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IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEENS BENCH DIVISION 05/022648/A01
BETWEEN

CHRISTINE MEYLER AS AN EXECUTOR OF THE ESTATE OF JOSEPH PATRICK FERRIS (DECEASED)
Plaintiff/Respondent
and 
JOSEPH FERRIS
Defendant/Appellant 
                                                                     
                                                         
CASE STATED
UNDER ARTICLE 62 (1) OF THE COUNTY COURTS (NI) ORDER 1980 IN RESPECT OF AN APPEAL TO THE HIGH COURT FROM A DECREE OF THE COUNTY COURT FOR THE DIVISION OF FERMANAGH AND TYRONE OF 30 MARCH 2007.
_____________________________________________________________________
SKELETON ARGUMENT OF EVIDENCE BY DEFENDANT/APPELLANT

1.I accompanied my late father Charles Ferris (deceased 9th October 2005) on all his consultations with solicitor Mr. James Montague from lodging an objection at Land Registry against Folio 2974 in response to advertisement dated 8th October 1986.

2.My late father outlined to solicitor James Montague, that comparable persons to himself, i.e. ‘the eldest son’ inherited the farm of land as of inheritance right. And from the death of his father in 1945, this applied to himself.  I remember James Montague explaining that as now we had ‘direct rule’ the 1925 Land Registration Act of England applied and ‘the eldest son’ no longer was entitled to inherit the farm of land.

3.My late father explained as to how from 1945 to the death of his mother in 1962, he performed all the functions of ‘full owner’ with respect to all aspects of ownership. His sister Ellen Dolan (nee Ferris) remained at home, but she was in receipt of money from her husband Tom Dolan in USA and there was always a possibility of Ellen leaving and going to live with her husband. My father’s other two sisters, Mary Ferris, (deceased 1975) and Bridget Ferris (deceased 2005) worked out in various jobs in Omagh and took little or no part in farming. My late father also explained how his brother Joseph Ferris, lived in Belfast and worked there as a male nurse. My late father explained how a Mr Joe Harding, had lodged in the family home from 1950 and he was treated as ‘one of the family’ and actually purchased the adjoining farm for and on behalf of the Ferris family in 1962.

4.My late father had an ‘exceptional’ memory for local history and unfortunately, many of the meetings with solicitor James Montague, would also have included a wide range of historical events. An example, was the gruesome murder of a Barrister O’Donnell opposite the Court House in Omagh by an ‘aggrieved farmer’ called McCrossan from ‘Dregish, County Tyrone’ either at the end of the 1800s or beginning of 1900s. I recall, my late father outline, how Mr. McCrossan, was a ‘powerful build of a man’ who had attached a very long handle to a ‘gaffe for killing salmon’ and as barrister O’Donnell walked past the shop window, Mr McCrossan, who was occupying an upstairs room used the ‘gaffe’ and hooked barrister O’Donnell by the throat and lifted the barrister off his feet until he bled profusely and fell to his death on the pavement below.

5.My late father had consultations with a barrister, I believe his name was ‘McRae’ (a very thin delicate man) on two occasions at Omagh Court House in early 1989.  My late father provided extensive detail of all the children of Anne Ferris deceased 1925 and how the Land Registry affidavits of Bridget Ferris, Joseph Ferris and Joe Harding, contained many ‘false statements’. My late father also explained how Mr. Harding had apologised for the ‘false statements’ saying that he made his affidavit under pressure from Bridget Ferris, who begged him on her knees to do so as she felt her life was in danger from her brother Joe Ferris.

6.I attended with my late father at Omagh Court on 30th May 1989, in response to a letter from solicitor James Montague dated This was incredible given the FACT that the case was Adjourned on 5th May AND Mr. Montague had written a one line letter to my father Charles Ferris on Tuesday 9th May 1989. Dear Mr Ferris, We would advise that your case has been adjourned until Tuesday 30th June 1989. Yours faithfully J. McNulty & Co.

7.My late father and I arrived early for the above court hearing on 30th May 1989. However, I became alarmed at approx 9.45am as neither solicitor James Montague nor barrister ? McCrea were in the court. At this time Omagh Courthouse was like ‘Fort Knox’ with the level of RUC security, I had to seek permission on three occasions to phone Mr. James Montague, but I was unable to speak with Mr. Montague. I left frantic messages with the office staff and solicitor  James Montague arrived in Omagh Court at approx 10.15am. My late father asked about the barrister and solicitor James  Montague explained that his office had made an administration error and ‘he had forgotten about the court case’. My father instructed to make an application for an adjournment.

8.At the opening of the court hearing, solicitor James Montague, asked for an adjournment, but this was ‘forcefully’ rejected by barrister Fitzpatrick for the Plaintiff’s. The County Court Hearing proceeded under these conditions, with barrister Fitzpatrick outlining, that solicitor James Montague, was ‘quite capable’ of defending the case.

9.The hearing continued from approx 10.45 to approx 12.30pm. The atmosphere in the hearing was ‘very hostile’ and Judge Babbington warned Joseph Ferris and my father on several occasions regarding their ‘verbal outbursts’ eventually,  Judge Babbington, stated that the next ‘interruption’ would result in a ‘charge of contempt of court’ and exclusion from the hearing. At approx 12.30pm Judge Babbington, stated ‘the court will recess to I believe 1.30pm’.

10.At approx 1.30 pm barrister Fitzpatrick, began to provide more detailed ‘legal argument’ namely around issues such as ‘the defendant Charles Ferris, should not be in court today, has no rights to be in court, etc. etc.

11.After approx five minutes, Judge Babbington asked barrister Fitzpatrick, “How are you going to deal with the ‘inheritance rights’ of Charles Ferris the objector?” Barrister Fitzpatrick, provided a detailed ‘legal preamble’ with respect to ‘no entitlement’ and Judge Babbington asked the same question again saying, “I am asking you this for the second time?” Barrister Fitzpatrick again provided a detailed ‘legal preamble’ with respect to ‘no entitlement’. Judge Babbington, then stated, “I am going to ask you for the third and final time, how are you going to deal with the ‘inheritance rights’ of Charles Ferris, the objector?” Barrister Fitzpatrick, made no reply and after a few minutes, Judge Babbington stated, “Application Dismissed and No Order as to Costs.”

12.After the hearing outside the entrance to the courthouse, my late father ‘thanked and congratulated solicitor James Montague’ James Montague, rebutted these and said, “You did not do yourself any favours in there!”. My late father asked for details, but none were provided. At a consultation with solicitor James Montague in his office some 15 minutes later, James Montague, accepted a telephone call from solicitor Christine Meyler, and we could hear her raised voice, but could not make out any words distinctly. Solicitor, James Montague, explained after the telephone call, ‘business must go on’. My late father asked as to what would happen now and solicitor James Montague stated, “there will most likely be an appeal to the High Court, ‘this case is costing Bridie a lot of money’ with an appeal to the High Court.”  My late father replied, “it doesn’t need to cost Bridie any money, if she will write to me and give me an apology for ‘treating me like a black sheep’ I will then call and see Bridie, as I never had an argument or disagreement with her in my life?”

13.It is my recollection that on Saturday 24th June 1989, that I received a telephone call from my mother stating, “we thought you might have been up last night, there is a letter to your father from Montague about a settlement,” I called up and my late father and I discussed about the prospects of a settlement. My late father was still insistent, that he required ‘a letter of apology’ and after some persuasion agreed for me to make an appointment with James Montague.

14.It is my recollection, that I was able to arrange the appointment for one day in the week commencing 26th June 1989. During this meeting solicitor James Montague stated, “Charlie, there is an offer, but I think you will not agree with it, there is an offer of seven ninths to Bridie and two ninths to you and your brother Joe is withdrawing any legal claim,” My late father expressed his surprise at his brother Joe withdrawing his legal claim and mentioned the ‘hostile’ exchanges during the court hearing on 30th May 1989. My late father again said, “I told you before and I told my son on the way here, I will not accept any settlement, until I get a letter of apology,” Solicitor James Montague, then stated, “I will send a letter of refusal, but to keep us both right, will you sign that the offer has been put to you,” My father agreed and signed the document, after a few minutes, I asked, “can I see the offer?” and solicitor James Montague provided me with the document, I read over the offer and then said, “I would be afraid, in case your letter of refusal and the signed document, become separated, I think you should also write across the document, ‘offer refused’ or words to that effect?” Solicitor James Montague, wrote some form of words across the document, using his fountain pen, I remember, James Montague, saying “Joe’s happy now Charlie!” I believe, I then explained to James Montague that I was intending to buy a house near Altnagelvin in Derry and Mr. Montague agreed to take my business.

15.I explained to my late father that I would enquire of James Montague on a regular basis, with regard to any future offers or any appeals to the High Court, saying “this will kill two birds with the same stone,” I provided the details of my house purchase to solicitor James Montague in August 1989 and completed the purchase in November 1989, with all bills being paid in December 1989. In early 1990, my wife Attracta, was involved in a car accident in Derry and I persuaded her to engage James Montague, but her dealings were mainly with Mr. Cathal Murray. I believe this case was settled in 1991 and again I kept contact with Mr. Montague and frequently asked as to the progress of my late father’s case. Mr. Montague, would usually respond, “the situation is at stalemate, I can’t get a barrister to take the case, because of the length of time and all the complications,”. I recall that in December 1992, I contacted solicitor James Montague, on behalf of my father as Bridget Ferris, had come to live with my brother Charles Ferris, as she stated, “Joe has threatened to kill me, and he is going to burn the house to the ground,” I remember, Mr. Montague stating to me, “your father will be delighted now,” I replied, “my father is not delighted, he is very concerned about Bridie’s safety,” I requested a home visit by Mr. Montague, but this did not take place, because there was a snow storm and Mr. Montague said he would not risk driving up into the hills.

16.I believe, Bridie Ferris remained with my brother Charles until after Christmas and then returned either end of January 1993 or early February 1993. My late father was still extremely concerned about Bridie’s safety and at a consultation with Mr. James Montague a ‘warning letter’ was sent to Joe Ferris. I did not enquire further after the letter from James Montague dated 27th January 1993, which states; ‘We think that these matter should now be resolved between the members of the family themselves.’ Apart from asking James Montague, as to how to frame a letter, as there was no ‘verbal contact’. James Montague, suggested writing the words ‘Without Prejudice’ at the top of any letter and this was the first time, I became aware of these words and their significance.

17.From December 1993 to May 1994, Bridie Ferris, resided with my brother Charles again because of ‘concerns for her safety’. On 20th May 1994, Bridie Ferris, provided a ‘Power of Attorney’ for my late father, but when solicitor Christine Meyler, visited some days later, solicitor Christine Meyler, refused to accept my father to act as ‘power of attorney’.

18.My late  father, my brother Charles and I met with Mr. Gibson at Land Registry around 1997 during this meeting Mr. Gibson stated that he ‘accepted’ that there was some ‘fraudulent aspects’ in the registration of Folio 2974 in May 1994.

19.Letter from Land Registry dated 17th June 2002 states; ‘I would again point out that two separate applications to Land registry are involved in this matter. The first in 1986, to which you refer in your second paragraph of your letter of 15th May, relates to an application under Section 53 of the Land Registration Act (NI) 1970, being a claim to ownership of the land by way of ‘adverse possession’.  The application was objected to by your father and was accordingly referred to the County Court for decision. The County Court dismissed the application and accordingly the application was dismissed by Land Registry.

