In part 5, I discussed criminal liability and promised to mention the other types of legal liability. That I now do.
To repeat: only if a crime is involved does the possibility of arrest or imprisonment arise.
Other important differences between criminal and civil law remedies are:
- Jury trial: Except for minor crimes,trial is by jury. The only non-criminal cases triable by jury relate to defamation
- Standard of proof: To be guilty of a crime, the evidence must be found to show guilt beyond reasonable doubt (sometimes abbreviated to BRD). In non-criminal cases, the standard is much less demanding: the balance of probabilities, which means that something has to be shown to be more than 50% likely to be true. Yes, 50.1% is enough.
- No police:The police will not be involved in a civil case, except as individuals, or as members of an organisation like any other
- Not about "guilt":Civil trials do not deal in guilt, they deal with liability (to pay, usually) or to resolve conflicts over e.g. planning issues.
In the context of Ireland's banking crisis, some form of (civil) legal liability may arise for consideration under the following headings :
- Negligence - or, in plainer language, carelessness. It may be that some bankers failed in duties of care to their employers, to customers or to outsiders. Other than New Beginning, who indeed have had little enough success (as they warned was probable), there is little or no sign of people making such claims in the courts, even as defences when banks sue them
- Restitution/unjust enrichment - if I give you €50 and we both, for some reason, mistakenly think that I have only given you back the tenner I borrowed yesterday, the law says that you have been unjustly enriched. (That does not necessarily mean that the law will oblige you to give me €40 in restitution: if you discover the extra money without realising how you got it and buy drinks for all around, for example.) However, if I sell you a house whose real value is €100,000 for €200,000, the law does not recognise it as unjust enrichment
- Contract - for instance, if in return for their bonuses some bankers promised specific things which they have not delivered. I am unaware if this is a possibility - it seems unlikely that such issues could remain hidden for long. And, yes, this indicates more incompetence, in that clearly at least some bonuses were paid to those who steered the institutions "onto the rocks"
- Deceit/fraud - yes, this can be a civil matter as well. I await examples.
We are now approaching the end of this series of posts.
The final substantive part (no.9) will answer the question
So, they just get away with it, do they ?and the absolute last part will be a summary of the series.
Before we get to those last two, there will be a short digression on the subject of "arrest", and part 8 will address some issues that have been raised by readers.