will be impossible to judge genuine cases from chancers,” he said.

Roger Brown, professor of higher education policy at Liverpool Hope University, described the case as a battle between academic authority and the marketisation of higher education. He said a ruling in favour of Mr Croskery would be “disastrous” because it would undermine universities’ academic authority. He noted that legal challenges of college grades were quite common in the US but said British courts had taken the view in similar previous cases that universities were in the best position to make academic judgements.

…

Is The Rights’ Future writing’s future too?

6 October, 20106 October, 2010

| 2 Comments

| Human Rights

Conor Gearty, via his site. A perennial problem in academic writing is the lack of feedback along the way. Academics can run ideas by other academics and in class; works in progress can be presented at research seminars; and published papers can provoke published replies. In response, the original idea can be refined, and the process of iterative development can continue. One way to short-circuit the process is to publish ideas in early draft form on blogs and similar sites (and many of the posts on this site are well on their way to incorporation into academic articles). Conor Gearty (pictured right) has come up with a really interesting way to go further, a collaborative means by which he can garner, engage with, and incorporate significant online feedback on his writing during the course of the writing.

Moreover, what he will write by this means is very important: a book entitled The Rights’ Future in which he will consider nothing less than the future of human rights. In his view, they are

the only potentially radical and genuinely universal idea available to us in this post-socialist world of fear, money and lost souls. Too important to be left to lawyers but too subversive to be handed over to the politicians alone, human rights need the intellectuals, the workers and the streets if their model of a new kind of society has any chance of beginning to be built.

…

Tory Island and Unjust Enrichment – the judgment

5 October, 201028 November, 2012

| 1 Comment

| Restitution, Tory Island

I’ve previously blogged (1 | 2 | 3) about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. It was a colourful case, in which interesting unjust enrichment issues arose, but I was unable to say more on that aspect of the case as no written judgment was made available at the time. However, it has recently been uploaded to the Courts Service judgments database. In Presho v Doohan [2009] IEHC 619 (17 July 2009) Murphy J explained what happened to the elusive unjust enrichment issue:

6. Unjust enrichment
While not pleaded, the court considered, in addition to the circumstantial evidence, whether and if so, to what extent it was proper to consider restitution either as a quasi contractual or equitable remedy. The court allowed an opportunity to the plaintiff to consider an amendment. No such amendment was made, though the defendants made written submissions.

The court does not propose to address the matter.

…

Student challenges to degree classification, and examiners’ academic freedom – redux

23 September, 201017 September, 2020

| 9 Comments

| Academic Freedom, Academic judgment, Andrew Croskery, Contract, Grading and Marking, Litigation, Universities

No sooner had I published yesterday’s post on student challenges to degree classification, and examiners’ academic freedom, than Afua Hirsh blogged that it’s not just law students who are learning how to sue. Against the background of the QUB case which I discussed in that post, she gave many other examples of cases in which students sued their universities because they had performed poorly in their degrees. (Indeed, yet another may be brewing here). In many of the cases Afua discusses, the students were successful in their claims. But probably the most important case she discusses concerned a Belgian DPhil student who claimed £3m from Oxford University for failing his thesis. George Van Mellaert complained about the examiners and about the university’s procedures. Unlike many of the other cases to which Afua referred, this case did not have a happy outcome for the student. As she said:

The court was less impressed with this claim, stating that “the claimant’s thesis is a matter of academic judgment with which it would be inappropriate for the court to interfere”.

Almost as soon as I had finished reading her article, I received an email from Martin George, with the full text of the decision in George van Mellaert v Oxford University [2006] EWHC 1565 (QB) (29 June 2006).…

Student challenges to degree classification, and examiners’ academic freedom

22 September, 201017 September, 2020

| 9 Comments

| Academic Freedom, Academic judgment, Andrew Croskery, Contract, Grading and Marking, Litigation, Universities

Some time ago, I blogged about the question of whether a low mark is a breach of contract. A little while ago, in a gallimaufry (omnibus) post, I briefly returned to this issue. The context was a US case, Keefe v New York Law School (17 November 2009) [update: 25 Misc 3d 1228(A) (2009) aff’d 71 AD3d 569 (2010)], but now it seems that the issue has arisen rather closer to home. Yesterday’s Irish Times tells the story:

Graduate takes university to court over degree results

A Queen’s University [Belfast] graduate yesterday launched a High Court challenge to his degree classification. In one of the first cases of its kind, Andrew Croskery has brought judicial review proceedings over his lower second-class honours classification.

Mr Croskery, from Co Down, claims if he had received better supervision he would have instead obtained an upper second-class in his electrical engineering degree.

Read more here.

There is similar coverage on the BBC and UTV; in the Belfast Telegraph, Cherwell, the Guardian (also here, on the Human Rights in Ireland blog), and the Mirror; and commentary on the Cantakerous, Gullibility, and Learning Architecture blogs.…