20.Letter from Land Registry dated 17th June 2002 also states; A second separate application was made in May 1994, which has nothing to do with the prior application made in 1986, some 8 years previous. This application was made by way of an Assent executed by the personal representatives of the registered owner and registration was carried out in accordance with the terms of the Assent. Again, I would refer you to the provisions of  Article 18 of the Land and Deeds Order 1992, which is the law under which Land Registry is required to operate in this matter. It is not up to Land Registry, as I have stated, to question the authority of the personal representatives or their request for registration. Once again I would point out that this is a totally different application from the one which was referred to the county Court and which was dismissed and which was made some 8 years previous to 1994. Copy of Article 18 of the Land and Deeds Order 1992

21.I  carried out my own independent search of the Public Records Office in Northern Ireland in late December 2006 and I became  very concerned to find that there had been ‘fraudulent practice’ by the personal representatives of Anne Ferris deceased 1925. the Oath was sworn by Bridget Ferris & Joseph Ferris on 18th May 1994 and administered by a solicitor in the office of R. H. O’Connor & Company, Solicitors Omagh. I am able to prove ‘beyond all reasonable doubt’ that this ‘Oath’ was fraudulent and pejorative, as detailed below.  The following extract from the enclosed ‘Oath’ is very significant in relation to the fraudulent and pejorative content as detailed below. (c) a widow, leaving Patrick Ferris, John Ferris, James Ferris, Joe Ferris, Thomas Ferris, Charles Ferris. Catherine Ferris and Ellen Ferris her lawful and only children and only next of kin all of whom have since died and without grandchild or other descendant the issue of a predeceased child her surviving, that we are the Administrators of the personal estate of the said Charles Ferris under Grant of Administration dated 12.12.1985 granted forth of the District Registry at Londonderry. The above  extract from the  ‘Oath’ is incorrect and is at variance with the fact  that there were 33 ‘grandchildren’ of Anne Ferris.

22.It is my understanding that “Perjury is the "willful and      corrupt taking of a false oath in regard to a material matter in a judicial proceeding". As this ‘false oath’ was then provided to Royal Courts of Justice Belfast for the   purpose of Bridget Ferris and Joseph Ferris becoming the personal  representatives of Anne Ferris deceased 1925. The letter dated 2 January 2007 from ‘The Master Probate Office’ Royal Courts of Justice, states: ‘It is impossible for the office to verify the content of each application. Indeed the office is entirely dependant on the solicitors lodging the application to ensure the factuality of the content of the application. The oath document which contains all the relevant detail in relation to entitlement to the grant is a sworn document and as such will be taken by the office as a statement of fact (provided it is completed properly). (Stephen Watson 2nd January 2007)

23.I believe that on the evidence of ‘fraudulent practice’ and the evidence of ‘perjury’is sufficient cause for the County Court to ‘Set Aside’ the Registration of Folio 2974. on the basis that the Oath has therefore been incorrectly attested and on foot thereof, an illegal Assent was presented to Land Registry in May 1994 for the ‘Invalid Registration’ of Folio 2974.

24.I believe that information provide to me by my daughter Sinead Ferris after performing an Internet Search indicated that Mr Sean Magee Solicitor in office of Rodgers & Co may not have been providing a robust ‘interrogation’ of the ‘deceptive legal’ position of the ‘Plaintiff’ due to his past criminal record.

25.Judge David McFarland at Dungannon County Court stated:- “I have some concerns about the Assent executed in 1994. Section 34(2) of the Administration of Estates Act (NI) 1955 provides that “a personal representative may execute an assent vesting any estate or interest in .. land in the person entitled thereto”. Section 34 (1)(b) defines a “person entitled” as including “the persons or person (…) who (whether by devise, bequest, devolution, appropriation or otherwise) may be beneficially entitled to that estate or interest” The duty of any personal representative is to ensure that the person in whom they vest the interest of the deceased, is the person properly entitled to the interest. In this case the personal representatives appear to have assumed that the title in the land passed to the descendants of Charles, as Charles had acquired ownership in the land. Such ownership could not be by way of devise, bequest, devolution, or appropriation, so would have to fall into the “otherwise” category. After the County Court had rejected a s.53 application it is perhaps inappropriate for Bridget and Joseph P. to decide that Bridget is the person entitled to 7/9th of the estate, given that her entitlement under intestacy would have been as little as 1/24th (increasing to 1/12th if Joseph P’s interest is added.)”

26.Judge David McFarland also stated:- “I remain concerned about the title that the proposed purchaser (vendor?) can offer to any prospective purchaser. Her title derives firstly from the assent and then from the transfer, by way of gift, and finally as personal representative. Referring to the English 1925 Act (the equivalent to our 1955 Act), Snell’s Equity (13th Edition) states:”An assent….is to be taken as “sufficient evidence” that the person in whose favour the assent…is given or made is the person entitled to have the legal estate conveyed to him….but it is not otherwise to affect prejudicially the claim of any person rightly entitled to the estate…” It further states “Sufficient evidence” is not the same as “conclusive evidence”; a purchaser accordingly cannot rely on an assent if, on a proper investigation of title, facts come to his knowledge which indicate that the assent was not made in favour of the person rightfully entitled. The simple enquiry concerning the assent will alert any purchaser to a potential difficulty. A court sanctioned sale may operate to lull a prospective purchaser into a false sense of security into such an investigation of what would appear to be a defective devolution of the legal estate.”

27.Judge David McFarland also stated:- “In the circumstances I restrict my ruling in this case to a determination as to parties’ rights to such interest as Charles Ferris (Senior) may have had in the land comprised in the folio. His Honour Judge McFarland 30 March 2007.

28.Judge David McFarland also stated:- “The evidence of Joseph Ferris cannot be regarded as being particularly accurate. I use this neutral term, as I am uncertain as to whether he has simply lied, has fantasised about this case, or, as a result of his unhealthy obsession with the case, has rejected in his own mind any possible set of facts which contradict his version of what could have happened. Whatever the reason, he cannot be regarded as a witness of truth. He has already lied to the police about the alleged forgery, and, in my view, gave blatantly inaccurate evidence to the court. His assertion that as a member of the nursing profession he is bound to tell the truth does not require comment from me.”

29.I am still waiting for Judge David McFarland to register his concerns with The Nursing & Midwifery Council, the Regulatory Body for my profession, i.e. Registered Nurse.

30.At the commencement of my contacts with solicitor James Montague and other solicitors in October 1986, I had 100% ‘blind-faith’ in the legal profession. I now have minus 100% if that is possible, the ‘blatant corruption’ in my late father’s case and with my contact almost on a daily basis with ‘Victims of the Legal Profession’ from all over Ireland and through the website www.crookedlawyers.com and www.rateyoursolicitor.com from all corners of the English speaking world. I do not have any expectations of getting justice and from reading the brief extracts from the following four books by authors in Australia, there is little prospect of justice in these Islands, with some prospect, perhaps in the European Court of Human Rights.


http://flac.htmlplanet.com/news/books03oct04.htm Those interested in substantive legal reform ...  should find the following books of much interest 
LAWYERS OR GRAVE ROBBERS? by Diarmuid Hannigan    (www.lawyersorgraverobbers.com)

Diarmuid Hannigan a well-known Melbourne business man has awards for export achievement and innovative business practice. Born in Africa, Diarmuid shares in the dream of all who have come to this country - of a fair society that gives a fair go. Imagine his horror when everyday family matters turn into a nightmare of Privilege - yes, with a capital P. Read his story of an encounter with the Australian legal system and share his nightmare. It could happen to you..

Diarmuid Hannigan - not exactly your average client – scrutinises the conduct of a self-serving lawyer who is neither fair nor reasonable. In doing so the author reveals a profession that shuns transparency and accountability then calls upon his engineering qualifications and business experience to show a better way.

Flac (For Legally Abused Citizens)
A lawyer in charge of an estate uses apparently lawful obstructionism to deny beneficiaries their inheritance, so creating a situation which results in a costly and unnecessary dispute. The family suffers and the lawyers fees deplete the value of the estate. Lawyers or Grave Robbers? exposes fundamental flaws in the legal system and questions prevailing legal ethics.
Peter Andrew (Legal System Reform Advocate)

"...many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession."
Associate Professor Benjamin Barton. University ofTennesee College of
Law (Alabama Law Review, December 2007)

'THE CARTEL' Lawyers and Their Nine Magic Tricks.
by Evan Whitton

First published 1998 ISBN 0 646 34887 6 Available worldwide from:
www.ewhitton.com and distributed in Australia by:- Tower books 19 Rodborough Road, Frenches Forest NSW 2086
Phone 02 9975 5566 Fax 02 99755 5599

In this remarkably well-researched work, Evan Whitton, lecturer in journalism at Queensland University, author and one of Australia's leading investigative journalists draws upon history and contemporary issues to challenge the adversary system of justice and the self-serving profession in whose interests it was created.

In doing so, Whitton uses humour, incisive observation and a no-holds-barred approach in his disembowelment of a fraternity that for the most part serves the rich and those with the appropriate social connections.

In "The Cartel" the author has given us what is probably the most significant contribution towards understanding the failures and corruption within civil and criminal jurisdictions. And because lawyers dominate the legal and political process it inevitably brings into question the quality of our democracy or if indeed it exists at all.

'THE EVIL DEEDS OF THE RATBAG PROFESSION' In the Criminal Justice System. by Brett Dawson

Published 1998 Available from Brett S. Dawson EMail: bsdawson@bigpond   Fax: 07 5442 2373
An outstanding and uncompromising insider's evaluation of the criminal justice system:
In highlighting the gulf between the law and justice Brett Dawson calls upon 30 years experience as a prosecutor, defence lawyer, property lawyer, civil litigation lawyer, professional trainer of law graduates and law lecturer.

Dawson, like Whitton, uses court decisions and court practices from all over the English speaking world to demonstrate that because the legal process is not about seeking the truth it is fundamentally flawed. Defence lawyers can hide the truth under "legal professional privilege", vilify victims and get away with lying to compliant judges.

Dawson analyses what has gone wrong and why. The profession is constantly telling us that with all its faults we have the best system of justice, a state of affairs hard to validate when compared to the European model or measured against the disturbing facts arraigned before us by Evan Whitton and Brett Dawson.

TRIAL BY VOODOO; how the Law defeats justice and democracy.
by Evan Whitton

Published 1994  by Random House Australia  ISBN 0 09 182880 5
The premise of this book is quite simple: Our legal system does not provide us with justice and true democracy because it does not set out to establish the truth, and punish the guilty. The heart of the problem is that the system refuses to accept that judges and juries are able to cope with the direct truth - or the reporting of it by journalists.

In Trial by Voodoo, Evan Whitton draws on years of reporting law, crime, corruption - and our whole apparatus of power - to describe what really happens in our legal system: trials, judicial investigations, Royal Commissions, etc. And he brings to life the history and great characters (on both sides of the process) and shows how they, at varying times, make the system work for them.

Evan Whitton makes a powerful case for a greater openness in legal procedure - and free and open reporting by journalists. In the words of Justice Felix Frankfurter of the United States Supreme Court: "One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of justice is fair and right."

For worthwhile change to occur it is important to first know what is wrong. Evan Whitton, Brett Dawson, and Diarmuid Hannigan have courageously shown the way.


31.If having read these extracts, I later received by e-mail from Diarmuid Hannigan an electronic copy of Serial Liars, How the Lawyers get the money, another book by Evan Whitton, which I send by attachment for all ‘high and mighty’ lawyers to refute.

32.Justice Hart  in his judgement states at:- ‘[21] (3) Was Charles Ferris as the eldest son on Charles Ferris Senior entitled by operation of law to the lands upon the death intestate of his father on 15 November 1945?’

