The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND

Vol. No. 79 No. 8 October 1985 Stardust — A Step Towards Justice?

T HE Law Society has already welcomed the decision of the Government to set up a special Tribunal to adjudicate on the claims arising out of the Stardust tragedy. Injured and next of kin are being offered a speedier and simpler process for establishing the amounts of their compensation as an alternative to the uncertainty and delays necessarily attaching to litigation in the Courts. Given the currency of rumours that the insurance cover of the principal defendants, who were limited companies, would be easily exhausted, it had become clear that claimants would have to find financially stronger defendants in order to be sure of collecting the full amount of any awards. Dublin Corporation, the State, consultants, designers and suppliers of materials were in many cases, therefore, added as defendants. This tactic, aimed at ensuring the enforceability of an award, necessarily detracted from the simplicity of the cases. Defences, both technical and substantive, became available to the additional defendants and the complexity of the litigation increased, thus slowing down the whole process. In this context and with more frequent reminders being made of the assurances given by politicians from all sides at the time of the tragedy, it was clear that an alternative solution to the Courts was badly needed. It can be argued that, with the Attorney General and, indeed, the State being defendants in some of the cases, it would be improper for them to be involved in promoting any alternative tribunal. If it is improper, it is, surely, only a technical impropriety, which can be excused in the light of the grave need to provide a solution to what is in danger of becoming a public scandal. It is true that there are some rough edges to the proposal, most notably the entitlement of the defendants in any High Court proceedings to seek costs from the plaintiffs on the discontinuance of such proceedings. It is to be hoped, however, that the defendants will recognise that the worst thing that could happen to them would be to win one of the cases. The costs which the various defendants have already incurred are no doubt considerable, but they are, in all probability, only, a modest percentage of the total costs which would be involved in defending each case through the High, and possibly, the Supreme Courts. The irony is, of course, that if the defendants or any of them were to succeed in their defence in any of the cases, the Order for costs to which they would be entitled would, in all likelihood, be unenforceable. So the defendants are

faced with the choice of either waiving the costs that they might be entitled to at this stage, or facing the risk of incurring much greater expense if they do succeed in defeating a claim. It cannot be emphasised too strongly that nobody is to be asked to abandon his or her right to pursue a claim through the Courts. Only those who are dissatisfied with the amount of the Tribunal's award have to decide whether to take it or to go ahead with their Court proceedings. Hopefully, the level of awards will be seen by the claimants as providing adequate compensation. It is laudable, however, to find that solicitors for some of the plaintiffs have indicated that they are prepared to continue with the litigation on behalf of any claimants who wish to pursue their cases. One of the less satisfactory aspects of the matter is that some of the leaders of the claimants' groups whose diligence and persistence on behalf of their members have been largely responsible for these recent developments have been quoted as, at best, not encouraging claimants to avail of the Tribunal. They have argued that the claimants' objectives also included the implementation of the Tribunal's report, the attribution of blame and the punishment of those responsible. Pursuing personal injury claims in the Courts is unlikely to achieve any of these aims. The Courts have no power to order the implementation of the Tribunal's recommendations and certainly not as part of a judgment in a personal injury claim. The finding of negligence by a jury is hardly the sort of "blame" the claimants have in mind. Again, a Judge in a civil action cannot direct that the civil prosecution he brought against any person, but can merely recommend it to the Director of Public Prosecu- tions. In these cases, the Director of Public Prosecutions has already decided, following the publication of the Tribunal's report, that no prosecution should be instituted. While accepting that monetary compensation is an inadequate remedy for the claimants, there must at least be a strong argument that the payment of compensation and the closing off of the claims process as quickly as possible is desirable, not only from the financial point of view, but also would be of general benefit to the claimants. The one further step that is open to the State to take which would go further towards alleviating the distress of the claimants is the rapid implementation of those aspects of the Tribunal's report which remain outstanding. • 265