At the time of the death of Charles Ferris (senior) intestate on the 15th day of November 1945, his eldest son Charles Francis Ferris (my father) was entitled to the real property as stated: ‘The enactment currently governing distribution on intestate deaths is the Administration of Estates Act (NI) 1955.

This Act is effective for deaths occurring on or after 1st January 1956. DEATHS BEFORE 1956 Real Property Subject to the above provisions of the Intestates’ Estates Act 1890, realty passed to the heir-at-law subject to the widow’s right of dower or the widower’s right of curtsy.

Central to the inheritance laws for realty was the concept of ‘primogeniture’, which embraced the idea that the heir was generally a single person (unless two or more females were entitled in equal degree) rather than a class of next of kin. In establishing who was entitled as heir, the following principles were applied:

(a)In the first instance the heir was traced by descent through the direct line of the issue of the ‘last purchaser’ ad infinitum.
(b)Male relatives were preferred to female relatives in the same degree.
(c)If two or more persons in the same degree were males, the eldest only inherited.
(d)In the absence of males in any degree, females inherited as co-parceners.
(e)Lineal descendants inherited ad infinitum in place of their ancestor.

33.Initially a fee had not been capable of ascending, but this restriction was removed by the Inheritance Act 1833, and in the absence of descendants the heir was the nearest lineal ancestor, subject to the above rules and the rule that the father and his relatives were preferred to the mother and hers. Similarly, the father’s  or mother’s paternal relatives were preferred to the father’s or mother’s maternal relatives.’ Grattan, S. (1996) Succession Law in Northern Ireland. SLS Legal Publication (NI) pages 109 – 113.
   
34.I would like the ‘Court of Appeal’ to  ponder on this quote from Nelson Mandella. 'In Law and Philosophy, one asks, "Quis custodiet ipsos custodes?" (Who will guard the guardians themselves?) If the prefect does not obey the rules, how can the students be expected to obey? In effect the prefect was above the law because he was the law and one prefect was not supposed to report another.' (page 47, Nelson Mandela 1994, Long Walk to Freedom) I think Nelson Mandela 'hits the nail on the head' Solicitors, Barristers and Judges 'are above the law' because they are the law. In the 22 years that I have been involved in the 'Legal Corruption' as mentioned above and in my case history http://www.crookedlawyers.com/index.php . I have met many Solicitors, Barristers and Judges. I haven't met a single one (from October 1986 to February  2009) who could speak or write the words 'Truth and Justice'.

Skeleton Argument of Defendant/Appellant, Thursday 19th February 2009.


…………………………………..
Signature of Defendant/Appellant
Joseph Ferris, Nurse Lecturer, 14 Alanvale Crescent, Kilfennan Estate, L/Derry, Northern Ireland. BT47 5SJ.
35.Copy to Victims of the Legal Profession Website http://www.crookedlawyers.com/index.php

PS. As the Court of Appeal Hearing is on Monday 2nd March, I reckoned on posting to the Forum to keep people informed. J.F

Telephones:                            Bar Library
BELFAST:    (028) 90241523                    91 Chichester Street
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                                BT1 3JQ

                           
26th February 2009

FAO  Appeals and Lists office

Dear Sirs,

RE:     Christine Meyler as an executor of the Estate of Joseph Patrick Ferris (Deceased) v. Joseph Ferris

Please find enclosed herewith amended Skeleton Argument for the scheduled hearing on Monday 2nd March 2009, on behalf of the Plaintiff/ Respondent;

Yours sincerely


GARY McHUGH BL

Enc


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION

No 05/022648/A01
BETWEEN
CHRISTINE MEYLER
AS EXECUTOR OF THE ESTATE OF JOSEPH PATRICK FERRIS (DECEASED)
Plaintiff/Respondent:
-and-

JOSEPH FERRIS
Defendant/Applicant:
____________________

CASE STATED
____________________

UNDER ARTICLE 62(1) OF THE COUNTY COURTS (NI) ORDER 1980 IN RESPECT OF AN APPEAL TO THE HIGH COURT FROM A DECREE OF THE COUNTY COURT FOR THE DIVISION OF FERMANAGH AND TYRONE ON 30th MARCH 2007

SKELETON ARGUMENT ON BEHALF OF THE PLAINTIFF/RESPONDENT
__________________


1.By way of a Case Stated dated 17th September 2008, Mr Justice Hart has posed three particular questions for this Court, the second question being reduced to three parts.

2.For the purposes of this argument, the Plaintiff/Respondent shall address each question in turn and answer the questions seriatim.  In so addressing the questions posed by Mr Justice Hart, the Plaintiff/Respondent has considered the contents of a document entitled “Skeleton Argument of Evidence by Defendant/Appellant” dated 19th February 2009 and served on the Plaintiff/Respondent’s solicitor on 20th February 2009.


QUESTION 1:

3.0“Was I correct in finding that the agreement of June 1989 was binding upon Charles Ferris, and therefore that he was only entitled to a 2/9th share of the lands?”

3.1    Answer:

It is submitted on behalf of the Plaintiff/Respondent that a determination of this question lies with the consideration of the oral evidence which was elicited at both the original County Court Hearing before His Honour Judge McFarland and upon appeal before Mr Justice Hart.  It is submitted that no questions of law or legal argument pertain to a determination of the answer to this question as the factual matrix giving rise to the agreement of June 1989 was determined upon considering the evidence of Christine Meyler  solicitor, James Montague solicitor and Mr Joseph Ferris.  It is submitted that the overwhelming preponderance of evidence as concluded by His Honour Judge McFarland and Mr Justice Hart, was that there had been explicit and express agreement between the relevant parties to “split” the interest at folio 2974 in accordance with the agreement of the 20th June 1989.  (See paragraph 9 and 10 of the Case Stated.)

4.0    QUESTION 2:

(i)Were the errors in the oath sworn in support of the application for a Grant of Letters of Administration in the estate of Ann Ferris capable of being regarded as fraudulent?


4.1    Answer:

The Plaintiff/Respondent replies that the “errors” are not capable of being regarded as “fraudulent”.

It is submitted on behalf of the Plaintiff/Respondent that where the Defendant/Appellant contends that the oath sworn by Bridget Ferris and Joseph P Ferris were fraudulent, then the onus is on the Defendant/Appellant to prove the fraudulent nature of the same.  It is submitted that in the course of the oral evidence brought before the Learned County Court Judge and subsequently before Mr Justice Hart, no evidence was led by or on behalf of the Defendant/Appellant which could remotely be construed as demonstrating fraud.

4.2The Plaintiff/Respondent contends that where the Defendant/Appellant seeks to demonstrate “fraud”, he must prove, to a very high standard, that the conduct of Bridget Ferris and Joseph P Ferris in the oaths sworn by them amounted to dishonesty.   It is submitted for the purposes of this argument that dishonesty must incorporate the criminal test for the same as set down by the Court of Appeal in Ghosh [1982] QB 1053 and particularly page 1064 paras D – E.

4.3The Defendant/Respondent contends that if the Court does not consider an absolute application of the criminal standard of dishonesty would be applicable for the purposes of answering the case stated, assistance may be gleaned from Stroud’s Judicial Dictionary, Vol 1 at page 998 as to what may constitute fraud or a fraudulent act for the purposes of the index proceedings.

4.4In Stroud at page 998 it is submitted the Learned Author provides helpful examples and instances of what may constitute fraud and the Plaintiff/Respondent adopts the same and in particular the following:

“The Court has never ventured to lay down a general proposition, what should constitute fraud’, per Lord Eldon, LC.  In Mortlock – v – Butler, 10 Ves. June 292 at 206.  But it is ‘something dishonest and morally wrong’ per Wills J ex p Watson 21 QBD 301 and it is inconsistent with a claim of right made in good faith, however unfounded, The People (A-G) – v – Grey [1944] IR 326.”


4.5It is submitted that there is no evidence or material to sustain any interpretation that the oaths sworn in both the application of a Grant of Letters of Administration in the estate of Anne Ferris is capable of being regarded as fraudulent.


5.0    QUESTION 2:

(ii)If so, what, if any, effect would such a finding have upon the Order I made dismissing the appeal?

5.1    Answer:

The Plaintiff/Respondent contends that even where a Court were to determine that the oath sworn as discussed above was fraudulent, this can have no effect on the central, substantive feature of this case, namely that the agreement of
June 1989 was made properly, in good faith and is binding on the parties and their heirs and successors.  The circumstances giving rise to the oath sworn by Bridget Ferris and Joseph P Ferris, it is submitted, are fundamentally extraneous to any determination of the substantive action and the prospective entitlements of the Plaintiff/Respondent and the Defendant/Appellant having regard to the subject lands.


5.2    QUESTION 2:

(iii)Even if the errors were not fraudulent, were they capable of affecting the validity of the subsequent assent?


5.3    Answer:

It is submitted that this question is answered in the negative as no feature of the oath can be seen to impact detrimentally, or otherwise, on the intention of the parties who swore the oath. By analogy with a Deed of Conveyance, the Plaintiff/Respondent asserts that where the oath may contain a false description, it does not prejudice its intended effect as reflected in the latin maxim falsa demonstratio non nocet.  The Plaintiff/Respondent respectfully refers the Court to Wylie’s Irish Conveyancing Law (3rd Edition) page 615, para 17.24.

5.4Mr Justice Hart adopted the analysis of Judge McFarland as set out on Paragraph 12 of Judge McFarland’s judgement which we say is a proper analysis of the position.  In any event this is a matter capable of rectification, as suggested by Judge McFarland, by the chain of title being clarified.  This clarification requires the registration of Charles Ferris Senior as Fee Simple owner of the Folio by adverse possession following his death.  His wife Bridget then occupied the land until her death and the surviving children of Charles and Bridget came to an agreement on the division of the lands which has been found to be a valid and enforceable agreement (i.e. the June 1989 agreement). 

6.0    Question 3

Was Charles Ferris as the eldest son of Charles Ferris Snr. entitled by operation of Law to the lands upon the death intestate of his father on 15th November 1945?

6.1    Answer:

Yes Charles Ferris would have entitlement to the lands to which his father Charles Ferris (Snr.) was entitled at the date of death, subject to any entitlement of his mother.  No steps were taken to register, formalise or any way deal with such entitlement and members of the family continued to occupy and use the said lands.  There was some dispute as to what happened to the land after Charles Ferris Snr’s death.  See paragraph (4) of Judge McFarland’s judgement and paragraph (7) of High Court judgement.  Those who continued in occupation and possession of the lands had a potential claim by way of adverse possession.  This is what prompted the Section 53 application in 1986 and the County Court hearing in 1989.  These competing claims were then dealt with by the agreement of June 1989, which the court has found binding upon Charles Ferris.

25th February 2009
Dermot Fee QC
Gary McHugh BL


LIST OF AUTHORITIES

NAME OF PROCEEDINGS:    Christine Meyler as an executor of the estate of Joseph Patrick Ferris (Deceased) v. Joseph Ferris
PARTY PROVIDING THE LIST:    The Plaintiff/ Respondent

NAME OF COUNSEL:        Dermot Fee QC
        Gary McHugh BL

CASES

1.*    Ghosh [1982] QB 1053 (Page 1064, Paragraphs D-E)

TEXT BOOKS

1.* Blackstone’s Criminal Practice 2009 (Page 384)
2.*Strouds Judical Dictionary (6th Edition) Vol. 1 (Page 998)
3.Wylies Irish Conveyancing Law, 3rd Edition.

STATUTES

1.Limitation (Northern Ireland) Order 1989.

CHRONOLOGY OF EVENTS

Date            Event

March 1901        Registration of subject lands in the name of Anne Ferris

1908            Partial Transfer of some of the Lands

4th September 1925        Anne Ferris dies an intestate Widow

25th November 1945        Death of Charles Ferris Snr.

6th April 1962        Death of Bridget Ferris, wife of Charles Ferris Snr.

12th December 1985    Letters of Administration granted to Bridget Ferris and Joseph P. Ferris.

May 1986    Bridget Ferris and Joseph P. Ferris make joint application to the Land Registry to be registered as joint registered owners of the Folio.  Charles Ferris objects.

30th May 1989    Contested registration application considered before Omagh County Court and application of Bridget Ferris and Joseph P. Ferris dismissed.

June 1989    Agreement reached in relation to the division of the lands.

18th May 1994    Bridget Ferris and Joseph Ferris swear oath to extract a Grant of Letters of Administration (Intestate) in the estate of Anne Ferris.

31st May 1994    Assent created where Bridget Ferris and Joseph P. Ferris as Personal Representatives of Anne Ferris assent to the vesting in Bridget Ferris (as to7/9th share) and Charles Ferris (as to a 2/9th share) on the Land comprised in Folio 2974 County Tyrone.

15th December 1994     Bridget Ferris transferred by way of gift her 7/9th share to Joseph P. Ferris

16th September 1997    Charles Ferris transferred by way of gift his 2.9th share to Joseph Ferris.

15th May 2000    Joseph P. Ferris dies and Christine Meyler is appointed by his last will as his executor.  Under this will he bequeaths his 7/9th share to his six children in equal shares.

7th June 2005    Equity Civil Bill (Partition Proceedings) issued.
7th October 2005    Notice of intention to Defend.

8th November 2005    Notice for Further and Better Particulars.

22nd November 2005    Defendant’s “Defence” and Counterclaim.

9th January 2006    Statement of Evidence on Behalf of the Defendant

23rd February 2006    Replies to Particulars

19th May 2006    Statement of Evidence on behalf of the Plaintiff

19th February 2007    County Court Hearing

30th March 2007    Judgement of His Honour Judge McFarland

23rd April 2007    Notice of Appeal

September/ October 2007    County Court Appeal Hearing

8th April 2008    Judgement of Mr. Justice Hart

17th September 2008    Case Stated by Mr Justice Hart

2nd March 2009    Court of Appeal Hearing.

LIST OF KEY PERSONS

Name                Role

Anne Ferris        Lands first registered in her name

Charles Ferris Snr.        One of Anne Ferris’s 8 children

Bridget Ferris        One of Charles Ferris Senior’s daughters

Joseph P. Ferris        One of Charles Ferris Senior’s sons

Charles Ferris    One of Chares Ferris Senior’s sons and father of the Defendant

Christine Meyler    Plaintiff and Solicitor

Joseph Ferris    Defendant/ Appellant

James Montague    Charles Ferris’s former Solicitor

(Word Count 1,921) J.F. Friday 27th February 2009.

PS. Is it not unreal that both of these Barristers are stating that swearing an Oath that Anne Ferris deceased 1925 had no Grandchildren, when she had 33 Grandchildren is not fraudulent?

Could this be compared with Solicitor Michael Lynne, who provided 'False Undertakings' and robbed the Irish Banks of over 80 million Euro and this was not criminal?

Is this not more proof of 'Serial Liars' and that in the eyes of the legal cloaks and wigs, Irish Solicitors do not commit crimes?

On Monday 2nd March 2009 at Court of Appeal in Belfast. Will  we have to listen to more BBB?

BBB stands for Bullshit-Baffles-Brains. J.F.

Clarification requested on aspects of Court of appeal Monday 2nd March 2009. Joe Ferris Appellant & Litigant in Person. 05/022648/A01

My witnesses, inclusive of   members of the Victims of the Legal Profession Society (VLPS), who were present during the above hearing, namely Daniel Gallagher, Elva Gallagher, Tommy McManus, Helen McCusker, Edmund Fox, Eugene Owens and Charles Ferris, have outlined a number of points as VLPS and ‘Legal Experts by Experience’  that require clarification as follows:-

1.How can there be a ‘proper hearing’ of the ‘Court of Appeal’ when the Plaintiff solicitor Christine Meyler, was not present for the hearing?

2.How can the ‘abrupt’ ending to the hearing be explained, with only limited reference to the 32 ‘bullet point’ questions that were presented in evidence by me as a ‘Litigant in Person’ to the Court of Appeal?


3.Why was there a need for any  agreement in 1989,  when the law of the land at the time in 1945 clearly stated that my late father Charles Ferris was the full owner of the property in Folio 2974 on the death of his father on 15th November 1945?

4.How can the ‘Court of Appeal’ condone that my late father Charles Ferris, as the ‘rightful owner of Folio 2974’ was ‘conned’ by solicitor James Montague and solicitor Christine Meyler, both ‘officers of the court’ from 1986 to the date of  my late father’s death 9th October 2005?


5.Where did the need ever arise that my late father as the ‘full owner’ should sign away seven ninths of his property?

6.Why would you have to fix something, if you already are the full owner?

7.Where did the need ever arise for my father to sign away seven ninths of his property?

8.How can the ‘Court of Appeal’ condone the behaviour of Mr. Dermot Fee QC and Barrister, Mr. Gary McHugh, who both concealed the legal fact ‘that my late father Charles Ferris as the eldest son was entitled to the property in Folio 2974, on the death of his father on 15th November 1945’ from both Judge David McFarland at Dungannon County Court in February 2007 and Justice Anthony Hart at the High Court in Belfast October 2007?


9.My late father was devastated when he received a diagnosis of having cancer in 1997, he could see no possibility of getting any justice in his lifetime and could see no alternative but to transfer the two ninths to my name, in the hope that I one day would get to the bottom of the corruption. How can the ‘Court of Appeal’ further compound the ‘injustice’ by ignoring the ‘law of the land’ that from 1945,  my late father was the rightful owner of all the property in Folio 2974?

10.How can the ‘Court of Appeal’ accept the false evidence, that the purported agreement, was the result of negotiations between Bridget Ferris, Joseph P. Ferris and my late father Charles Ferris, when solicitor James Montague sent a letter, retyped verbatim:- ‘James McNulty & Co. Solicitors, 25 – 27 George’s Street, Omagh, Co. Tyrone, BT78 1DS Your Ref: CM?GG?5615 Our Ref: JM/AMCE/CCS.53 16th June 1989 Re: Application of Bridget & Joseph P. Ferris Folio Number: 2974 County Tyrone. Dear Sirs, We acknowledge yours of 15th inst with Notice of Appeal attached. Obviously no agreement or consent can be forthcoming until the Appeal is disposed of. Yours faithfully, James Montague. Messrs. R. H. O’Connor & Co., Solicitors, Omagh.?

11.How can the ‘Court of Appeal’ accept the evidence of solicitor James Montague as being the ‘truth’ when solicitor James Montague concealed the details of this Appeal from my late father?  I only became aware of this letter from communication from solicitor Christine Meyler dated 23.02.2007 Ref: CM/MM/2275 Dear Mr. Ferris, Re: Partition Proceedings – Joseph Ferris Deceased Please find enclosed as directed by the Judge copy of my attendance note dated 25th May 1994 together with copy letters from McNulty & Co dated 16th June 1989 and 22nd June 1989. Yours faithfully, Christine Meyler.

12.How can the Court of Appeal ignore the point of law that is confirmed at paragraph 6.0 Question 3 Was Charles Ferris as the eldest son of Charles Ferris Snr. Entitled by operation of Law to the lands upon the death intestate of his father on 15th November 1945? Answer Yes. 25th February 2009 Dermot Fee QC Gary McHugh BL?

CC. www.crookedlawyers.com www.rateyoursolicitor.com

The Sunday Times 8th March 2009 page 22

American Judges took bribes to jail teenagers Tony Alllen-Mills New York

LIKE many other 15-year old schoolgirls, Hilary Transue  was not quite as respectful as she might have been towards teachers at her Pennsylvania school. Yet she was a clever computer-savvy pupil who had good grades and had never been in serious trouble.

One day, for a joke, she published a spoof article on the MySpace social networking website, mocking the assistant principal at her high school in Wilkes-Barre. The teacher complained and, to the  astonishment  of  her family, Transue was charged with harassment and hauled into juvenile court.

That was where the family’s surprise turned to horror. After studying the case for two minutes, Judge Mark Ciavarella sentenced Transue to three months in juvenile detention. She was led out  in handcuffs.

Two years later it is Ciavarella’s turn to go to jail and Transue is among several hundred former inmates of  local juvenile detention centres who are suing for compensation after America’s most sinister judicial scandals of recent times.

The extraordinary case of the Pennsylvania judges who were paid bribes by private prison operators for every child they sent to jail has astounded America and shamed its judiciary, just as the US Supreme Court is considering another possible landmark case involving alleged judicial corruption.

Ciavarella and Michael Conahan, a fellow judge from Luzerne county in north – eastern Pennsylvania, pleaded guilty last month to pocketing more that $2.6m (E2m) in kickbacks from the operators of two privately run juvenile detention centres.
Both men face more than seven years in jail for their roles in a bizarre kids-for-cash scheme that flourished despite local newspaper investigations and complaints by families that their children were being denied access to lawyers.

Prosecutors alleged that Conaghan secured lucrative contracts for private jails which were paid by the state according to the numbers of inmates they housed. Ciavarella ensured that the jails were filled with juvenile offenders.

Lawyers for the detention centres involved have claimed that the scheme was concocted by the judges who forced the owners to pay up or possible lose their contracts.

Between 2002 and 2006 Ciavarella is thought to have jailed a quarter of the defendants who appeared in his court, compared with an average of other judges of one in 10.  In many cases he persuaded the parents to waive their rights to legal representation on the grounds that the process would be cheaper and quicker.

Among the judge’s victims was Jamie Quinn, a 14-year-old girl who got into a fight with a friend and ended up slapping her. Her punishment: nine months in juvenile detention.

Chad Uca was 15 when he pushed a boy at school, causing him to cut his head on a locker. Uca got three months.

Another child was jailed for shoplifting a $4 jar of nutmeg. All were first-time offenders.

Publicity over Transue’s case helped to spur a federal investigation and the judges were charged with conspiracy and tax fraud. Ciavarella, 58. acknowledged that he had “disgraced my judgeship”.

The case has come at an awkward moment for the Supreme Court, which heard legal arguments last week concerning a West Virginia judge who stood for election with money provided by a local coal baron, then promptly ruled in the businessman’s favour in a multi-million-dollar dispute.

PS. A very interesting article found by J.J. O’Sullivan Dublin VLPS.

Would we have any corrupt judges in Holy Ireland? J.F.

Neutral Citation No.: [2009] NICC 10    Ref:         HAR7369
         
Judgment: approved by the Court for handing down    Delivered:    13/2/2009
(subject to editorial corrections)*         

IN THE CROWN COURT IN NORTHERN IRELAND
________

DOWNPATRICK CROWN COURT
(SITTING AT BELFAST)
________

THE QUEEN

-v-

GEORGE IGNATIUS MARTIN and MARY MARTIN
________

HART J

[1]        The defendants are husband and wife and have pleaded guilty to four counts under the Forgery and Counterfeiting Act 1981, one of forgery contrary to s. 1, and one of using a forged instrument contrary to s. 3, both in respect of a document dated 17 December 1997; and two further similar counts in respect of a document dated 25 January 2000. 

[2]        The circumstances giving rise to these charges are that Annie Martin, who is a widow aged 93, and her son the first defendant George Ignatius Martin lived in the family house at 54 Downpatrick Street, Saintfield for many years.  This was originally a Housing Executive property and was purchased after Annie Martin’s husband died in 1986.  She was the tenant and it was purchased in the joint names of herself and the first defendant with a mortgage from a building society. 

[3]        In 1992 George Ignatius Martin married Mary Martin and after their marriage they and their children lived in 54 Downpatrick Street, sharing their home with Annie Martin. 

[4]        The charges to which George and Mary Martin have pleaded guilty relate to the forgery of signatures upon two documents which were prepared to carry out a transfer of Annie Martin’s share in 54 Downpatrick Street to Mary Martin.

[5]        This was carried out in two stages, the first being that a Land Registry Transfer dated 17 December 1997 was drawn up which had the effect of joining Mary Martin as a joint owner of the property with her husband and Annie Martin.  This is the subject of counts one and two.  The second stage was that on 25 January 2000 a further Land Registry Transfer was drawn up which had the effect of making George and Mary Martin the sole owners of 54 Downpatrick Street, thereby depriving Annie Martin of her remaining interest in that property.  This gives rise to counts four and five.

[6]        By their pleas the defendants have admitted that they forged the signature of Annie Martin to these documents.  This came to light after Annie Martin was admitted to hospital in April 2006.  In his statement of additional evidence another son, Malachy, describes how his wife called and found her mother in law very ill, and as a result she was admitted to hospital, although the exact date does not appear in the committal papers.  Malachy Martin described in his statement that sometime in mid May 2006 after a nurse said to him and George Ignatius Martin that their mother was well enough to be discharged the first defendant shortly afterwards said that she ‘won’t be coming back to Saintfield, she will have to go into a nursing home’.  When asked why, the first defendant allegedly said that ‘she was becoming too much bother’, and that they owned all of the house now.  Later that night Malachy Martin says that he rang his brother and asked him what was happening, and was told ‘look Malachy, she’s not getting back in, she’s too old, she’s had her day and she’s now too much trouble and we don’t have enough room in the house’.  When the second defendant came onto the phone she said much the same.

[7]        Following the refusal of the defendants to allow Annie Martin to return to 54 Downpatrick Street she had to remain in hospital for several weeks whilst alternative accommodation was found for her, and eventually a place was found in a nursing home in Belfast, where she continues to reside, and her son Malachy contributes towards the cost.

[8]        Malachy Martin was unaware that his mother no longer had any share in the house, and after some enquiries the matter was reported to the police and as the result of complaints made by Annie Martin was investigated.  It was discovered that her signature had been forged to the documents to which I have referred.  In her police statement Annie Martin maintains that she never agreed to any such transaction. 

[9]        The present defendants were originally jointly charged with Ann Ervine, the solicitor who prepared the transfers, but the prosecution did not proceed with the charges against Ann Ervine at the trial and the charges against her were ordered to lie on the file.  Mr Charles McKay QC (who appears on behalf of the prosecution with Mr David Russell) accepts that evidence produced to the prosecution by Ann Ervine on the morning of the trial indicated that there were numerous occasions upon which she contacted Annie Martin in respect of instructions from Annie Martin to transfer her interest in the property to Mary Martin.  This evidence took the form of a book recording phone contact with her, and the entries suggested that Annie Martin, contrary to what she later alleged to the police, was aware at that time that the procedures to transfer her interest in the house were taking place.  Mr McKay QC said that as this book was only produced on the morning of the trial the prosecution were not able to have it forensically examined, but the entries supported Ann Ervine’s account and on visual examination of the entries there was nothing to cast doubt on their authenticity.  When asked by the court he accepted that there was possibly an argument that there had in fact been agreement by Annie Martin to her interest being transferred, and that the arrangement was then improperly carried out, and I propose to sentence the defendants upon this basis.  Had this not been the case, the sentence would have been greater.

[10]      It may be that part of the impetus for the defendants behaviour was due to a concern by the defendants that if Annie Martin was no longer able to live in her own home due to ill health and advancing years, and had to be admitted to a nursing home, the cost of nursing home fees might be recouped from her interest in the property, and this might require their home to be sold.  In the pre-sentence report on George Ignatius Martin it is recorded that he acted to prevent losing his home; but the report on Mary Martin says that she asserted that “she wanted this to happen so that the house would be secure for her family in the event of her husband’s death”, a somewhat different motive.

[11]      However, Mr McKay QC drew attention to evidence which shows that the defendants’ action in not allowing Annie Martin to return home when she was fit to leave the hospital was due to financial motives.  Mortgage records in the committal papers reveal that a mortgage of £36,400 was taken out on the property in February 2003, which was of course after the second forgeries resulted in Annie Martin’s interest being extinguished. It seems that some or all of this may have been to pay for home improvements and an extension from which Annie Martin may have received some benefit like the other occupants of the house.  However, in June 2006 the property was re-mortgaged and a further advance of £44,450 was paid to the defendants on 28 June 2006, of which £18,852 was immediately transferred elsewhere.  This still left a balance of £24,854.60 which had been reduced to £11,587.45 by 8 August, see p. 157.  When I asked Mr Weir QC (who appears for Mary Martin with Mr Bacon) where the money had gone he replied that there were credit card debts of approximately £15,000 and some furniture and beds were bought for the children, and money was also spent on decoration and wooden floors. 

[12]      Whilst there may be some evidence to suggest that at some time Annie Martin was a willing party to a change in the ownership of the property, the defendants have pleaded guilty to forging her signatures.  Not only that, but the re-mortgaging of the house and obtaining such a substantial additional advance so soon after refusing to allow her to return to what had been her home for so many years is not only unedifying as Mr Weir QC accepted, but suggests that their motive throughout was greed and that they were determined to achieve improperly what might otherwise happen voluntarily, or by operation of law because, as defence counsel pointed out, as joint owner George Ignatius Martin would succeed to his mother’s interest on her death.

[13]      The actions of Mary Martin in holding her mother in law’s hand in an attempt to help her to sign, and then ultimately signing in her mother in law’s name, suggest that even if the initiative for this came from her husband, she played as active a part, and may well have been the moving spirit.

[14]     There are a number of mitigating factors.  First of all, both defendants are entitled to credit for their pleas of guilty, albeit that that credit must be reduced because the pleas of guilty were not entered until the morning of the trial, thereby requiring Annie Martin to contemplate having to be brought to court.  Secondly, as already stated, there is material available to the prosecution which suggests that Annie Martin did give instructions at some stage that her interest in 54 Downpatrick Street be transferred to the defendant Mary Martin. Thirdly, both defendants were persons of not merely good, but irreproachable, previous character as may be seen from the various testimonials handed into court on their behalf.

[15]      Mr Ramsay QC on behalf of George Ignatius Martin, submitted that his client had otherwise been a dutiful and supportive son to his mother despite her failing health, and his instructions were that the initiative did come from her. As did Mr Weir QC he referred to the effect a custodial sentence would have on their young children, and he confirmed that his client will not oppose the rectification proceedings that have been launched. 

[16]    Mr Weir QC for Mary Martin said that his client was motivated by a misguided desire to achieve more security, but this does not sit well with the substantial amount involved in the re-mortgage in June 2006 after the defendants refused to allow Annie Martin to return home.

[17]      Finally, there is the fact that if either or both of the defendants goes to prison this will have an effect upon the children of the family, both of whom are at primary school.  Medical evidence in relation to the younger child confirms that he has mild autism, although he remains in mainstream education.  I accept that any disturbance in his routine would be detrimental to him. The other is due to leave primary education this year.  Both Mr Ramsay QC and Mr Weir QC urged me to treat this as an exceptional factor and to show mercy to the children by not sending their parents to prison, pointing to the burden that would fall on their elderly maternal grandparents who would have to assume sole responsibility for them. They currently look after the children after school until they can be collected. 

[18]      Forgery of documents is always a very serious matter.  As Ognall J pointed out in R v. Lincoln (1994) 15 Cr. App. R. (S.) 333 –

“However exceptional the circumstances forgery – particularly forgery of documents of this character, affecting title to property, must in our view, in all but the most exceptional circumstances, be visited by a sentence of immediate custody.”

In that case the court reduced a sentence of imprisonment from twelve months’ to six months.  Lincoln has since been referred to with approval by the Court of Appeal (Criminal Division) in R v. Kidd and Bianchy [2008] 1 Cr. App. R. (S.)  where sentences of twelve months’ imprisonment on pleas of guilty were upheld.  Mr Weir QC argued that in the present case the title would not have been affected, but that is not a significant factor.  The chief mischief in this case was to take Annie Martin’s home away from her in her declining years, and inflict upon her the deep distress at being excluded from her home and contact with her grandchildren that is clear from her victim impact statement. Even on the basis that Annie Martin may have agreed to, or even initiated, the suggestion that the property be put in the sole names of the defendants, I do not believe that she ever contemplated that they would exclude her from her home.  The defendants forged her signatures to get this house into their names and took advantage of her absence in hospital to refuse to allow her back and then took advantage of their sole ownership to get a large amount of money.  I do not regard the impact that their being imprisoned will have on their children as being an exceptional factor in those circumstances.

[19]      I am satisfied that this is a case where immediate custodial sentences are required.   I see no reason to distinguish between the defendants and I consider that the least sentence I can impose is one of six months’ imprisonment on each count, the sentences will run concurrently.

PS. This case was covered by the BBC Spotlight programme broadcast on Tuesday 17th March 2009 on BBC 1 and on Wednesday 18th March 2009 on BBC 2 presenter Stephen Walker.

The Spotlight programme explains how the expert evidence of Forensic Scientist Stephen Maxwell in deciphering the signature of Annie Martin as a forgery, was crucial evidence for Detective Constable Eadie to further interrogate the statements of Ignatius Martin and his wife Mary Martin, resulting in their later admissions of guilty to forgery.

One of the major facts in my late father’s case was the ‘false oath document'  which was described by the Lord Chief Justice, Sir Brian Kerr, during my case before the ‘Court of Appeal’ Monday 2nd March 2009, as “A silly, stupid fraud, so silly and stupid a fraud that it could not be a fraud”.

Is false information in a legal document and forgery not one and that same crime, called fraud? J.F.

business contracts legal terms and definitions glossary

glossary of business contract terms - general, financial, property and latin definitions - a translation guide for legal gobbledegook and contract jargon
http://www.businessballs.com/realale.htm

Here is a business contracts terms and definitions glossary - essentially for UK, and a useful guide for anywhere else in the world. When you are involved in business contract negotiations - especially for your own business - you can achieve far better negotiated results if you have a good understanding of what contracts and their terminology actually mean.

This will empower you to utilise your legal advice for specialist legal issues rather than strategic decision-making, over which you must have full control.

If you are the boss, or accountable for a contractual outcome, you must understand contracts and their meaning. When you understand what contracts mean you increase your control over the situation, your advisors, the other party, their advisors, and the negotiated outcomes.

The provision of this material by Business Link is gratefully acknowledged. It is subject to Crown copyright. For further information visit the Business Link website.

Contracts are an important part of business life. They establish agreements between you and your employees, landlords or tenants, suppliers, customers and with other businesses. They are usually drawn up by solicitors and can be full of legal jargon.

A contract is an agreement that commits you or your business to a course of action.

Therefore, it is important that you ask your solicitor or adviser to explain any language or terminology that you do not understand.

This guide provides plain English explanations for some of the expressions that you might come across, including:
·    general contracts terms
·    financial contracts terms
·    property contracts terms
·    Latin contracts terms

You should never sign any contract unless you have read and understood what it aims to do and what the terminology means.

Note: terms highlighted in bold within the current definitions (eg offer) are explained elsewhere in this guide.


general business contracts terms and definitions glossary

Acceptance - the unconditional agreement to an offer. This creates the contract. Before acceptance, any offer can be withdrawn, but once accepted the contract is binding on both sides.

Any conditions have the effect of a counter offer that must be accepted by the other party.

Agent - somebody appointed to act on behalf of another person (known as the principal). The amount of authority to deal that the agent has is subject to agreement between the principal and the agent. However, unless told otherwise, third parties can assume the agent has full powers to deal.

Arbitration - using an independent third party to settle disputes without going to court. The third party acting as arbitrator must be agreed by both sides. Contracts often include arbitration clauses nominating an arbitrator in advance.

Breach of contract - failure by one party to a contract to uphold their part of the deal. A breach of contract will make the whole contract void and can lead to damages being awarded against the party which is in breach.

Collective agreement - term used for agreements made between employees and employers, usually involving trade unions. They often cover more than one organization. Although these can be seen as contracts, they are governed by employment law, not contract law.

Comfort letters - documents issued to back up an agreement but which do not have any contractual standing. They are often issued by a parent or associate company stating that the group will back up the position of a small company to improve its trading position. They always state that they are not intended to be legally binding. Also known as letters of comfort.

Company seal - an embossing press used to indicate the official signature of a company when accompanied by the signatures of two officers of the company. Since 1989 it has been possible for a company to indicate its agreement without use of the seal, by two signatures (directors or company secretary) plus a formal declaration. However, some companies still prefer to use a seal and the articles of a company can override the law and require a seal to be used.

Conditions - major terms in a contract. Conditions are the basis of any contract and if one of them fails or is broken, the contract is breached. These are in contrast to warranties, the other type of contract term, which are less important and will not usually lead to the breach of the contract - but rather an adjustment in price or a payment of damages.

Confidentiality agreement - an agreement made to protect confidential information if it has to be disclosed to another party. This often happens during negotiations for a larger contract, when the parties may need to divulge information about their operations to each other. In this situation, the confidentiality agreement forms a binding contract not to pass on that information whether or not the actual contract is ever signed. Also known as a non-disclosure agreement.

Consideration - in a contract each side must give some consideration to the other. Often referred to as the quid pro quo - see the Latin terms below. Usually this is the price paid by one side and the goods supplied by the other. But it can be anything of value to the other party, and can be negative - eg someone promising not to exercise a right of access over somebody else's land in return for a payment would be a valid contract, even if there was no intention of ever using the right anyway.

Consumer - a person who buys goods or services but not as part of their business. A company can be a consumer for contracts not related to its business - especially for goods or services it buys for its employees. Charities are also treated as consumers.

Due diligence - the formal process of investigating the background of a business, either prior to buying it, or as another party in a major contract. It is used to ensure that there are no hidden details that could affect the deal.

Employment contract - a contract between an employer and an employee. This differs from other contracts in that it is governed by employment legislation - which takes precedence over normal contract law.

Exclusion clauses - clauses in a contract that are intended to exclude one party from liability if a stated circumstance happens. They are types of exemption clauses. The courts tend to interpret them strictly and, where possible, in favour of the party that did not write them. In customer dealings, exclusion clauses are governed by regulations that render most of them ineffective but note that these regulations do not cover you in business dealings.

Exemption clauses - clauses in a contract that try to restrict the liability of the party that writes them. These are split into exclusion clauses that try to exclude liability completely for specified outcomes, and limitation clauses that try to set a maximum on the amount of damages the party may have to pay if there is a failure of some part of the contract. Exemption clauses are regulated very strictly in consumer dealings but these don't apply for those who deal in the course of their business.

Express terms - the terms actually stated in the contract. These can be the written terms, or verbal ones agreed before or at the time the contract is made (see implied terms).

Franchising - commercial agreements that allow one business to deal in a product or service controlled by another. For example, most car manufacturers give franchises to sell their cars to local garages, who then operate using the manufacturer's brand.

Going concern - accounting idea that a business should be valued on the basis that it will be continuing to trade and able to use its assets for their intended purpose. The alternative is a break-up basis, which sets values according to what the assets could be sold for immediately - often much less than their value if they were kept in use.

Implied terms - are terms and clauses that are implied in a contract by law or custom and practice without actually being mentioned by any party. Terms implied by custom and practice can always be overridden by express terms, but some terms implied by law cannot be overridden, particularly those relating to consumers (see exemption clauses).

Incorporate - inclusion in, or adoption of, some term or condition as part of the contract. It differs from its company law definition where it refers to the legal act of creating a company.
Injunction - a remedy sometimes awarded by the court that stops some action being taken. It can be used to stop another party doing something against the terms of the contract.

Injunctions are at the court's discretion and a judge may refuse to give one and award damages instead - see the finance contract terms below.

Joint and several liability - where parties act together in a contract as partners they have joint and several liability. In addition to all the partners being responsible together, each partner is also liable individually for the entire contract - so a creditor could recover a whole debt from any one of them individually, leaving that person to recover their shares from the rest of the partners.

Joint venture - an agreement between two or more independent businesses in a business enterprise, in which they will share the costs, management, profits or benefits arising from the venture. The exact shares and responsibilities will be set out in a Joint Venture Agreement.

Jurisdiction - a jurisdiction clause sets out the country or state whose laws will govern the contract and where any legal action must take place. Don't forget that England and Scotland have different legal codes, and this may need to be specified.

Letters of comfort - see Comfort letters.

Liability - a person or business deemed liable is subject to a legal obligation. A person/business who commits a wrong or breaks a contract or trust is said to be liable or responsible for it.

Limited liability - usually refers to limited companies where the owners' liability to pay the debts of the company is limited to the value of their shares. It can also apply to contracts where a valid limitation clause has been included in the terms.

Liquidation - the formal breaking up of a company or partnership by realising (selling or transferring to pay a debt) the assets of the business. This usually happens when the business is insolvent, but a solvent business can be liquidated if it no longer wishes to continue trading for whatever reason (see receivership in the financial terms below).

Misrepresentation - where one party to a contract makes a false statement of fact to the other which that other person relies on. Where there has been a misrepresentation then the party who received the false statement can get damages for their loss. The remedy of rescission (putting things back to how they were before the contract began) is sometimes available, but where it is not possible or too difficult the court can award damages instead.

Non-executive director - a director who does not work directly for a company but advises the other directors. Non-executive directors have the full powers and authority of any other director and can bind the company to any contract.

Offer - an offer to contract must be made with the intention to create, if accepted, a legal relationship. It must be capable of being accepted (not containing any impossible conditions), must also be complete (not requiring more information to define the offer) and not merely advertising.

Parent company - where one company owns more than 50 per cent of the voting rights of another company it is the parent of that company which in turn becomes its subsidiary. It can also occur where the parent has less than 50 per cent but can control the board of directors of the subsidiary: that is, it has the power to appoint and remove directors without referring to other shareholders.

Partnership - when two or more people or organizations join together to carry on a business.

Proxy - a person who acts on behalf of another for a specific purpose, or the form used to make such an appointment. In a company a shareholder can appoint a proxy to attend a meeting and vote on their behalf.

Quorum - the minimum number of people needed at a meeting for it to proceed and make any decisions.

Ratification - giving authority to an act that has already been done. A company general meeting resolution can ratify an act previously done by the directors; or a principal can choose to ratify the act of an agent that was beyond the specified power of the agent.

Registered Office - the official address of the company as stated on the register at Companies House. Any documents delivered to this address are considered to be legally served on the company.

Repudiation - has two meanings in contract law. The first is where a party refuses to comply with a contract and this amounts to a breach of contract. The second is where a contract was made by a minor (person under the age of 18) who then repudiates it at or shortly after the age of 18. Then the repudiation voids the contract rather than causing a breach of contract.
Restrictive covenant - is often included in long-term contracts and contracts of employment to stop the parties working with competitors during the period of the agreement and for some time thereafter. However, unless carefully written the courts will see them as being a restraint of trade and not enforce them.

Service contract - directors and officers of a company are usually given service contracts that are different to a contract of service or employment contract. This is because directors and officers are not always employees and the effect of employment law is different.

Shareholders' agreement - an agreement between all of the shareholders about how the company should be run and the application of the rights of the shareholders. This acts as a contract between the shareholders. The company itself is not bound by it, as it is not a party to the agreement.

Subject to contract - words used on documents exchanged by parties during contract negotiations. They denote that the document is not an offer or acceptance and negotiations are ongoing. Often the expression without prejudice is used when subject to contract is meant.

Trademark - a registered name or logo that is protected by law. Trademarks must be granted through the Patent Office.

Underwriter - a person who signs as party to a contract. Now usually only applied to insurance contracts where the underwriters are those who agree to bear all or part of the risk in return for the premium payments. Underwriters at Lloyd's of London are also known as names.

Unfair terms - some terms are made unfair by legislation and will not be enforced by the courts and may even be interpreted against the person who included them in the contract. The legislation mainly protects consumers, but can also apply where there is a business-to-business contract in which one party is significantly more powerful than the other.

Void - a void contract is one that cannot be performed or completed at all. A void contract is void from the beginning (ab initio - see the Latin terms below) and the normal remedy, if possible, is to put things back to where they were before the contract. Contracts are void where one party lacks the capacity to perform the contracted task, it is based on a mistake, or it is illegal.

Warranties - promises made in a contract, but which are less than a condition. Failure of a warranty results in liability to pay damages (see the financial terms below) but will not be a breach of contract unlike failure of a condition, which does breach the contract.

Without prejudice - a term used by solicitors in negotiations over disputes where an offer is made in an attempt to avoid going to court. If the case does go to court no offer or facts stated to be without prejudice can be disclosed as evidence. Often misused by businesses during negotiations when they actually mean subject to contract.

financial contracts terms and definitions glossary

Note: terms highlighted in bold within the current definitions (eg wound up) are explained elsewhere in this guide.

Bankruptcy - the formal recognition that a person cannot pay their debts as they are due. Note this only applies to individuals, companies and partnerships that become insolvent are wound up.

Damages - money paid as the normal remedy in the law as compensation for an individual or company's loss. If another type of remedy is wanted (such as an injunction - see general contract terms below) but cannot be or is not given by the court, then damages will be awarded instead.

Debenture - a formal debt agreement. It refers to both the agreement and the document that verifies it. It is usually issued by companies and is generally supported by security over some property of the debtor. If the debtor defaults, the creditor can take and sell the property. Debentures are often transferable, so the creditor can sell it and there are markets on formal stock exchanges that deal in types of debenture. It is sometimes referred to as debenture stock. A mortgage is a type of debenture but one that is always secured, usually against land.

Floating charge - a form of security for a debt. Instead of naming a specific property, which can be taken by the creditor if the debtor defaults (as in a fixed charge like a mortgage), a class of goods or assets is named, such as the debtor's stock. This allows the debtor to trade in the assets freely, but if the debtor fails to make repayments then the floating charge becomes a fixed charge (known as crystallisation) over all the stock at that time. The creditor can then take and sell it to recover the debt.

Guarantee - a secondary agreement by which one person promises to honour the debt of another if that debtor fails to pay. Banks and other creditors often call on directors of small companies to give their personal guarantees for company debts. A guarantee must be in writing. The guarantor can only be sued if the actual debtor can't pay, in contrast to indemnity.

Indemnity - a promise by a third party to pay a debt owed, or repay a loss caused, by another party. Unlike a guarantee, the person owed can get the money direct from the indemnifier without having to chase the debtor first. Insurance contracts are contracts of indemnity: the insurance company pays first, and then tries to recover the loss from whoever caused it.

Insolvency - the situation where a person or business cannot pay its debts as they fall due (see bankruptcy, liquidation and receivership).

Liquidation - the formal breaking up of a company or partnership by realising (selling or transferring to pay a debt) the assets of the business. This usually happens when the business is insolvent, but a solvent business can be liquidated if it no longer wishes to continue trading for whatever reason (see receivership).

Receivership - the appointment of a licensed insolvency practitioner to take over the running of a company. A creditor with a secured debt appoints the receiver. The job of the receiver is to recover the debt either by taking the security and selling it or by running the business as a going concern until the debt is paid off (see liquidation).

Redemption of shares - where a company issues shares on terms stating that they can be bought back by the company. Not all shares can be redeemed, only those stated to be redeemable when they were issued. The payment for the shares must generally come from reserves of profit so that the capital of the company is preserved.

Remedy/Remedies - payments or actions ordered by the court as settlement of a dispute. The most common is damages (a payment of money). Others include specific performance (of an action required in the contract), injunction (see the general contract terms above) and rescission - putting things back to how they were before the contract was signed.

Stamp duty - a tax on transactions. Only applied to specific types of transactions eg dealings in land and buildings, shares and ships.
Wound up - winding-up is the formal procedure for disbanding a company.

property contracts terms and definitions glossary

Note: terms highlighted in bold within the current definitions (eg deed) are explained elsewhere in this guide.

Break clause - a clause that allows a tenant to end a lease at specific times during the period of the lease.

Conveyance - a deed that conveys property rights.

Covenant - a promise within a contract for the performance or non-performance of a specified act.

Deed - a written document by which a person transfers ownership of real property to another. A deed must be properly executed and delivered in order to be effective.

Disclaimer - a written document denying legal responsibility, or a limitation of rights that might otherwise be claimed.

Easement - an interest in land owned by another that entitles its holder to a specific limited use or enjoyment eg the right to cross the land, or to continue to have an unobstructed view over it.

Encroachment - when a building or some portion of it, or a wall or fence, extends beyond the land of the owner and illegally intrudes upon that of an adjoining owner.

Equity - the monetary value of a property after any claims, such as a mortgage, are taken away.

Eviction - the dispossession of a tenant of leased property by force or through the legal process.

Exchange - the exchange of agreed, signed contracts. The transaction between the seller and the buyer is then legally binding, and completion (including the final transfer of money) usually takes place two to four weeks later.

Fixture - a permanently fixed piece of furniture or equipment incorporated into a property. Removing it would cause damage to buildings or land, and is therefore regarded as legally part of it.

Freehold - outright ownership of a property. This type of tenure contrasts with leasehold where the leaseholder has the rights to occupy a property for a specified period of time.
Habitable - suitable and fit for a person to live in and free of any faults that might endanger the health and safety of occupants.

Holdover Tenancy - a tenancy that arises when someone remains in possession of a property after the expiration of the previous tenancy and is recognised by the landlord by accepting rent.

Indenture - a deed or other document to which two or more parties are bound.

Invitee - a person, such as a customer, who is present in a place either by the express or the implied invitation of the occupier. This normally means that the occupier has to exercise reasonable care to protect the safety of the invited person.

Landlord - the owner of property that is leased or rented to others.

Lease - a contract by which an owner of property conveys exclusive possession and use of it for a specified rent and for a specified period - after which the property reverts to the owner.

Legal duty - the responsibility to others to act according to the law.

Loss of use - circumstances where a property cannot be occupied in the normal way, through the negligence or wrongdoing of another party.

Notice to quit - a notification or communication to a tenant to leave specified premises usually for a breach of terms of the lease.

Occupancy - holding, possessing, or occupying premises.

Occupant - someone who occupies a particular place.

Partition - the division into parts of property held jointly, or the sale of such property by a court with division of the proceeds.

Party wall - a wall that divides two separate premises, which is the joint responsibility of both owners.

Premises - a building or part of a building usually including the adjacent grounds.

Quit - for a tenant to move out of rented premises.

Reasonable wear and tear - damage sustained in the course of normal use.

Repossess - to take possession again of a property or goods after non-payment of money owed. This might follow a court order.

Search - an inspection carried out to establish whether any legal restraints, planning applications or aspects of legal ownership might affect the purchase of a property. Solicitors will look into land registry and local government records when pursuing this.

Sublease - a lease that is given by a tenant of part or all of the leased premises, to another person for a period shorter than the original lease, while still retaining some interest.

Tenancy - the temporary possession or occupancy of property that belongs to another. It also refers to the period of a tenant's possession.

Tenure - the way in which a property is held eg freehold tenure or leasehold tenure.

Trespass - a wilful act or active negligence that causes an injury to a person or the invasion of their property.

Vendee - the person to whom a property is sold.

Vendor - the person who is selling a property.

latin contracts terms and definitions glossary

Note: terms highlighted in bold within the current definitions (eg mala fides) are explained elsewhere in this guide.

Ab initio (ab init) - from the beginning. Can mean that breaking some terms in a long-running contract results in the contract having been broken from the start.

Bona fide - in good faith. Usually implies an amount of trust that the parties are acting without any hidden motives. The opposite is mala fides - in bad faith.

Bona vacantia - vacant property. Refers to a situation where property or goods end up not being owned by anyone. This can happen if a person dies without heirs or a company is struck off without all its property being distributed. It can also occur where a contract becomes void and property under it cannot be restored to an owner. In the UK, any such property then belongs to the Crown and expensive proceedings are required to get it back.

Caveat emptor - buyer beware. This is a general rule that it is up to the buyer to find out if what they are buying is what they want. Consumer regulations require certain information to be disclosed to consumers and insurance contracts are covered by the uberrimae fides - but many types of business contracts are covered by the caveat emptor rule.

Consensus ad idem - agreement on an idea. This is the concept that the parties to the contract must all be in agreement on the basis of the contract. If it is discovered that the parties were thinking different things, then there is no consensus and the contract is void.

De facto - in fact. The opposite of de jure (in law). Having a practical effect different from the legally accepted or expected situation. For example, a person who deliberately or negligently gives the impression to another party of being a company director, can be treated as a de facto director. So any agreement or statements will bind the company they make as if a properly appointed director made them.

De jure - in law. According to law, the opposite of de facto.

De minimis - short for de minimis non curat lex: the law does not concern itself with trifles. It basically means insignificant or too small to bother with.

De novo - start afresh. Starting a new contract on the same basis as the old.

Exempli gratia (eg) - for example. One or more examples from a greater list of possibilities. Compares with id est (ie), that is, which indicates a full, definitive list of all possibilities.

Ex gratia - out of grace. A gift made without any obligation on the part of the giver or any return from the receiver.

Ex parte - on behalf of. An action, usually a legal action, taken by a party on someone else's behalf.

Ex post facto - because of some later event. Where a later event or occurrence interferes with an earlier agreement.

Id est (ie) - that is. Is followed by a definition or list of items or options that relate to a preceding statement or condition. Differs from exempli gratia (eg) - for example - that gives some, but not all, examples of the items or options.

Inter alia - among other things. This is often used in contracts to indicate that what is being specifically referred to is part of a larger group without having to name all the elements.

Mala fides - bad faith, opposite of bona fide.

Nemo dat quod non habet - no one can give what they do not have. The principle that a seller cannot pass on a better right to the property than they actually have. So, if goods are stolen, the buyer does not get ownership even if there was no indication that they were stolen.

Non compos mentis - not of sound mind. A person who is not of sound mind will not have full capacity to enter into a contract.

Non est factum - not my act. This is a denial by a person that they were actually involved in some action or dealings. In a contract, it can occur if a party denies that they signed the contract - that someone else forged their signature.

Pari passu - equal and even. This relates to shares to denote that newly issued shares have the same rights and restrictions as those of the same class already existing.

Prima facie - at first sight. A prima facie fact is one that seems to be correct, but may subsequently be proved wrong by other evidence.

Pro rata - for the rate. Divided in proportion to some existing split. For example, a pro rata share issue is offered in proportion to the number of shares each shareholder already has.
Pro tanto - for so much. Means to the extent specified, but not more.

Pro tempore (pro tem) - for the time being.

Quid pro quo - something for something. The usual definition of consideration (see the general contracts terms above) in a contract, on the basis that each party should offer something to the other.

Uberrima fides - utmost good faith. The concept that a party to certain types of contract must act in good faith and declare all relevant facts to the other side even if they do not ask. This only usually applies to insurance contracts where the insured person must declare all known risks. It is an exemption to the general contract rule of caveat emptor.

PS. A very good website for legal information and explanation of legal and latin terms. J.F.

Apologies the article about 'the loan shark' was from an ITV News item, that I found during an internet search. regards Joe.

THE IRISH TIMES Monday, February 16, 2009 Page 4 Home News.

Law Society rejects ‘self-justification’ of ex-solicitor.

Behaviour of Michael Lynn was ‘shameful and disgraceful’ says director general: Carol Coulter Legal Affairs Editor.

The Director general of the Law Society has rejected the “self-justification” of former solicitor Michael Lynn published in an interview in the Mail on Sunday, of which excerpts were also broadcast on RTE yesterday.

Ken Murphy said that the behaviour of Mr Lynn, who was struck off the Roll of Solicitors over a year ago, was “shameful and disgraceful” and pointed out that the society was still paying compensation from its compensation fund to clients who had lost money because of his activities.

Mr. Lynn fled abroad at the end of 2007 and a warrant was issued for his arrest in December that year after he failed to appear in court.

There are 130 sets of legal proceedings against him from banks and other financial institutions, and from many of his clients, and his debts have been estimated at E80 million.

The Law Society has handed its files on him to gardai, who wish to question him in connection with allegations of fraud.

However, they have been unable to locate him, and no charges have been laid. Because no charges have been issued, he cannot be arrested in another country and extradited.

In the interview, which did not disclose Mr. Lynn’s present whereabouts, the disgraced former solicitor and property developer said he was willing to return to Ireland and “face up to my responsibilities”.

But he said he was travelling around Europe attempting to secure the investments of those who had put money into his business, as far as was possible, and this was his first priority.

He rejected the allegation that, by taking out multiple mortgages on the same properties he had committed fraud.

“It’s true I had extensive borrowings. That’s absolutely true,” he said in the interview. But it’s also true that the acts I engage in and the misguided deeds – on the basis of advice from professionals and the acceptance of certain parties – was probably misguided. But was it fraudulent? I do not believe so.”

He insisted that the banks “couldn’t get enough of  me. When they were considering the merits of giving me a loan for an asset at home they would know about my development abroad. That’s their decision. They were their choices and it was all of our choices to borrow money.

“I can’t return until I have the investors absolutely secured,” he said. He also indicated he was willing to go to prison for “one month,  two months, three months,” he added that he did not see why he should.

“I wouldn’t see any reason why I would have to go to prison and the one thing I want to make clear is that I am not going to be a scape-goat for others,” he said.

“I am not going to be used as an example of what was recognised as an acceptable form and practice of business by bankers, lawyers, accountants and auctioneers. I am not going to be the poster boy who ends up in prison to my cost alone.”

PS.  It is incredible that it is indicated that solicitor Michael Lynn is referred to as ‘He rejected the allegation that, by taking out multiple mortgages on the same properties he had committed fraud.’

When Michael Lynn says, “I am not going to be used as an example of what was recognised as an acceptable form and practice of business by bankers, lawyers, accountants and auctioneers. I am not going to be the poster boy who ends up in prison to my cost alone.”

Can we take it the ‘acceptable form and practice of business by bankers, lawyers, accountants and auctioneers’ was that of ‘taking out multiple mortgages on the same properties’ ?

It is small wonder that George Bernard Shaw, was quoted as saying  “that the professionals exist to rob the common man” 

Is not  the ‘Credit- Crunch’ evidence of how the ‘bankers, lawyers, accountants and auctioneers’  have now robbed all the ordinary decent people in  Ireland and throughout the world? J.F.

Irish Independent July 12th 2008.

Barrister to pay liquidator E635,000 over tax claims: By Tim Healy.

Photograph with the caption: Patrick Russell undertook to pay the money by July 24.

A BARRISTER yesterday undertook before the High Court to pay E635,000 in settlement of an action against him, over the money which a company now in liquidation claimed he failed to pass on to the Revenue Commissioners to pay its tax bill.

Last month, Patrick Russell,  Steelstown, Rathcoole, Co. Dublin, was given tow weeks by the court to come up with, what a judge said was, a “meaningful” explanation of how he intended to pay back the money. – or face an order for his committal to prison for contempt of court.

Yesterday, Mr. Russell undertook to have a draft for the money by close of business on July 24.

The case arose out of proceedings by the liquidator of the company involved, Ardline Aircon Ltd, part of the REL Refrigeration Group of Hebron Industrial Estate, Kilkenny, claiming Mr. Russell had failed to pass on the E635,000 to discharge its (Ardline’s) tax liabilities.

Last December, the Commercial Court made a winding up order for Ardline, which as around the same time the company got an order freezing Mr. Russell’s assets for the sum of E635,000.

The court heard Mr. Russell had held himself out as an expert on tax affairs with negotiating experience with the Revenue.

The court also said the company had received apparent proof of payments made to the Revenue in the form of two receipts faxed to it by Mr. Russell. It only later discovered the documents were false and were disowned by the Revenue it claimed.

Two weeks ago in the High Court, the Ardline liquidator William O’Riordan, sought Mr. Russell’s committal to prison because he had failed to comply with a previous court order requiring him to explain, on affidavit, the manner in which he dealt with money given to him since he had taken receipt of it from the company.

Affidavit

He was given until yesterday to provide the affidavit.

Mr. Justice Liam McKechnie was yesterday told proposals had now been made by Mr. Russell’s lawyer to deal with the matter.

Counsel for the Ardline liquidator said that Mr. Russell was prepared to give an undertaking to pay E635,000 “in full and final settlement of the action”.

Mr. Russell got into the witness box and said he undertook to have the money ready and payable to the solicitors for the liquidator before the close of business on July 24. The matter was adjourned on that basis.

PS. Would it not have been proper for the Gardai to charge Barrister Patrick Russell with fraudulently using a ‘false instrument’?

The following case was that of fraudulently using a ‘false instrument’ in Northern Ireland and resulted in a prison sentence:-

The Queen v George Ignatius Martin and Mary Martin
http://www.courtsni.gov.uk/courtsni/Tem … HINT=Guest

Neutral Citation No.: [2009] NICC 10    Ref:         HAR7369
         
Judgment: approved by the Court for handing down    Delivered:    13/2/2009
(subject to editorial corrections)*         

IN THE CROWN COURT IN NORTHERN IRELAND
________

DOWNPATRICK CROWN COURT
(SITTING AT BELFAST)
________

THE QUEEN

-v-

GEORGE IGNATIUS MARTIN and MARY MARTIN
________

HART J

[1]        The defendants are husband and wife and have pleaded guilty to four counts under the Forgery and Counterfeiting Act 1981, one of forgery contrary to s. 1, and one of using a forged instrument contrary to s. 3, both in respect of a document dated 17 December 1997; and two further similar counts in respect of a document dated 25 January 2000. 

[19]      I am satisfied that this is a case where immediate custodial sentences are required.   I see no reason to distinguish between the defendants and I consider that the least sentence I can impose is one of six months’ imprisonment on each count, the sentences will run concurrently.

Forgery and Counterfeiting Act 1981 1981 CHAPTER 45
3 The offence of using a false instrument

‘It is an offence for a person to use an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.’

PS again. Is there not comparable legislation in the Republic of Ireland for the criminal prosecution of Barrister Patrick Russell for ‘documents  (that) were false and were disowned by the Revenue’ ?  J.F.

SUNDAY WORLD March 25, 2007 Page 14.

Why are we so scared of our judges?

ONCE more, people are unhappy at a particularly lenient sentence handed down by a particular judge to a particular piece of worthless humanity.

There has been great debate on the matter in newspapers and in our airwaves ever since that rapist walked free.

But almost everywhere, undue deference is paid to the bewigged ones.

People tip-toe around them, metaphorically bow and scrape when they mention judges by name or otherwise.

There seems to be some kind of notion abroad, that judges, by their very nature, are in some way superior than the rest of us, that they are somehow more intelligent, that God, for reasons best known to himself, has bestowed on them infinite wisdom.

Nonsense.

Judges are civil servants.

They are lawyers who, for whatever reason decided to accept an offer from the Government to become judges.

Snootily

They are there to do our bidding and not their own.

They sit in criminal courts as part of a system designed to keep the people of the country safe and to ensure the wrongdoers pay for their crimes.
They are in civil courts to ensure that civil disputes are settled quickly, fairly and if possible, amicably.

They are not there to pontificate, to look down on the rest of us, to snootily lecture us or to ignore the wishes of our elected representatives.

God knows why our laws make it difficult to get rid of them.

It took an age to rid us of Brian Curtain and we all know what he, er, didn’t do.

But it is all but impossible to dump a judge because he is simply a lousy judge.

There is no simple mechanism for showing the door to a judge who can’t or won’t do his job properly.

It’s time to change all that.

Time to make it easier to turf them out if they’re not performing.

That makes it all political, you say.

So, how do you think the bulk of them got there in the first place?

PS. The ordinary decent hard-working people like Mr. Montgomery, pay their taxes and pay the wages of the civil servants such as the judges.

How can it be that the ordinary decent hard-working person can be treated so badly by judges, who are accountable, only to themselves?

Is it a case that  ‘power corrupts’ and ‘absolute power corrupts absolutely’? J.F.

13 die in superbug crisis at NHS district hospital
http://www.metro.co.uk/
Tuesday, March 24, 2009

Worried: East-bourne hospital chief Kim Hodgson has offered to do nursing shifts to help contain the outbreak

Thirteen people have died in a superbug outbreak at an NHS hospital, it has emerged.

Another 17 patients are being treated in a special isolation ward while non-infected patients have had to be moved to other hospitals up to 50km (30 miles) away.

More staff have been taken on to cope with the crisis at Eastbourne District General Hospital and the trust's chief executive has even offered to do nursing shifts.

Patient groups described the outbreak of clostridium difficile as 'very worrying' and warned it could put people off going for treatment.

'Hospitals have to focus every day on hygiene – if they don't then they're going to get these sort of outbreaks,' said Michael Summers, of the Patients Association.

'It worries patients greatly and several hundred a month put off elective surgery until these outbreaks are solved.'

The hospital revealed there had been 62 cases of C.diff this year – 30 in February alone.

This is much more than the target rate of 19 a month and was blamed on a high number of patients being admitted with respiratory infections.

The 'vast majority' of the 13 victims were described by the hospital as being elderly and frail.

Three of the patients, aged 85 to 91, lost their lives as a direct result of the infection while it was a contributory factor in the ten other cases.

Dr Barry Phillips, director of infection prevention and control, said: 'I would like to offer my condolences to those who have lost loved ones. Can I reassure patients and local people that we have the highest possible infection controls in place at the hospital to manage this current problem.'

The C.diff bug – which lives in the gut – multiplies when exposed to antibiotics, causing severe complications in already frail patients.

PS. This Research Report highlights the importance of Probiotics products that can be bought over the counter, e.g. Actimel or Yakult can prevent C. Difficile and possibly the person’s death.
BMJ, doi: 10.1136/bmj.39231.599815.55, (Published 29 June 2007)
http://www.bmj.com/cgi/content/full/bmj … 99815.55v1
research-article

Use of probiotic Lactobacillus preparation to prevent diarrhoea associated with antibiotics: randomised double blind placebo controlled trial

Mary Hickson, research dietitian1, Aloysius L D'Souza, research fellow2, Nirmala Muthu, research nurse3, Thomas R Rogers, professor of clinical microbiology and honorary consultant (Hammersmith Hospitals NHS Trust)4, Susan Want, clinical scientist5, Chakravarthi Rajkumar, senior lecturer2, Christopher J Bulpitt, professor of geriatric medicine2
1 Nutrition and Dietetic Research Group, Faculty of Medicine, Imperial College, London W12 0HS, 2 Medicine for the Elderly, Faculty of Medicine, Imperial College, London, 3 Hillingdon Hospital, Uxbridge, 4 Department of Infectious Diseases and Immunity, Faculty of Medicine, Imperial College School of Medicine, London, 5 Microbiology Department, Hammersmith Hospital NHS Trust, London
Correspondence to: M Hickson mhickson@hhnt.nhs.uk

Important Extract from this research report below

Results 7/57 (12%) of the probiotic group developed diarrhoea associated with antibiotic use compared with 19/56 (34%) in the placebo group (P=0.007). Logistic regression to control for other factors gave an odds ratio 0.25 (95% confidence interval 0.07 to 0.85) for use of the probiotic, with low albumin and sodium also increasing the risk of diarrhoea. The absolute risk reduction was 21.6% (6.6% to 36.6%), and the number needed to treat was 5 (3 to 15). No one in the probiotic group and 9/53 (17%) in the placebo group had diarrhoea caused by C difficile (P=0.001). The absolute risk reduction was 17% (7% to 27%), and the number needed to treat was 6 (4 to 14).

Conclusion
Consumption of a probiotic drink containing L casei, L bulgaricus, and S thermophilus can reduce the incidence of antibiotic associated diarrhoea and C difficile associated diarrhoea. This has the potential to decrease morbidity, healthcare costs, and mortality if used routinely in patients aged over 50.

Important Extract from this research report below
Costs

Using the numbers needed to treat (5 for antibiotic associated diarrhoea, 6 for C difficile associated diarrhoea) we calculated the cost to prevent one case of antibiotic associated diarrhoea. The estimated average cost of the probiotic was £10 ( 14.8; $20) per patient (assuming an average antibiotic course of 10 days plus a further seven days of probiotics, and using current retail prices for Actimel, about £0.30 ( 0.44; $0.60) each). The cost to prevent one case would therefore be £50 ( 74; $100) for antibiotic associated diarrhoea and £60 ( 89; $120) for C difficile associated diarrhoea, excluding dispensing and nursing costs. Evidence suggests that additional treatment costs per patient for C difficile associated diarrhoea are on average $3669 (£1835;  2738) in the United States21 and £4000 ( 5920; $8000) in the United Kingdom22, mainly because of increased length of stay in hospital but also because of the use of vancomycin. Clearly substantial savings could be made by the routine use of probiotics.

PS again. If we consider that as Victims of the Legal Profession, we are exposed to incredible stress and resultant illness. I recently had to have antibiotics for a never ending chest infection. In my case, with having additional professional nursing knowledge, I also took yakult night and morning for the 7 days of antibiotics and for the past two weeks. I had no diarrhoea or gastric upsets.

I think the ordinary person ‘general public’ may very often not have access to this 'professional' knowledge and therefore are not ‘warned’ of the dangers or the research proven benefits of also taking 'probiotics' when taking antibiotics to prevent possible serious consequences, such as C. Difficile, which can be fatal, as in the newspaper article above.

I am hoping the VLPS members will appreciate this health message, i.e. Pro-Bono-Publico (for the good of the public)? J.F.